UNIT:1

Nature and scope of Administrative Law

Introduction
The subject of administrative law is inseparably bound to two marvels that follow their origins to the nineteenth
century: the ascent of enormous state administrations intended to satisfy a perplexing cluster of cultural needs and
the advancement of liberal fair standards of social association and public authority. A great deal of administrative
law can be understood as the attempt to put the natural pressure out in these two wonders, the recognition that the
accomplishment of public purposes is dependent on a framework of full-time representatives, paid by the public and
faithfully to the state, and at the same time the belief that public authority is genuine when implanted into major rule
governmental issues and liberal social orders. To put it in a more concise manner, these are the objectives, from one
perspective of impartiality and ability, and then again, of a vote based system of democracy and liberal rights.

Administrative law: Nature, definition, and scope

Administrative law is the institution body for those which rules, regulates, and controls over the administration.
Administrative law is the legislation dealing with the interaction between citizens of a country and the government.
It describes regulatory and quasi-judicial authorities’ organizational and power structures to implement the rule of
law. Administrative law focuses specifically on regulatory policies and administrative processes. It provides for a
monitoring mechanism to avoid the spiralling of administrative agencies. Administrative law is not a codified law
and has evolved with time. This means that the authorities cannot misuse or abuse their powers.

Definition and Nature

Different scholars and jurists from time to time have defined Administrative law according to their own
understandings. According to Austin, the definition of the administrative law is, which determines the ends and
modes to which the sovereign power shall be exercised. In his view, the sovereign power shall be exercised either
directly by the monarch or directly by the subordinate political superiors to whom portions of those are delegated or
committed in trust.
According to Bernard Schwartz, Administrative Law is “the law applicable to those administrative agencies which
possess delegated legislation and adjudicatory authority.”
In the book “Introduction to American Administrative Law 1958”, Holland regards Administrative Law as “one of
six” divisions of public law.
Another jurist K.C. Davis defined administrative law as: “ Administrative Law is the law concerning the powers and
procedures of administrative agencies including especially the law governing judicial review of administrative
action.”

Scope of administrative law

Administration law, being an institution body adjudicates the organization, powers, and duties of administrative
authorities. The ultimate accentuation of the Administrative law is on the procedures for adjudication, based on the
principle of natural justice and rule of law. Administrative legislation also determines the essence and scope of the
powers deliberated by particular legislation to the government official. The parliament assigns to government
officials via legislation special powers and duties to allow them to work for the government. The conception of
administration law was founded on these principles,

● Principles of natural justice

● Rule of law
● Power is conferred on the administration by law

● No power is absolute or uncontrolled however broad the nature of the same might be there should be
reasonable restrictions on the exercise of such powers depending on the solution.
The composition, roles, and competencies of administrative organizations are discussed in administrative law. It
points out the strategies and processes that must be followed during solutions open to people whose rights and other
liberties are being violated by their actions. Administrative legislation lays down individuals’ rights and liabilities in
relation to public authorities and also defines the process of applying those rights and liabilities. This gives
institutional working oversight and responsibility.

Evolution of administrative law

There was a centralized administrative structure during the ancient period of the Mauryans and Guptas in India.
“The rule of dharma was in order.” This rule was observed by a man, the king himself, and nobody demanded
immunity. It had been said that it was only necessary for the government to adhere to dharma values and that the
kings and its officers were to obey and to maintain the rule of his region under the eye of Dharma. The power which
was within dharma was few in values such as natural justice and equality. Since the arrival of the British, the
regulatory law in India underwent several modifications. During colonial rule, Indian law was given by the colonial
authorities and was passed to be implemented into Administrative legislation. Upon independence, India became a
welfare state and the State’s operations were further intensified. When the government and regulatory authorities’
operations and powers expanded, ‘Rule of Law’ and ‘Judicial Review of State Activities’ were also required.

Role of administrative law

Administrative law has been upheld by including an instrument of controlling regulatory powers that are exercised.
Administrative law builds a balance between rights and public requirements. If we are conscious, wherever there is a
culture there is a confrontation between power and justice. “However, in the exercise of power, there are risks of
excess. On the one hand, it is not to do something and to let the famous Matsanayaya (big Fish is eating small fish)
prevail. The only way to fight this is to cooperate. Administrative law recognizes excess strength and battle actions.”
There has been a significant rise in science and technology and modernized structural shifts, along with a rise in
people’s expectations of quality of work, to quality of life. We are aware of socio-political and multidimensional
challenges that cannot be solved but by which citizens are faced with technical growth, “Administrative
development and administration regulatory law”. There is no way that that is not the case. The principles developed
by the Court to manage the misuse of Power of government are satisfactory.

Rule of law and Administrative law

“Rule of Law” assumes a significant position in administrative law. It gives assurance to individuals against the
subjective activity of authoritative specialists. The articulation ‘rule of law’ has been gotten from the French
expression ‘la Principal de legality’, which means an administration dependent on the standards of law. In
straightforward words, the term ‘rule of law, demonstrates the situation in a nation where, in primary, the law rules.
Law might be interpreted as meaning chiefly a standard or rule which oversees the outside activities of the people
and which is perceived and applied by the State in the organization of equity.
The concept of law is of ancient origin. It is said that Edward Coke was the one who introduced this expression
when he said the King must be under the eyes of god and law and hence the superiority of the statute over the
pretensions of the administrators. The principle of rule of law, in the present scenario, doesn’t contradict with the act
of giving discretionary powers upon the administration however then again it lays the lens accentuating on
explaining the way of their activity. It additionally guarantees that each man is limited by the standard rules that
everyone must follow whether he be a private resident or a public official; that private rights are shielded by the
ordinary law of the land that must be adhered to. Accordingly, the rule of law connotes that no one is denied of his
rights, privileges, and liberties by a regulatory activity; that the administrative authorities play out their capacities as
indicated by law and not self-assertively; that the rule that everyone must follow is most certainly not unlawful and
harsh; that the matchless quality of courts is maintained and judicial control of administrative activity is completely
secured.

The relationship between constitutional law and administrative law

There are noteworthy contrasts between Administrative law and Constitutional law. A Constitution is a supreme
law, an incomparable tradition that must be adhered to. No law is over the constitution and consequently should
fulfil its provisions and not be in its infringement. Administrative law thus is subordinate to protected law. As such,
while the Constitution is the class, authoritative law is an animal group. “The Constitution manages the structure of
the State and its different organs. Administrative law, then again, manages the organization. While the Constitution
contacts all parts of the law and manages general standards identifying with association and forces of the different
organs of the State”, Administrative law manages the forces and elements of the Administrative specialists.
Essentially the Administrative authorities should initially follow the Constitution and afterwards function according
to the Administrative law.

A brief outline of Administrative Law in the Indian Constitution

India’s Constitution is an extensive, intricate, and definite document. It consists of 395 Articles orchestrated under
22 sections and 9 schedules. It is likely the longest of the natural law now surviving worldwide. A few reasons have
added to the prolixity of the Indian Constitution. Initially, the Constitution managed the association and structure of
the Central Government in addition to the states. Also, in a federal constitution, the Centre-State relationship
involves critical significance. While other federal constitutions only have skeletal arrangements on this issue, the
Indian Constitution has detailed standards. Thirdly, the Constitution has decreased to composing numerous
unwritten shows of the British Constitution as the rule of group obligation of the Ministers, parliamentary
methodology, and so on. To expel common doubt among them, the importance to remember the Constitution point
by point, the arrangement of the Fundamental Rights, protection provided to minorities, Scheduled tribes scheduled
castes and backward classes, and so on was felt. The idea of social welfare was introduced in India for maintaining
social order within the citizens.
The constitution also incorporates the Directive Principles of State Policy. In conclusion, the Constitution contains
the fundamental principles of administration as well as numerous authoritative subtleties, for example, the provision
with respect to citizenship, official languages, public services, constituent apparatus, and so forth. In different
constitutions, these are typically left to be managed by the normal tradition that must be adhered to. The composers
of the Indian Constitution anyway felt that except if these arrangements were contained in the Constitution, a
newborn democracy may wind up in trouble, and the smooth and proficient working of the Constitution and the
majority process in the nation may be risked.
The type of administration has a nearby connection with the type of the Constitution and the previous must be fitting
to the last mentioned. It is very conceivable to debase the sacred component, without changing its structure, by
simply changing the type of the organization and making it conflicting with, and contradicted to, the soul of the
constitution. Since India was developing as a free nation after a long spell of outside standard, the nation needed law
based qualities. The constitution-creators along these lines thought it reasonable not to face superfluous challenges,
and to fuse in the constitution itself the form of organization also, rather than leaving it to the lawmaking body, with
the goal that the entire component may get suitable.
The Preamble to the Constitution lays out the main aims and the socio-economic priorities for implementing the
Indian Constitution. India is a religious country. In the world, there are numerous religious groups, however, given
this, there is a lay state in India. The constitution of India is built on the principle that all people are equal and a
citizen ‘s ethnicity is completely unrelated to their human rights. The Constitution provides equal freedom for all
faiths and assures that in socio-economic affairs the religion of the person is nothing to do. India has received adult
suffrage as a premise of decisions to the Lok Sabha and the State Legislative Assemblies. Each citizen of India, male
or female, who has arrived at the age of 18 years or over, has a privilege to cast a ballot with no separation. A
striking component of the Constitution is that it agrees with a stately and critical situation to the judiciary. Very
much arranged and all around directed legal apparatus had been presented in the nation with the Supreme Court at
the apex. The judiciary in India is allotted tasks that it has to carry out. It needs to administer equity between one
individual and another, and between the state and its residents. In this way, the Constitution of India is having a huge
impact on laws including administrative law.

Conclusion
The state’s ability to establish a parameter or to choose administrative capacities to comply with standard equity and
sensitivity standards moves after its transformation into social welfare assistance. Today, administration law is an
all-invading feature in practically all parts and capabilities of the general public. Administrative law more or less
concerns the association of forces and freedom for individuals and the ways in which people exercise their
competencies and solutions for people if administrative authorities mismanage their powers.
Administrative Law in India
Administrative law in India attempts to regulate administrative actions by controlling delegated legislation and
subjecting administrative discretionary actions to judicial review. It also provides for the constitution of tribunals
and their composition.
Delegated Legislation
When the functions of Legislature is entrusted to organs other than the legislature by the legislature itself, the
legislation made up by such organ is called Delegated Legislation. Such a power is delegated to the
executives/administrators to resolve the practical issues which they face on a day-to-day basis.
The practice of delegated legislation is not bad however the risk of abuse of power is incidental and hence
safeguards are necessary.

There are three measures of controlling abuse of power through delegated legislation (as adopted in India)-

● Parliamentary Control

Parliamentary control is considered as a normal constitutional function because the Executive is responsible to the
Parliament.

In the initial stage of parliamentary control, it is made sure that the law provides the extent of delegated power. The
second stage of such control involves laying of the Bill before the Parliament.

There are three types of laying-

Simple laying

In this, the rules and regulations made come into effect as soon as they are laid before the Parliament. It is done to
inform the Parliament, the consent of the Parliament with respect to its approval of the rules and regulations made
are not required.

Negative laying

The rules come into force as soon as they are placed before the Parliament but cease to have effect if disapproved by
the Parliament.

Affirmative laying

The rules made shall no effect unless approved by both the Houses of the Parliament.

Procedural Control

Procedural control means the procedures defined in the Parent Act (Act delegating the legislating power) have to be
followed by the administrative authority while making the rules.

It involves pre-publication of the rules so that the people who would be affected by the proposed rules know it
beforehand and can make representations if they are not satisfied.

After pre-publication is done and once all the concerned bodies, persons and authorities have been consulted the
rules are to be published in the official gazette so that the public is aware of the existence of the rules.

Judicial Control

The judiciary looks into the following aspects to determine the legal validity of the rules so made using the power so
delegated-

1. If the administrative legislation is ultra-vires the Constitution.

2. If the administrative legislation is ultra-vires the Parent Act.
3. If the administrative legislation is arbitrary, unreasonable and discriminatory.
 4. If the administrative legislation is malafide.
5. If the administrative legislation encroaches upon the rights of private citizens derived from the common
law, in the absence of an express authority in the Parent Act.
6. If the administrative legislation is in conflict with another statute.
7. Power of the legislating authority to legislate the rule.
8. If the administrative legislation is vague.
● Judicial Review

Judicial review deals with three aspects-

● Judicial review of legislative action.

● Judicial review of the judicial action.
● Judicial review of administrative action.

When it comes to administrative law judicial review of administrative action becomes a vital part of it.

An administrative authority must have discretionary powers to resolve real-time issues. However, the decisions
taken by exercising these discretionary powers must be reasonable. Reasonableness is the ‘Rule of Law’s’ response
to the challenge of discretion. It brings discretionary powers closer to ‘rule of law’ ideas of transparency,
consistency and predictability. Through the process of judicial review- administrative action and discretion are
checked and controlled.

Judicial review ensures the legality of the administrative action and keeps the administrative authority within its
bounds. The Court inquires if the administrative authority acted according to the law. However, the Courts cannot
and do not substitute the opinion of the administrative authority with their own.

Courts, in a matter challenging administrative actions, hence look, if there was a failure in the exercise of the power
of discretion, if there was an abuse of discretionary power, if there was any illegality and/or procedural impropriety.

● Administrative adjudication – Tribunals.

Tribunals are constituted for speedier adjudication of disputes and settlement of complaints. In a tribunal, matters
are adjudicated by a Bench comprising both judicial and non-judicial members. Tribunals are not, however, a
substitute for Courts. In India, there are a number of tribunals which are constituted under the Central Acts. Some of
the Tribunals are listed below.

1. Administrative Tribunal- constituted under the Administrative Tribunal Act, 1985.

2. Industrial Tribunal- constituted under the Industrial Dispute Act, 1947.
3. Railway Rates Tribunal- constituted under the Railway Act, 1989.
4. Claim Tribunal- constituted under the Motor Vehicle Act, 1939.
5. Income Tax Appellate Tribunal- constituted under Income Tax Act, 1961.
6. National Green Tribunal- constituted under National Green Tribunal Act, 2010.
7. Competition Appellate Tribunal- constituted under the Competition Act, 2002.

In L. Chandra Kumar v Union of India, the Supreme Court had held that tribunals are the court of first instance in
respect of the areas of law for which they were constituted. All the decisions of the Tribunals are, however, subject
to scrutiny before the Division Bench of the High Court within whose jurisdiction the concerned tribunal would fall,
through an appeal.

● Lokpal and Lokayuktas Act, 2013

The Lokpal and Lokayuktas Act, 2013 is an anti-corruption Act which provides for the establishment of the
institution of Lokpal which would inquire into allegations against public functionaries and matters connecting them.
The Act provides for an investigation into complaints of maladministration. The office of the Lokpal is an
equivalent to that of an Ombudsman.

The Act was a result of the massive public protest against corruption under the leadership of Anna Hazare.

The Lokpal is an officer of the Parliament having as his primary function, the duty of acting as an agent for the
Parliament for the purpose of safeguarding citizens against the abuse or misuse of administrative power by the
executive.

● Right to Information Act, 2005

The Act provides for the right to information of citizens to gain access to information under the control of public
authorities. The Act promotes transparency and accountability of every public authority.

The Act is essential as it keeps the citizenry informed and holds the Government and its agencies accountable to the
governed.

What do we study under Administrative Law?

Topic Sub-topics

Evolution and Scope of Administrative law. Nature, scope and development of administrative law.

Rule of law and administrative law.

Separation of Powers and its relevance.

The relationship between Constitutional law and

Administrative law.

Legislative Functions of Administration. Delegated legislation and its constitutionality.

Control Mechanism.

Sub-delegation.

Judicial Functions of Administration. Need for devolution of adjudicatory authority on

Administration.

Problems of administrative decision making.

Nature of Administrative Tribunals.

Principles of Natural Justice.

Judicial Control of Administrative action Judicial review of administrative action.

Evolution of the concept of Ombudsman.

Evolution and Scope of Administrative law.

Nature, scope and development of administrative law.

As one begins to study the specifics of a particular branch of law it becomes important to know why and how the
said branch of law came about.
Administrative law is a judge-made law which evolved over time. It is not a codified law. The need for it arose with
the increase in administrative actions and its discretionary powers.

Rule of law and administrative law.

The concept of ‘rule of law’ is that the State should be governed by principles of law and not of men. Administrative
laws ensures that ‘rule of law’ prevails despite the presence of discretionary powers vested in the administrators.
Administrative law developed to restrict the arbitrary exercise of powers by subordinating it to well-defined law.

Separation of Powers and its relevance.

‘Separation of power’ is one of the basics on which the State machinery works. However, with the increase in
administrative actions/powers, it is seen that the doctrine cannot be practised with rigidity. Every organ of the State
is dependent on the other for smooth functioning, thus, the doctrine of separation of power cannot be exercised by
placing the organs of the State in watertight compartments. There has to be a flexible approach while ensuring that
no organ encroaches upon the functions of another.

The relationship between Constitutional law and Administrative law.

As every law of the State must satisfy the Constitutional benchmark, it is essential to know the relationship between
the Constitutional law and the Administrative law of the State. Constitutional law is the genus and administrative
law its species, hence the judge-made law must comply with the constitutional provisions.

Legislative Functions of Administration.

Delegated legislation and its constitutionality.

The Administrative authorities are delegated the power to legislate by the Legislature. Administrative law examines
whether the power so delegated to the administrative authorities is permissible within the constitutional definition or
not.
1. Control Mechanism.
As the administrative authorities are given the discretionary powers to legislate delegated legislation; administrative
law puts in place a control mechanism which keeps a check on the power so exercised by the authorities through-
● Parliamentary control of delegated legislation,
● Judicial control of delegated legislation,
● Procedural control of delegated legislation.
1. Sub-delegation.
When administrative authorities further delegate the power delegated to them it is called sub-delegation. However,
such sub-delegation is allowed only when the Act delegating the power to the administrative authorities allows it.
Administrative law ensures that sub-delegation of power is as per the law and that such a provision (of sub-
delegation) does not make the administrator lethargic.
● Judicial Functions of Administration.

Need for devolution of adjudicatory authority on Administration.

The judiciary of the State could not put in place a mechanism for speedy adjudication, moreover, there was a
backlog of cases. Adjudicatory authority was hence devolved upon the administration to resolve the issue. However,
it is not an absolute substitute of the judiciary.
Problems of administrative decision making.
Though the administration has been given adjudicatory authority to a certain extent, there are lacunas in the
administrative adjudication. For instance, the procedure of a proceeding before an administrative adjudicatory
authority is not defined, there is an unsystematic system of appeal, the decisions of the authority are not recorded
and vesting of overlapping functions in the same authority are the problem in administrative adjudication.

Nature of Administrative Tribunals.

Thereafter, the nature of administrative tribunals is assessed. The Constitution, powers, areas pertaining to which a
Tribunal shall adjudicate is defined.

Principles of Natural Justice.

Administrative law requires that the administrative adjudicatory authority adjudicates matters applying the
principles of natural justice, which are namely-
○ Rule against bias: That no person should be a judge in one’s own case and that justice should not
only be done but seen to be done.
Audi Alteram Partem: That every person has the right to be heard before a matter is adjudicated in his
favour/against him.
Speaking order (Reasoned decisions)- That the adjudicating authority must provide the reason behind its
decision. This is a newly evolved principle which aims at curbing arbitrariness on part of the adjudicating
authority.
Judicial Control of Administrative action.
Judicial review of administrative action.
The judiciary keeps a check on the other organs of the State through judicial review. The grounds on which this
power is exercised on the administrative authority are-
● Abuse of discretion,
● Failure to exercise discretion,
● Illegality, irrationality and procedural impropriety.

Evolution of the concept of Ombudsman.

The concept of Ombudsman evolved to keep a check on the administrative action. An ombudsman is an independent
officer of the Legislature who supervises the administration and deals with complaints against maladministration by
the administrative authority. It is a check on the administrative bodies by the Legislature.

Conclusion
Administrative law is the law governing the Executive, to regulate its functioning and protect the common citizenry
from any abuse of power exercised by the Executive or any of its instrumentalities. It is a new branch of law which
has evolved with time and shall continue to evolve as per the changing needs of the society. The aim of
administrative law is not to take away the discretionary powers of the Executive but to bring them in consonance
with the ‘Rule of law’.

Reasons for the growth of Administrative Law

The Changing Role of the State

One of the primary reasons for the growth of administrative law is the changing role of the state. In the past, the
state’s role was limited to maintaining law and order and providing social welfare. However, in recent years, the
state has adopted a more positive policy and has undertaken to perform varied functions. As a welfare state, the
government has expanded its scope to provide education, healthcare and other services to citizens.
Inadequacies of the Judicial System
Another reason for the growth of administrative law is the inadequacy of the judicial system. The judicial system is
slow, costly, inept, complex and formalistic. It was overburdened and could not provide speedy disposal of even
important matters. In addition, important problems could not be solved by merely interpreting the provisions of
some statutes.
Instead, it required the consideration of various other factors, which could not be done by the ordinary courts of law.
Therefore, industrial tribunals and labour courts were established, which possessed the techniques and expertise to
handle these complex problems.

Inadequacies of the Legislative Process

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

Scope for Experiments in Administrative Process

One of the advantages of administrative law is that it provides scope for experiments in the administrative process.
Unlike legislation, it is not necessary to continue a rule until the commencement of the next session of the
legislature. Instead, a rule can be made, and tried for some time and if it is defective, it can be altered or modified
within a short period. Thus, legislation is rigid in character, while the administrative process is flexible.

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

Preventive Measures
Administrative authorities can take preventive measures, unlike regular courts of law. They do not have to wait for
parties to come before them with disputes. In many cases, these preventive actions may prove to be more effective
and useful than punishing a person after he has committed a breach of law. Inspection and grading of meat, for
example, answer the consumer’s need more adequately than does a right to sue the seller after the consumer is
injured.

Effective Enforcement
Administrative authorities can take effective steps to enforce the aforesaid preventive measures, such as suspension,
revocation and cancellation of licenses, destruction of contaminated articles, etc., which are not generally available
through regular courts of law.

Conclusion
Administrative law has witnessed tremendous growth over the years. Reasons for the growth of Administrative Law
include the changes in the philosophy of the state’s role, inadequacies of the judicial and legislative processes, the
need for flexibility and the ability of administrative authorities to take preventive measures and enforce them
effectively.
While administrative law has its advantages, it also has its challenges, such as the lack of transparency,
accountability and the possibility of abuse of power. However, with the right balance of power and effective
regulation, administrative law can continue to grow and serve the needs of society.

Relationship between Administrative Law and Constitutional Law.

Constitutional and administrative laws are the areas of law which establish and regulate the institutions of
government within states. They also encompass the internal governance of supranational legal orders. They are
increasingly concerned with the relationship between internal and external legal norms and the interaction between
multiple layers of government within and beyond states.

Relationship between constitutional and administrative law in India:

Both the constitutional and administrative law is a part of the public law in the modern State. It is logically
impossible to distinguish between administrative law from constitutional law and all attempts to do so are artificial.
Till recently, the subject of administrative law was dealt with & discussed in the books of constitutional law and no
separate & independent treatment was given to it.

Many definitions of administrative law, was included in constitutional law. According to Holland, the constitutional
law describes the various organs of the government at rest while administrative law describes them in motion.
Therefore according to this view, the structure of the legislative and executive comes within the preview of the
constitutional law but their functioning comes within the sphere of administrative law.

On one hand administrative law deals with the organization, function, powers and duties of administrative
authorities while constitutional law deals with the general principles relating to the organization and powers of the
various organs of the state and their mutual relationships and relationship of these organs with the individuals.

In other words constitutional law deals with fundamental while administrative law deals with details. It may also be
pointed out that the constitutional law deals with the rights and administrative law lays emphasis on public need.
The countries which have written constitutional law likewise India, the difference between constitutional law and
administrative law is not as nuclear as in England.

In such countries the source of constitutional law is constitution while the source of administrative law may be
statutes, statutory instruments, precedents and customs. India has a written constitution while the constitutional law
deals with the general principles relating to the organization and power of the legislature, executive and the
judiciary.

According to Mait Land, constitutional law deals with structure and the broader rules which regulate the function
while administrative law deals with the details of those functions. The dividing line between the constitutional law
and administrative law is a matter of convenience because every researcher of administrative law has to study some
constitutional law.

The importance of administrative law has not been adequately appreciated by governments, both centre as well as
the states. Indian administrative law has grown rather sporadically and unsystematically.

Thus in India the administrative action can be tested on the following points:
1. The action must have been taken in accordance with the rules and regulations.
2. The rules and regulations should be in accordance with the relevant statute.
3. The action, the rules, regulations must in accordance with the provisions of the constitution.
4. If the constitution is amended, the amendment of the constitution should be in accordance or conformity
with the basic structure of the constitution.

The separate existence of administrative law is at no point of time disputed; however, if one draws two circles of the
two branches of law, at a certain place they will overlap depicting their relationship and this area may be termed as
watershed in administrative law. In India, in the watershed one can include the whole control mechanism provided
in the Constitution for the control of administrative authorities i.e. Articles 32, 136, 226, 227, 300 and 311.

It may include the directives to the State under Part IV. It may also include the study of those administrative
agencies which are provided for by the Constitution itself under Articles 261, 263, 280, 315, 323-A and 324. It may
further include the study of constitutional limitations on delegation of powers to the administrative authorities and
also those provisions of the Constitution which place fetters on administrative action i.e. fundamental rights.

Today administrative law is recognized as a separate, independent branch of the legal discipline. The correct
position seems to be that if one draws two circles of administrative law and constitutional law at a certain place they
may overlap and this area may be termed as the watershed in administrative law.

Doctrine of water shades in administrative law:

The doctrine of water shades is very important as it gives a base to establish a line of proper demarcation of the
proper boundaries for the functioning of both the laws. It defines the relationship between the constitutional law and
administrative law which was defined by various English authors like Dicey and Holland. Their definition clearly
states that the laws are dependent and interconnected to each other.

Evolution of constitutional law and administrative law in India:

Administrative law has become the most eminent feature of the government in today's era and at the same time; it is
also the most in ancient periods. Administrative law was alive even in ancient times. The history of the same can be
traced back to the Mauryas and Guptas who have a well-organized and centralized administration.

The rule of Dharma was in action. Every man of the monarch observed this rule and no one claimed immunity. It
was said that the administration could only be run on the principles accepted by dharma and thus was followed by
the kings and his officers. Principles such as natural justice and fairness were few of the power which was in the
ambit of dharma.

The parameter of dharma was wider than the rule of law or due process of law. For a better understanding of
administrative law and its functions, it is necessary to know about the sources of it. In India, the Administrative law
is the part of ordinary law of land. The sources of administrative law in India are different from other countries like
America and England.

In America, the sources of Administrative law are statutes, common laws, and implied powers of the administration.

In England, the sources of this law are statutes, precedent, subordinate legislation, and significant case laws.

Constitutional law is the most important source of administrative law in India. It is the origin and soul of
administrative law. In other words, we can say that constitutional law is the mother of Administrative law. So,
without a constitution, administrative law cannot perform its functions and work properly because it totally depends
on the soul of our country’s constitutional law.

Statutes are also a great source of this law. It also came from the constitution. State legislature gives the lawmaking
power to parliament. The powers for administration have been even guaranteed under statues and all such powers
have to conform to the statutory pattern.

The ordinance is also a good source of this law. It empowers the President and Governor to promulgate during the
recess of parliament under Article 123 and during the recess of state legislature under Article 213 respectively. This
provision brings flexibility on the level of union and the state to make laws which are necessary for the emergency
situations and circumstances in which certain laws and acts declared void by courts of law.
The Chief Executive has the great ordinance making power but it cannot be unlimited. Ordinances can be issued by
the Governor on the advice of Council of Ministers. There are a need and the requirements of approval for the
confirmation of ordinance.

In the Rustom Cavasjee Cooper v. Union Of India (Bank Nationalisation case) {1}, the Hon’ble Supreme Court held
that:
“If an ordinance is made on collateral grounds then it can be challenged before the Supreme Court”.

Later on S.R. Bommai v. Union of India, {2} the Supreme Court has held that proclamation of emergency on
ground of failure of constitutional machinery under Article 356 is subject to judicial review. Accordingly,
Presidential Rule in certain states was held to be unconstitutional.

Conclusion:
The relationship between constitutional law and administrative law is not very emboldened to be seen with naked
eyes but the fact remains that concomitant points are neither so blurred that one has to look through the cervices of
the texts with a magnifier to locate the relationship. The aforementioned veracities and illustrations provide a cogent
evidence to establish an essential relationship between the fundamentals of both the concepts. If doubts still persist,
the very fact that each author, without the exception of a single, tends to differentiate between the two branches of
law commands which create the hypothecation of a huge overlap.

UNIT:2

Basic concepts of Administrative Law

Prologue
Administrative law deals with the legal control of the government and related administrative powers. On the other
hand, judicial review is a process under which executive or legislative actions are subject to review by the judiciary.

Administrative Law
Administrative law is the law relating to the control of governmental power. The primary objective of administrative
law is to limit the powers of the government to protect citizens against their abuse. In other words, we can define
administrative law as the body of rules, regulations, orders, and decisions created by the administrative agencies of
government.

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

Nature of Administrative Law

Administrative law deals with the powers of administrative authorities, the exercise of such powers remedies for
aggrieved persons by such law, etc. The administrative process is considered necessary evil in all progressive and
developing societies, particularly in a welfare State. Such a process may affect the right of citizens of the country. It
has been observed by Lord Denning that Proper exercise of the new powers of the executive lead to the welfare
state, but if abused they lead to the totalitarian State.

Scope of Administrative Law

Administrative law deals with the following aspects:
1. Who are administrative authorities?
2. The powers exercised by such authorities.
3. Limitations of such powers exercised by such authorities.
4. Procedure for using administrative powers.

According to Friedman, the scope of administrative law is as under:

1. It deals with law-making powers of administrative authorities under common law and various statutes.
2. Judicial and quasi-judicial powers of administrative authorities i.e. Court and Tribunal to deal with
problems and remedies (Article 136 and 227 of the Constitution of India).
 3. Executive power of administration i.e. concentration of power.
4. Power of the court to supervise administrative authorities.
5. Legal liability of public servant.

According to M.C Jain, the scope of administrative law includes:

Delegated legislation, indispensability, permissibility and constitutionality, modes of delegation, procedural
formality required to be observed by an administrative agency, safeguard against abuse of power and judicial
control.

In respect of judicial functions, it covers the judicial function of administrative agencies, Administrative Tribunal,
procedural guarantee, the finality of the decision, the jurisdiction of the Supreme Court and the High Court over the
administrative agencies and Tribunals.

It also includes immunities of administrative agencies and bodies from suits and remedies available against the
Union of India and the State instrumentalities.

Administrative Law and Constitutional Law

1. A Constitution is the supreme law of the country. No law is above the Constitution of India and hence,
every law must satisfy its provisions and not be in its violation. So, administrative law is subordinate to
constitutional law. In another word, while Constitution is the genus, administrative law is a species.
2. Constitution deals with the structure of the State and its various organs, whereas administrative law deals
only with the administration of the State.
3. While Constitution touches all branches of law and deals with general principles relating to organization
and powers of the various organs of the State, administrative law deals only with the powers and functions
of the administrative authorities.
In a nutshell, the administrative authorities should follow the Constitution first and then work as per the
administrative law.

Administrative Law in India

Administrative law in India meant to regulate administrative actions by controlling delegated legislation and
subjecting administrative discretionary actions to judicial review. It also provides for the Constitution of Tribunals
and their composition.

Delegated Legislation
When the functions of the legislature are entrusted to organs other than the legislature by the legislature itself, the
legislation made up by such organ is called delegated legislation. Such power is delegated to the executives or
administrators to resolve the practical issues which they have to face on a day-to-day basis. The practice of
delegated legislation is not bad, however, the risk of abuse of power is incidental and hence, safeguards are
mandatory. There are three measures to control abuse of power with the help of delegated legislation as adopted in
India, which are as follows:

Parliamentary Control
Parliamentary control is considered as a normal constitutional function because the executives are responsible for
the Parliament. At the initial stage of Parliamentary control, it is made sure that the law provides the extent of
delegated power. The second stage of such control involves laying of the Bill before the Parliament.

There are three types of laying:

1. Simple Laying: In simple laying, the rules and regulations come into effect as soon as they are laid down
before the Parliament. It is laid down to inform the Parliament, but the consent of the Parliament with
respect to its approval for the rules and regulations are not required.
2. Negative Laying: The rules will come into force as soon as they are placed before the Parliament, but cease
to have effect if disapproved by the Parliament.
3. Affirmative Laying: The rules shall have no effect unless approved by both the houses of the Parliament.

Procedural Control
Procedural control means that the procedures defined in the Parent Act (Act delegating the legislating power) have
to be followed by the administrative authority while making the rules. It involves pre-publication of the rules, so that
the people who would be affected by the proposed rules know it beforehand and can make representations if they are
not satisfied. After pre-publication is done and once all the concerned bodies, persons, and authorities have been
consulted, the rules are to be published in the official gazette, in order to inform the public about the existence of the
rules.

Judicial Control
The judiciary looks into the following aspects to determine the legal validity of the rules so made, using the power
so delegated:
1. If the administrative legislation ultra-vires the Constitution.
2. If the administrative legislation ultra-vires the Parent Act.
3. If the administrative legislation is arbitrary, unreasonable, and discriminatory.
4. If the administrative legislation is mala fide (in bad faith).
5. If the administrative legislation encroaches upon the rights of private citizens derived from the common
law, in the absence of express authority in the Parent Act.
6. If the administrative legislation is in conflict with another Statute.
7. Power of the legislating authority to legislate the rules.
8. If the administrative legislation is vague.

Administrative Adjudication Tribunals

Tribunals are constituted for speedy adjudication (a formal judgment on a disputed matter) of disputes and
settlement of complaints. In a Tribunal, matters are adjudicated by a bench comprising both judicial and non-judicial
members. However, Tribunals are not a substitute for courts. In India, there are a number of Tribunals which are
constituted under the Central Acts.

Some of the tribunals are listed below:

1. Claim Tribunal Constituted under the Motor Vehicle Act, 1939.
2. Industrial Tribunal Constituted under the Industrial Dispute Act, 1947.
3. Income Tax Appellate Tribunal Constituted under Income Tax Act, 1961.
4. Administrative Tribunal Constituted under the Administrative Tribunal Act, 1985.
5. Railway Rates Tribunal Constituted under the Railway Act, 1989.
6. Competition Appellate Tribunal Constituted under the Competition Act, 2002.

In L Chandra Kumar V. Union of India case, the Supreme Court had held that Tribunals are the court of the first
instance in respect of the areas of law for which they were constituted. All the decisions of the Tribunals are subject
to scrutiny before the Division Bench of the High Court within whose jurisdiction the concerned Tribunal would
fall, through an appeal.
Lokayuktas and RTI Act (Lakpal and Lokayuktas Act, 2013)

The Lokpal and Lokayuktas Act, 2013 is an Anti-Corruption Act, which provides for the establishment of the
institution of Lokpal which would inquire into allegations against public functionaries and matters connected to
them. The Act provides for an investigation into complaints of maladministration (mismanagement). The office of
the Lokpal is equivalent to that of an Ombudsman.

The Act was a result of the massive public protest against corruption under the leadership of Anna Hazare. The
Lokpal is an officer of the Parliament having as his primary function, the duty of acting as an agent for the
Parliament for the purpose of safeguarding citizens against the abuse or misuse of administrative power by the
executive.

Right to information Act, 2005

The Act provides for the right to information of citizens to gain access to information under the control of public
authorities. The Act promotes the transparency and accountability of every public authority. The Act is essential as it
keeps the citizenry informed and holds the government and its agencies accountable to the governed.
Importance of Administrative Law
Administrative law plays an important role in changing the era of the administrative system. It can be understood
with the help of the following points:
1. In Changing Nature of State: The Police State has changed to Welfare State in the 20th Century. The
traditional functions of the State i.e. defence and administration of justice have undergone a drastic change.
The State undertakes various functions for the benefit of the people in the 20th century.
2. To Remove the Shortcomings of the Judicial System: The judicial system has proved to be inadequate to
decide all types of disputes. It was slow, expensive, complex, and having various other drawbacks that lead
to the enhancement of the importance of administrative law.
3. Remove the Inadequacy of Legislative Process: The legislative process is not capable of laying down
detailed rules and regulations for the functioning of the State. Thus, administrative law helps in removing
this issue.
4. Reform in Social Life: The social aspect has undergone a drastic change amongst the citizens of the State.
More and more laws were required to deal with complex situations in the daily life of citizens.
5. Increasing Demand from People: Merely defining the right of citizens was not sufficient, but also solving
their problem was important for the State.
6. Enhance the Scope for Experiment: The present law-making process is time-consuming and cannot deal
with all problems of the society. Therefore, it is necessary for a different aspect of making laws.
7. Preventive Measures: Administrative authorities also implement preventive measures like licensing to
liquor shops, rate fixing, etc.
8. State Economy: The administrative authorities frame national policies and plans for achieving goals
contemplated in the Constitution of India.
9. Regulatory Measures: Administrative authorities implement regulatory measures in relation to industrial
production, manufacturing, and distribution of essential commodities.
10. Industries: Industrialization leads to various labor issues. The administrative machinery was needed to
solve such issues.

Natural Justice
Natural justice is a concept of common law and represents higher procedural principles developed by the courts,
which every judicial, quasi-judicial and administrative agency must follow while taking any decision adversely
affecting the rights of a private individual. In short, natural justice implies fairness, equity, and equality.

It is basically a technical terminology for the rule against bias (nemo judex in causa sua) and the right to a fair
hearing (audi alteram partem). While the term natural justice is often retained as a general concept, it has largely
been replaced and extended by the 'general duty to act fairly'.

The basis for the rule against bias is the need to maintain public confidence in the legal system. Bias can take the
form of actual bias, imputed bias, or apparent bias. The mere fact that a decision affects the rights or interests is
sufficient to subject the decision to the procedures required by natural justice.

Principles of Natural Justice

In India, the principles of natural justice is firmly grounded in Article 14 and 21 of the Constitution. With the
introduction of the concept of substantive and procedural due process in Article 21, all that fairness which is
included in the principles of natural justice can be read into Article 21. The violation of principles of natural justice
results in arbitrariness and therefore, it also violates the equality clause of Article 14.

The principle of natural justice encompasses following two rules:

Audi Alteram Partem
Justice cannot prevail if there is no equality. Equality is one of the pillars on which the entire legal system is based.
Under the Indian Constitution, the principles of natural justice can be traced under Article 14 and Article 21.

The principle of Audi Alteram Partem is the primary notion of the principle of natural justice. It is derived from The
Latin phrase audiatur et altera pars. It means 'hear the other side', or 'no man should be condemned unheard' or 'both
the sides must be heard before passing any order'.
The motive of this maxim is to provide an opportunity for other parties to respond to the evidence against him. This
ensures a fair hearing and fair justice to both parties. Under this doctrine, both parties have the right to speak. No
decision can be declared without hearing both the parties. This principle aims to allow both parties to defend
themselves.

Essential elements of this maxim include:

1. Right to notice.
2. Right to present case and evidence.
3. Right to rebut adverse evidence i.e. cross-examination and legal representation.
4. Disclosure of evidence to the party.
5. Report of inquiry to be shown to the other party.
6. Reasoned decisions or speaking orders.

Nemo Judex in Causa Sua (Rule against Bias)

It is popularly known as the rule against bias. It is the minimal requirement of the natural justice that the authority
giving decision must be composed of impartial persons acting fairly, without prejudice and bias.

According to the Lectric Law Library's Lexicon:

any mental condition that would prevent a judge from being fair and impartial is called bias. It may be ground for
disqualification of the judge in question.

It is also defined as:

A predisposition or a preconceived opinion that prevents a person from impartially evaluating facts that have been
presented for determination; a prejudice.

This principle of natural justice consists of the rule against bias or interest and is based on three maxims:
1. No man shall be a judge in his own cause.
2. Justice should not only be done but manifestly and undoubtedly be seen to be done.
3. Judges, like Caesar's wife, should be above suspicion.

Kinds of Bias
1. Personal Bias: It arises out of the personal or professional relationship or hostility between the authority
and the parties. It's human nature that we try to give the favorable decisions to our friends or relatives,
whereas using the same as a weapon against the enemies. There are two kinds of test for personal bias:

1. Reasonable Suspicion of Bias Looks mainly outward appearance.

2. Real Likelihood of Bias Focuses on court's own evaluation of possibilities.

2. Pecuniary Bias: Any financial interest, howsoever small it may be, is bound to vitiate the administrative
action and the judicial opinion is unanimous as to it.

3. Subject-matter Bias: The situations where the deciding officer is directly or indirectly is the subject-matter
of the case. In R v. Deal justices case, the Magistrate was not declared disqualified to try a case of cruelty
to an animal on the ground that he was a member of the royal society for the prevention of cruelty to
animals, as this did not prove a real likelihood of bias.

4. Departmental Bias: The problem of departmental bias is something which is inherent in the administrative
process and if it is not effectively checked, it may negate the very concept of fairness in the administrative
proceeding. The problem of departmental bias arises in different context i.e. when the functions of judge
and prosecutors is combined in the same department. It. is not uncommon to find that the same department
which initiates a matter also decides it, therefore, at times, departmental fraternity and loyalty militates
against the concept of fair hearing.

5. Preconceived Notion Bias: Bias arising out of preconceived notions is a very delicate problem of
administrative law. On the one hand, no judge as a human being is expected to sit as a blank sheet of paper.
On the other hand, preconceived notions would vitiate a fair trial.
The problem of bias arising from preconceived notions may have to be disposed of as an inherent limitation of the
administrative process. It is useless to accuse a public officer of bias merely because he is predisposed in favor of
the same policy in the public interest.

Doctrine of Necessity
The bias would not disqualify an officer from taking an action, if no other person is competent to act in his place.
This exception is based on the doctrine of necessity. The doctrine of necessity makes it imperative for the authority
to decide and considerations of judicial propriety must yield. It can be invoked in cases of bias, where there is no
authority to decide the issue.
If the doctrine of necessity is not allowed full play in certain unavoidable situations, it would impede the course of
justice itself and the defaulting party would benefit from it. If the choice is between either to allow a biased person
to act or to stifle the action altogether, the choice must fall in favor of the former as it is the only way to promote
decision-making.

Therefore, the Court held that bias would not vitiate the action of the speaker in impeachment proceedings and the
action of the Chief Election Commissioner in election matters.

Rule of law:
“The bedrock of our democracy is the rule of law and that means we have to have an independent judiciary, judges
who can make decisions independent of the political winds that are blowing.”-Caroline Kennedy

In order to understand the concept of rule of law, it is to be comprehended that the state is governed not by the ruler
or the nominated representatives of the people but by the law. The term ‘Rule of Law’ is nowhere defined in the
Indian Constitution but this term is often used by the Indian judiciary in their judgments. Rule of law has been
declared by the Supreme Court as one of the basic features of the Constitution so it cannot be amended even by the
constitutional amendment. Rule of law is seen as an integral part of good governance.[1]

As per rule of law, it is required that the people should be governed by the accepted rules rather than the decisions
that are arbitrarily taken by the rulers. For this, it is essential to keep in mind that the rules that are made should be
general and abstract, known and certain and it should apply equally to all individuals. Legal limitation on
government is the essential attribute of constitutionalism. Rulers are not above law under the concept of
constitutionalism, government power is divided with laws enacted by one body and administered by another and for
that an independent judiciary exists to ensure laws.[2]

Concept of Rule of Law

The originator of the concept of rule of law was Sir Edward Coke the Chief Justice in James I Reign.
The concept of rule of law is of old origin. Greek philosophers such as Plato and Aristotle discussed the concept of
rule of law around 350 BC. Plato wrote “Where the law is subject to some other authority and has none of its own,
the collapse of the state, in my view, is not far off; but if law is the master of the government and the government is
its slave, then the situation is full of promise and men enjoy all the blessings that the gods shower on a state”.
Aristotle wrote “law should govern and those who are in power should be servant of the laws.”

The derivation of the phrase ‘ Rule of Law’ is from the French phrase ‘la principe de legalite’ which implies
principle of legality. By this phrase it refers to a government based on principles of law and not of men. One of the
basic principles of Constitution is rule of law and this concept is up to standard in both India and America
Constitution.

The doctrine of rule of law is the entire basis of Administrative law. As discussed by Aristotle, the concept of rule of
law is grounded in the ideas of justice, fairness and inclusiveness. Today, an intricate chain of fundamental ideas is
incorporated in rule of law which further encompasses equality before law, equal treatment before the law for
government, independence of judiciary, consistency, transparency and accountability in administrative law.[3]
Meaning of Rule of Law
To simply understand the meaning of rule of law, it means that no man is above law and also that every person is
subject to the jurisdiction of ordinary courts of law irrespective of their position and rank.

The term ‘rule of law’ is originated from England and India has taken this concept. The concept of rule of law
further requires that no person should be subjected to harsh or arbitrary treatment. The word ‘law’ in rule of law
means that whether he is a man or a society, he must not be governed by a man or ruler but by law. In other words,
as per Article 13 of the Indian Constitution rule of law means law of land.

According to Black’s Law Dictionary: “Rule of Law” means legal principles of day to day application, approved by
the governing bodies or authorities and expressed in the form of logical proposition.

According to Oxford Advance Learner’s Dictionary: “Rule of Law” means the situation in which all the citizens as
well as the state are ruled by the law.

Postulates of Rule of Law

In 1885, Professor A.V Diceydeveloped this concept of Coke and propounded three principles or postulates of the
rule of law in his classic book ‘Law and the Constitution.’ According to Professor A.V Dicey, for achieving
supremacy of law three principles of postulates must be followed which are as follows:
·Supremacy of law,
·Equality before law and
·Predominance of Legal Spirit

1. Supremacy of law
As per the first postulate, rule of law refers to the lacking of arbitrariness or wide discretionary power. In order to
understand it simply, every man should be governed by law.
According to Dicey, English men were ruled by the law and the law alone and also where there is room for
arbitrarinessand that in a republic no less than under a monarchy discretionary authority on the part of the
Government must mean insecurity for legal freedom on the part of its subjects. There must be absence of wide
discretionary powers on the rulers so that they cannot make their own laws but must be governed according to the
established laws.

2. Equality before law

According to the second principle of Dicey, equality before law and equal subjection of all classes to the ordinary
law of land to be administered by the ordinary law courts and this principle emphasizes everyone which included
government as well irrespective of their position or rank. But such element is going through the phase of criticisms
and is misguided. As stated by Dicey, there must be equality before law or equal subjection of all classes to the
ordinary law of land. French legal system of Droit Administrative was also criticized by him as there were separate
tribunals for deciding the cases of state officials and citizens separately.

3. Predominance of Legal Spirit

According to the third principle of Dicey, general principles of the Indian Constitution are the result of the decisions
of the Indian judiciary which determine to file rights of private persons in particular cases. According to him,
citizens are being guaranteed the certain rights such as right to personal liberty and freedom from arrest by many
constitutions of the states (countries). Only when such rights are properly enforceable in the courts of law, those
rights can be made available to the citizens. Rule of law as established by Dicey requires that every action of the
administration must be backed and done in accordance with law. In modern age, the concept of rule of law oppose
the practice of conferring discretionary powers upon the government and also ensures that every man is bound by
the ordinary laws of the land as well as signifies no deprivation of his rights and liberties by an administrative
action.[4]
Rule of Law Under Indian Constitution
In order to develop Indian democracy, rule of law has played a great role. At the time of framing of Constitution, the
framers had two options i.e. USA and England. Some of the provisions were adopted from USA and some of them
were adopted from England. Rule of law was adopted from England by our constitutional fathers and many
provisions were incorporated in the Indian Constitution. Indian Constitution is considered to be supreme and no one
is above Indian Constitution. Rule of law is also given impliedly in the preamble and such concept is enshrined in
Part III of the Indian Constitution.

In case of violation of such rights, one can approach Supreme Court or High Court under Article 32 and 226 of the
Indian Constitution. The Constitution of India is enriched with the principles of law i.e. justice, equality and liberty.
Any law made by the Central government or State government must be complied in accordance with the
Constitution of India. If any law made by the legislature contravenes with the provisions of the Constitution then
such law will be declared void.

Under Article 32 of the Indian Constitution, the Supreme Court has the power to issue writs in the nature of Habeas
Corpus, mandamus, prohibition, quo warranto, and certiorari. The power of judicial review is also given to Supreme
Court in order to prevent any ultra vires law so as to preserve ‘Rule of law’.

Role of Indian Judiciary

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

ADM Jabalpur v. Shivkant Shukla [5]

This case is also known as “Habeas Corpus case”. It is one of the most importantcase when comes to rule of law.
The question that was raised before the hon’ble court was that whether there was any rule of law in India apart from
Article 21 of the Indian Constitution. It was in context relating to the proclamation of emergency where the
enforcement of Articles 14, 21 and 22 were suspended.

Som Raj v. State of Haryana [6]

In this case it was held that the absence of arbitrary power is the postulate of rule of law upon which the whole
constitutional edifice is dependent.

Union of India v. Raghubir Singh [7]

In this case it was held by the court that a considerable degree that governs the lives of the people and regulates the
State function flows from the decision of the superior courts.

Chief Settlement Commissioner, Punjab v. Om Prakash[8]

In this case, Supreme Court observed“In our constitutional system, the central and most characteristic feature is the
concept of rule of law which means, in the present context, the authority of law courts to test all administrative
action by the standard of legality. The administrative or executive action that does not meet the standard will be set
aside if the aggrieved person brings the matter into notice.”

Keshvananda Bharti v. State of Kerela [9]

In this case, the Supreme Court enunciated the concept of rule of law as one of the most important aspects of
doctrine of basic structure.

Maneka Gandhi v. Union of India [10]

In this case Supreme Court declared that Article 14 strikes against arbitrariness.

Gadakh Yashwantrao Kankarrao v. Balasaheb Vikhe Patil [11]

In this case, the ration laid down was “If the rule of law has to be preserved as the essence of the democracy of
which purity of elections is a necessary concomitant, it is the duty of the courts to appreciate the evidence and
construe the law in a manner which would sub serve this higher purpose and not even imperceptibly facilitate
acceptance, much less affirmance, of the falling electoral standards. For democracy to survive, rule of law must
prevail, and it is necessary that the best available men should be chosen as people's representatives for proper
governance of the country. This can be best achieved through men of high moral and ethical values who win the
elections on a positive vote obtained on their own merit and not by the negative vote of process of elimination based
on comparative demerits of the candidates.”

Secretary, State of Karnataka and Ors. v. Umadevi [12]

A Constitution Bench of this Court has laid down the law in the following terms:“Thus, it is clear that adherence to
the rule of equality in public employment is a basic feature of our Constitution and since the rule of law is the core
of our Constitution, a court would certainly be disabled from passing an order upholding a violation of Article 14 or
in ordering the overlooking of the need to comply with the requirements of Article 14 read with Article 16 of the
Constitution.”

Conclusion
From the above mentioned discussion, it can be concluded that Supremacy of law is the Aim, Rule of Law is the
best tool to achieve the Aim. Some of the efforts are also taken by the court where the Rule of Law is linked with
Human Rights of the people. Strategy is being evolved by the court by which government can be forced not only to
submit to law but also to create conditions where capacities can be developed by the people so as to enjoy their
rights in proper and meaningful manner.

In the Indian society, the rule of law has not achieved the intended results. A few examples where rule of law was
upheld by our judiciary and ensured justice can be clearly seen in the creation of new avenues seeking remedies for
human rights violations by filing of PIL pleas.

The originator of this concept i.e. Sir Edward Coke, the Chief Justice of King James I’s reign maintained that the
King should be under God and the law and also he established the supremacy of law against the executive and that
there is nothing higher than law.

Interpretation of Dicey's Principle of Rule of Law

Dicey concept
Dicey is one of the well known jurists of England and he has written a famous book “Law of the Constitution”. One
should know the difference between administrative law and the rule of law. People who are in government job have
different law from ordinary citizens and the rule of law is equal for everyone whether he is Prime minister of India
or a normal clerk working in an office. The same law will be applicable to both of them, no discrimination will be
done under the rule of law and rule of law is supreme in nature.
Dicey was against making different rules for a different class of people so he stood by against this concept and
promoted the idea of Rule of law. Here a term is used “Droit administrative” was introduced by Napoleon and in
France, it was known as Droit Administratif. France was having separate administrative court for dealing with the
matter. According to this action by the citizens against an official for a wrongful act committed in their official
capacity will be dealt by the special court not by the ordinary courts of law. Droit administratif does not consist of
rules and law made by the French parliament but it includes a rule which is developed by the judges of the
administrative court.
The doctrine of Rule of law has 3 meaning in Dicey book.

1. Supremacy of law.
2. Equality before the law.
3. The predominance of a legal spirit.
Merit and Demerits of the Dicey Concept
Merits:
1. Help in making limits to the power of administrative authorities.
2. A major role in growth and recognition of administrative law.
3. Act as a scale for the test of administrative action.
Demerits:
1. His theory was not fully accepted during that era also.
2. Failed to distinguish between discretionary and arbitrary power.
3. He misunderstood the concept of Droit administration which was actually successful in France.

Rule of law
Rule of law is a product of struggle by the people from centuries for recognition of their inherent rights and the
concept of a rule is very ancient and old. During the ancient times, the concept of rule of law was discussed by the
Greek philosopher Aristotle and Plato at the time of 350 BC so now you can imagine how old this concept. Plato has
written that if rule of law under the supervision of any law than it doesn’t have any value and the concept of state
will get collapsed and if the law is master of government and government work as a slave for law then the concept
of state will work effectively and humans can enjoy their rights.
According to Plato the meaning of rule of law is that it is supreme in nature and nobody is above the law.
According to Aristotle has written that law should be the final sovereign of the state.
According to Sir Edward Coke “Rule of Law” means the absence of arbitrary power on the part of Government.
This phrase was derived from the French phrase “la Principe de legality” which means that the principle of legality
whatever the legal system principle is called a rule of law. Which refers to government is based on the principles not
on any individuals and according to the law everything will move. Rule of law is the basic principle of the English
constitution and this doctrine is accepted by the US and as well as India also.
The entire basis of Administrative law is the Rule of law and delegated legislation is the backbone of administrative
law.

Development
Rule of law was developed by a British jurist Albert Venn Dicey in his book called “The Law of the Constitution”
1885. In this book, he develops this concept and he identifies 3 principles while establishing the rule of law.
According to Albert Venn Dicey rule of law first meaning is “No man is punishable except for a Distinct breach of
Law” established in the ordinary legal manner before the ordinary court. The government or any high-class authority
cannot punish any individual on the personal ground till the time an individual has committed an offence and if the
offence is committed then proper procedure and trail will be conducted and in case the final verdict is that the
offence is committed then physical or economic punishment will be given to the accused person. This clearly
indicates that even if 100 criminals are not arrested is ok rather than punishing one innocent person.
“No man is above the law” every man, whether he is from a higher rank or whatever his position is subjected to
ordinary law under the jurisdiction of the ordinary court. No man will be derived from his personal property until the
time he has breached any law established by the ordinary court. Article 14 of The Constitution of India also talk
about that “Every Man is equal before the law, no one is above”.
Constitutional rights are the source of a judicial decision it means that the source of rights is not the constitution but
the rules or law enforcement by the court. The British constitution is the result of judicial result and all the rights are
given under the Constitution is decided and framed from some or the other judicial decisions.
The principle of Rule of law is accepted by Article 14 of the Constitution and it has 2 main rule that no man is above
the law and no man is punishable except for a breach of law and the last rule given above is not accepted by our
constitution. So, the first and second rule applies to the constitution but the third rule of dicey is not accepted by our
Indian system. All rules passed by the legislature must be within the provision of the Constitution and if any law is
made which encroached any of the provisions of the constitution then it will be declared as void by the Supreme
Court.

Basic Principles of Rule of Law

1. Law is supreme and nobody is above the law.
 2. All the things should be done according to a law not as per whim.
3. No person should be suffered except for the breach of law.
4. Absence of arbitrary is the soul of the rule of law.
5. Equality before the law and equal protection of the law.
6. Speedy trial.
7. The fair and just procedure should be conducted.
8. Independent and impartial judiciary.
Kesavananda Bharati vs. the State of Kerala under this case the principle of Basic Structure was propounded and it
was said that any part of the Constitution can be amended without disturbing the basic structure of it.
Indira Nehru Gandhi vs. Raj Narain, the court held that rule of law is also part of the basic structure and in the list
rule of law was also added and it means that no amendment can be done in rule of law.
The State of Bihar vs. Sonawati Kumari, it is an integral part of Rule of law that all the authority within the State
including executive government should be bound to obey the rules.
In case of Bachan Singh vs. the State of Punjab, popularly known as “Death Penalty Case” the rule of law is free
from arbitrary action if anywhere any action is done with arbitrary power then it will be considered as the denial of
the concept of Rule of Law.
In case of Som Raj vs. State of Haryana, that absence of arbitrary power is absolute motive of the principle of rule of
law upon which directly the whole Constitution is dependent.

Rule of law in modern Sense

Today the dicey theory of Rule of law cannot be accepted in total. The modern concept of rule of law is very wide
and therefore set up an example for the government to achieve and this concept was developed by the International
Commission of Jurists which is also known as Delhi Declaration, 1959.
According to this, the Rule of the law says that the function of the government in a free society is to exercise and
create a condition in which the dignity and respect of an individual are increased or upheld. It does not only
recognize civil or political rights but the introduction of certain social, political, economic, and educational etc.
which are necessary for the full development of personality.

According to Davis, there are 7 types of Modern law

1. Law and orders.
2. Principle of Natural law.
3. Fixed rules and regulations.
4. Eliminate the idea discretion.
5. Due and fair process of law.
6. Preferences for judges and court of law to executive authority and administrative tribunals.
7. Judicial review of administrative action.
So, in proper manner rule of the law say that it silent on the democratic system, where the political interest is
encouraged and criticism of the government is not only permitted but given positive merit.

How Freedom of Speech and Expression is an integral part of the Rule of law
Rule of law is very founding stone of stage of democratic stands that’s why it is considered as an important and
integral part of Rule of Law. To ask for the right of others and the way they are expressed can be either by speaking,
writing, drawing, etc. and above all rule of law does not go with arbitrariness which can be established by fiving
freedom and one of such freedoms is freedom of Speech and expression.
Now, let’s understand about Freedom of Speech and expression is one of the important fundamental rights given
under the Constitution for every individual to enjoy it fully. Freedom of speech and expression should be used in a
very delicate manner because while expressing the idea, thought it should not defame or hurt the sentiments of any
individual or religion view and without the fear of getting punished for any offensive act. As per UDHR (Universal
Declaration of Human Resources) every individual has the right to freedom of expression and opinion. The right
involves the right to hold the information without any interference from any media or other sources. Right to
freedom of speech and expression is recognized as an essential human right under Article 19 of the UDHR as well
as in ICCPR (International Covenant on Civil and Political Rights).

Freedom of Speech and Expression in the Indian Constitution

Article 19(1) of the Indian Constitution says the Freedom of Speech and expression means the right to express one’s
ideas by the help of words, gesture, painting, writing etc. or by any other specified mode. It also includes the
publication of articles, books etc. so the freedom of the press is also included under this category.
1. It also helps individuals to be well informed about the current situation of highlights of society or nation.
2. Help the individual to the development of ideas, thoughts, opinions etc. which will help in decision making.
3. Varieties of ideas help in maintaining a balance between stability and social changes.
4. Help in achieving of Self-fulfilment.
In Shivkant Shukla vs. ADM Jabalpur the government of M.P. appealed against the High Court ruling in the
Supreme Court. The problem arises that whether Rule of law aside from Article 21 of the Constitution of India.
There is no rule apart from Article 21 and there can never be separate rule of law.

Conclusion
It was very clear that the idea of the Rule of law was not totally perfect. Rule of law has taken charge of
administrative powers and understated them with their measures and this concept was adopted by various countries
as a watchdog of the constitution. The modern concept given by David was a broad concept as well as possible for
the government to use it in a graceful manner and administrative law main task was to fulfil the gap between power
and liberty. The government under the guideline of Rule of law make to rule or conditions that do not intercept with
any individual dignity.

separation of powers:Position in India, UK andUSA

Introduction
The separation of powers is imitable for the administration of federative and democratic states. Under this rule the
state is divided into three different branches- legislative, executive and judiciary each having different independent
power and responsibility on them so that one branch may not interfere with the working of the others two branches.
Basically, it is the rule which every state government should follow in order to enact, implement the law, apply to
specific case appropriately. If this principle is not followed then there will be more chances of misuse of power and
corruption If this doctrine is followed then there will be less chance of enacting a tyrannical law as they will know
that it will be checked by another branch. It aims at the strict demarcation of power and tries to bring the
exclusiveness in the functioning of each organ.

In India, functions are separated from powers rather than the other way around. The idea of the separation of powers
is not properly followed in India, unlike in the US. The court has the authority to overturn any unlawful legislation
that the legislature passes thanks to a system of checks and balances that has been put in place.
Because it is unworkable, the majority of constitutional systems today do not have a tight division of powers among
the several organs in the traditional sense. Although the theory of separation of powers is not expressly recognised in
the Constitution in its absolute form, the Constitution does provide provisions for a fair division of duties and
authority among the three branches of government.

Background
The term “separation of powers” or “trias–politica “ was initiated by Charles de Montesquieu. For the first time, it
was accepted by Greece and then it was widely used by the Roman Republic as the Constitution of the Roman
Republic. Its root is traceable in Aristotle and Plato when this doctrine became a segment of their marvels. In 16th
and 17th-century British politicians Locke and Justice Bodin, a French philosopher also expressed their opinion
regarding this doctrine. Montesquieu was the first one who articulated this principle scientifically, accurately and
systemically n his book “ Esprit des Lois” (The Spirit Of Laws) which was published in the year 1785.
Montesquieu, a French scientist, originally proposed the doctrine of separation of powers in his book “Espirit des
Louis” published in 1747. (The spirit of the laws). Montesquieu discovered that when power is concentrated in the
hands of a single person or a group of people, a despotic government emerges. To avoid this predicament and to
limit the government’s arbitrary nature, he argued that the three organs of the state, the Executive, Legislative, and
Judiciary, should have a clear distribution of power.
Montesquieu went on to clarify the idea in his own words:
“When the legislative and executive powers are united in the same person, or in the same body or magistrates, there
can be no liberty. Again, there is no liberty if the judicial power is not separated from the legislative and executive
powers. Where it joined with the legislative power, the life and liberty of the subject would be exposed to arbitrary
control, for the Judge would then be the legislator. Where it joined with the executive power, the Judge might
behave with violence and oppression. There would be an end of everything, were the same man or same body,
whether of the nobles or of the people, to exercise those three powers, that of enacting laws, that of executing the
public resolutions, and of trying the causes of individuals.”
Wade and Phillips provide three definitions of the separation of powers:
1. That one branch of government should not carry out the duties of another, such as giving ministers
legislative authority;
2. That one branch of the government should not exert control over or interfere with another branch’s
performance of its duties, such as when the judiciary is separate from the executive branch or when
ministers are not answerable to Parliament;
3. That the same individuals should not serve in more than one of the three branches of government, such as
sitting as Ministers in Parliament.
Three formulations of structural classification of governmental powers are included in the separation of powers
theory:
● A single person should not serve in more than one of the government’s three branches. Ministers, for
instance, should not be allowed to sit in the House of Commons.
● A government organ should not be allowed to meddle with another government organ.
● The functions of one organ of government should not be performed by another.

Meaning
The definition of separation of power is given by different authors. But in general, the meaning of separation of
power can be categorized into three features:
● A person forming a part of one organ should not form part of another organ.
● One organ should not interfere with the functioning of the other organs.
● One organ should not exercise the function belonging to another organ.
The separation of power is based on the concept of triaspolitica. This principle visualizes a tripartite system where
the powers are delegated and distributed among three organs outlining their jurisdiction each.
To know more about the separation of powers and its relevance in brief, please refer to the video below:

Three-tier machinery of state government

It is impossible for any of the organs to perform all the functions systematically and appropriately. So for the proper
functioning of the powers, the powers are distributed among the legislature, executive and judiciary. Now let’s go
into the further details of the functioning of each organ.

Legislative
The main function of the legislature is to enact a law. Enacting a law expresses the will of the State and it also acts
as the wain to the autonomy of the State. It is the basis for the functioning of executive and judiciary. It is spotted as
the first place among the three organs because until and unless the law is framed the functioning of implementing
and applying the law can be exercised. The judiciary act as the advisory body which means that it can give the
suggestions to the legislature about the framing of new laws and amendment of certain legislation but cannot
function it.
Executive
It is the organs which are responsible for implementing, carrying out or enforcing the will of the state as explicit by
the constituent assembly and the legislature. The executive is the administrative head of the government. It is called
as the mainspring of the government because if the executive crack-up, the government exhaust as it gets
imbalanced. In the limited sense, executive includes head of the minister, advisors, departmental head and his
ministers.

Judiciary
It refers to those public officers whose responsibility is to apply the law framed by the legislature to individual cases
by taking into consideration the principle of natural justice, fairness.

Significance
As it is a very well known fact that whenever a large power is given in the hand of any administering authority there
are higher chances of maladministration, corruption and misuse of power. This doctrine helps prevent the abuse of
power. This doctrine protects the individual from the arbitrary rule. The government is the violator and also protects
individual liberty.
Summarily, the importance can be encapsulated in the following points:
● Ending the autocracy, it protects the liberty of the individual.
● It not only safeguards the liberty of the individual but also maintains the efficiency of the administration.
● Focus on the requirement of independence of the judiciary
● Prevent the legislature from enacting an arbitrary rule.

Constitutional status of separation of power in India

Going through the provisions of Constitution of India one may be ready to say that it has been accepted in India.
Under the Indian Constitution:
Legislature Parliament ( Lok Sabha and Rajya Sabha)
State legislative bodies

Executive At the central level- President

At the state level- Governor

Judiciary Supreme Court, High Court and all other subordinate courts
The Parliament is competent enough to make any law subject to the conditions of Constitution and there are no
restrictions on its law-making powers. The president power and functions are given in the Constitution itself (Article
62 to Article 72). The judiciary is self –dependent in its field and there is no obstruction with its judicial functions
either by Legislature or the Executive. The High Court under Article 226 and Article 227 and Supreme Court under
Article 32 and Article 136 of Constitution are given the power of judicial review and any law passed by the
legislature can be declared void by the judiciary if it is inconsistent with Fundamental Rights (Article 13). By going
through such provisions many jurists are of opinion that doctrine of separation of powers is accepted in India.
Before looking into the case laws, let us understand what the meaning of the doctrine of separation of power is in a
strict and broad sense.
The doctrine of separation of power in a rigid sense means that when there is a proper distinction between three
organs and their functions and also there should be a system of check and balance.
The doctrine of separation of power in a broad sense means that when there is no proper distinction between three
organs and their functions.
In the case of I.C Golakhnath vs State of Punjab, the Constitution brings in actuality the distinct constitutional
entities i.e namely, the Union territories, Union and State. It also has three major instruments namely, judiciary,
executive and legislature. It demarcates their jurisdiction minutely and expects them to exercise their function
without interfering with others functions. They should function within their scope.
If we go through the constitutional provision, we can find that the doctrine of separation of power has not been
accepted in a rigid sense in India. There is personnel overlapping along with the functional overlapping. The
Supreme Court can declare any law framed by the legislature and executive void if they violate the provisions of the
Constitution.
Executive also has an impact on the functioning of the judiciary as they appoint the judges and Chief justice. The list
is so exhaustive.
In the case of Indira Gandhi vs Raj Narain, the court held that In our Constitution the doctrine of separation of
power has been accepted in a broader sense. Just like in American and Australia Constitution where a rigid sense of
separation of power applies is not applicable in India.
Justice Chandrachud also expressed his views by stating:
“The political purpose of the doctrine of separation of power is not widely recognized. No provision can be properly
implemented without a check and balance system. This is the principle of restraining which has in its precept, innate
in the prudence of self- preservation that discretion is better than its valor.”
In Ram Jawaya vs The State of Punjab, Justice Mukherjee observed:
“In India, this doctrine has been not be accepted in its rigid sense but the functions of all three organs have been
differentiated and it can be said that our constitution has not been a deliberate assumption that functions of one
organ belong to the another. It can be said through this that this practice is accepted in India but not in a strict sense.
There is no provision in Constitution which talks about the separation of powers except Article 50 which talks about
the separation of the executive from the judiciary but this doctrine is in practice in India. All three organs interfere
with each other functions whenever necessary.”
Although, there is an explicit provision in Constitution just like American Constitution that executive power is
vested in President under Article 53(1) and in Governor under Article 154(1) but there is no provision which talks
about the vesting of legislative and judiciary power in any organ. We can conclude that there is no rigid separation
of power.
At the first instance, it appears that our Constitution is based on this doctrine itself as the judiciary is self-sufficient
and there is no interference either by executive or legislature. Court also prohibits the administration of judiciary is
not to be discussed in the parliament. Power of judicial review and to declare any law as void is given to the
Supreme Court. The judges of Supreme Court is appointed by President in consultation. Chief Minister and judges
of the supreme court. The Supreme court make the rules and regulations for the effective conduct of business.
However, Article 50 of the Constitution of India talks about the separation of the executive from the judiciary as
being a Directive Principle of State Policy it is not enforceable. Certain privileges, power, immunities are given to
the Member of Parliament under Article 105. This provision makes the legislature independent. The executive
power is conferred on President and Governor they are being exempted from civil and criminal liabilities.
But, if we read carefully it is clear that doctrine is not accepted in a rigid sense. The executive is a portion of the
legislature and the executive is accountable for its conduct to the legislature and also its derive its authority from the
legislature. Since India has a parliamentary form of government should a mutual connection and coordination
between the legislature and executive. As executive power is vested in the president but in actuality, the real head is
Prime Minister of India along with Council of Minister and president is only a nominal head. Article 74(1) talks that
executive head has to conduct in conformity with the aid and advice of Cabinet.
Ordinarily, all the legislative power is vested in the legislature but in certain circumstances, the president may be
empowered to exercise the legislative power. For example, the president can issue ordinance under Article 123 when
the parliament is not in session, making the rules when there is an emergency. Sometimes the president may also
exercise judiciary power. When a president is being impeached, both houses take active participation and finalize
the charges.
Judiciary also performs the administrative actions while formulating the regulations and giving guidance for the
subordinate court as well as perform legislative powers by framing the rules regulating their own procedure
So it is presumed from the provisions of the constitution that India being a parliamentary form of government does
not follow the absolute separation there is an amalgamation of the powers where the connections between the
different wings are inevitable and it can be drawn from the constitution itself. Every organ performs all types of
functions in one or other form subject to the check and balance by other organs. All three organs are interdependent
because India has a Parliamentary democracy. This does not mean that it is not accepted in India it has been
accepted up to a certain extent.
But when it is expressly provided that one organ shall not perform functions of the other, then it is prohibited. In the
Delhi laws case, it was stated that the legislature should exercise all the powers of legislation only in extraordinary
circumstances like when parliament is not in session or emergency. We can say that the legislature is created by the
Constitution to enact the laws.
In India, there is no separation of power but there is a separation of powers. Hence, in India, the people are not stuck
by the principle by its rigidity. For example, the cabinet minister exercises both the executive and administrative
functions. Article 74(1) states that it is mandatory for the executive head to comply with the advice of the cabinet
ministers. In Ram Jawaya vs the State of Punjab, it was held that the executive is a part of the legislature and is
accountable.
If we talk about the amending power of the Parliament under Article 368, it has been subject to the concept of the
basic structure held in case of Kesavananda Bharati vs State of Kerala.
In this case, it was held that the Parliament couldn’t amend the provision in such a way that violated the basic
structure.
And if it is made in violation of basic structure then such amendment will be declared as unconstitutional null and
void.
Going through this case law regarding the Supreme court judgment it can be observed that the basic structure cannot
be amended and strict applicability of doctrine can be seen.
Although strict separation of power is not followed in India like the American Constitution, the system of check and
balance is followed. However, no organs are to take over the essential functions of other organs which is the part of
the basic structure, not even by amending and if it is amended, such amendment will be declared as unconstitutional.

Impact of the doctrine of separation of powers on democracy

The doctrine of separation of powers seeks to protect the centralization of power in one hand; as history has
repeatedly demonstrated, centralisation of power in one or a few hands can lead to disastrous outcomes. The
application of this principle makes the government liable, accountable, and answerable to its citizens for its actions,
thereby aiding in the promotion and protection of human rights. This eliminates one of the most serious weaknesses
of other forms of administration, such as monarchy or dictatorship, in which the king is not accountable to his
people. When applied, the principle creates a balance of powers inside the government, in which each of the
government’s bodies’ functions are kept in check by the others while remaining independent of one another. This
assures that the laws are just, fair, and adhere to the natural justice ideal. Furthermore, because it is independent of
the other departments, the court can administer equitable justice. Democracy is flawed without Separation of Power.

Global perspective
Separation of power has been accepted and adopted across the globe. The United States has one of the most initially
established versions of this doctrine, which finds its origin in its constitution. The theory of separation of powers in
various aspects has been included in certain other constitutions around the world. The Australian Constitution
favours the devolution of legislative functions to the executive rather than judicial institutions. This idea is also
believed to be the foundation of the Sri Lankan Constitution. France is another country where this doctrine has an
effect, and this doctrine flows out of the French constitution. The United Kingdom too has a separation of powers
concept on an informal note. Some of the prominent countries that have adopted this concept are as follows:

United States
The concept of separation of powers is quite specifically stated in the US Constitution. It gives Congress, which
consists of the Senate and the House of Representatives, legislative authority. The President has executive authority,
and the Supreme Court and any further Federal Courts that Congress may establish have judicial authority. The
Constitution specifically outlines the President’s powers, and he is elected in a separate election for a fixed term of
four years. He is tasked by the Constitution with ensuring that the country’s laws are faithfully carried out. The
President has the authority to nominate and dismiss the executive officers known as the Cabinet, who are in charge
of the major state departments. This is done to maintain the separation between the executive and legislative
branches of government. Neither the President nor any of his secretaries may be members of the Congress, and any
member of the Congress may join the government only after resigning from his membership. The President is
normally irremovable from office, but the Senate has the power to remove him through the process of impeachment
if he commits high crimes and misdemeanours such as bribery or treason. The after-effects of the Watergate scandal
of 1972 on the President act as a prominent illustration of this. Once nominated, the Supreme Court’s judges are not
subject to the authority of either Congress or the President. But they too could be impeached and forced out of their
positions.
The Supreme Court’s authority was created in Marbury v. Madison in 1803 when it ruled that the President’s acts
and the Acts of the legislature were both in violation of the Constitution. The Supreme Court also found that any
significant delegation of legislative authority by Congress to executive agencies was in violation of the
Constitution’s tenet of the separation of powers.

United Kingdom
Unlike the United States, the United Kingdom does have a separation of powers concept and it exists in the country
more on an informal note. The United Kingdom benefits more from Black Stone’s “mixed government” with checks
and balances doctrine. The U.K. Constitution does not have separation of powers as an essential or defining
principle. Because there is no formal division of powers in the United Kingdom due to the lack of a written
constitution, any Act of Parliament that grants any power in violation of the concept may be deemed
unconstitutional. The Parliament continues to have undisputed authority, and as a result, the Crown rules through
ministers who are elected by and answerable to the Parliament. The Act of Settlement, 1700, effectively cemented
the judiciary’s independence. The Supreme Court operates with its powers separated from those of Parliament. The
Constitutional Reforms Act of 2005‘s Section 61 outlines the structure for judicial appointments. Commission
responsible for choosing judges for the Supreme Court and the court of appeals. Thus, the Constitutional Reforms
Act of 2005 has generally ensured the independence of the court.
The three branches continue to significantly overlap and are not properly divided. Administrative tribunals rather
than regular courts handle many issues that emerge during the course of government. However, by preserving key
components of “fair judicial procedure“, the impartiality of the tribunals is kept intact. Senior justices have
frequently stated that a division of powers is the foundation of the British Constitution. It cannot be emphasised
enough how deeply rooted in the separation of powers the British Constitution is while being mostly unwritten.
Parliament makes the laws, and the judiciary interprets them.

Australia
The separation of powers in Australia is achieved by the partition of the Australian organs of government into the
legislative, executive, and judicial branches. According to this theory, laws are created by the legislative,
implemented by the executive branch, and then interpreted by the court. The word and its use in Australia are a
result of the Australian Constitution’s language and structure, which draws its inspiration from democratic ideas
ingrained in the Westminster system, the idea of a ‘responsible government’, and the American interpretation of the
separation of powers.
The Australian political system does not always exhibit a strong separation of powers, however, as a result of the
Westminster system’s norms. The executive is required to be chosen from the legislative and must uphold its trust,
resulting in a fusion between the two.
The Parliament, the executive government, and the judiciary are the respective headings of the first three chapters of
the Australian Constitution. Parliaments serve as the legislative branch of government. Ministers and the
departments and agencies they oversee make up the executive branch. Judges and courts make up the judicial branch
of government. Each of these chapters starts with a section that vests the applicable power of the Commonwealth to
the proper people or organisations. On the other hand, responsible governance, in which the legislative and the
administration are essentially one, is a feature of the Constitution. However, there is a lot of overlap in terms of both
individuals and activities because the ministry (executive) is chosen from and answerable to the parliament
(legislature). The distinction between the judiciary’s divisions is clearer.

Canada
According to the Constitution Act of 1867, there shall be a legislative branch, an executive branch, and a judicial
branch. The monarch of Canada, working through their representative, the Governor General of Canada, is granted
executive authority at the federal level. The Canadian Parliament, which consists of the monarch, the Senate, and the
House of Commons, is given the responsibility of passing laws. Although Parliament approved provisions for the
establishment of federal courts, the judicial authority is generally delegated to the provincial superior courts. The
Federal Court of Appeal, the Federal Court of Canada, and the Supreme Court of Canada are currently considered to
be federal courts.
The Prime Minister and other Cabinet ministers are members of Parliament, and Canada, like other parliamentary
nations utilising the Westminster system, combines the executive and legislative departments. The two branches,
however, play different roles and occasionally even clash with one another. The judicial branch and the elected
legislative and executive branches fall under a considerably stricter definition of the separation of powers.
According to the Supreme Court of Canada, the Constitution of Canada’s core value is judicial independence. When
it comes to carrying out their responsibilities and making decisions, the courts are separate from the elected
branches. Similar institutional features, such as the sharp division between the judicial and elected institutions, also
apply to provincial and territorial governments.

French
Despite the fact that France is credited with creating the theory of separation of powers, its Constitution recognises it
in a flexible way. The legislative branch is defined as distinct from the executive branch in Articles 1 and 2 of the
French constitution. Its dual court system is a crucial element that preserves the separation of powers.
In France, there are two different types of courts: one handles all civil cases, while the other handles administrative
ones. The legislative, the executive branch, and the judiciary are the other three separate branches that make up the
French government. The laws are made by the legislature. These laws are carried out by the executive branch. The
executive branch can, however, use its veto power to block the passage of a particular statute. This is a method of
controlling the legislature. Additionally, the judiciary has the authority to judge whether a law approved by the
legislature is constitutional. If a president or judge isn’t carrying out their responsibilities properly, the legislative
branch has the authority to have them removed. The legislative branch gives its approval to the judges chosen by the
executive branch.

Norway
The Montesquieu principle was included in the original Constitution of 1814, and the people of the time shared the
same distrust of political parties that the American founding fathers and the French revolutionaries did. Additionally,
no one actually desired the overthrow of the king and the Council of State. The idea of a king and council was well-
known, something that people had experienced for a while and, for the most part, were at ease with. The Treaty of
Kiel, in particular, and other outside factors led to the creation of the constitution in 1814. As in the United States
and France, there was no revolt against the ruling elite.
No organised political parties emerged until the 1880s since there was no election for the administration and the
king exercised absolute independence in choosing the members of the Council of State. The assembly’s
impeachment of the whole Council of State in 1884 marked the culmination of a struggle between the executive and
legislative that had begun to emerge in the 1870s and so the government changed to a parliamentary one. Even
though the system of parliamentary sovereignty where the Montesquieu principle of separation of powers is no
longer in effect in Norway, the three branches are still significant institutions.
This does not imply that there are no safeguards in place. Political parties began to emerge shortly after the
parliamentary system was established, which prompted calls for electoral reform due to the peculiarity of the
Norwegian electoral system, it is quite challenging for one party to win an absolute majority. A popular uproar about
having few enough parties and a general sense of lack of representation led to the creation of the multiparty system,
which in turn, still serves as a perfectly adequate system of checks and balances. Hence, there isn’t a lot written on
checks and balances or the separation of powers in contemporary Norwegian political science publications.

Sri Lanka
Since becoming independent in 1972, Ceylon and subsequent Sri Lanka have allegedly been operating according to
the trias politica (three organs of the government) paradigm. However, many would contest the level of
independence that each branch of the government has enjoyed since 1972. The effectiveness of the checks and
balances in place to preserve this independence and the separation of powers is likewise a topic of contention.
Both the legislature’s independence and its commitment to the Lincolnian ideal of “government by the people, for
the people”, are under doubt. Indeed, the rigid workings of the legislature and the party structures and constitutions
are signs of parliamentary autocracy. The executive and the judiciary are similarly facing threats to their
independent functioning in contemporary times.

Merits of separation of power

The theory of separation of powers in its strictest form is considered undesirable and unworkable. As a result, it is
not entirely acknowledged in any nation on earth. However, its importance resides in emphasising the checks and
balances that are required to avoid abuse of the vast executive powers.

Creating a system of checks and balances

One aspect of the theory of separation of powers is checks and balances. According to this characteristic, each organ
has certain checking abilities over the other two organs in addition to its own power. The inter-organ relationships
are governed by a system of checks and balances during the process.
The separation of powers thesis was good in principle. When it was attempted to be utilised in actual life
circumstances, however, various flaws became apparent in practice.

Protection of liberty and rights

According to the doctrine of the separation of powers, an individual’s freedoms and rights are protected, and they
are shielded from various types of dictatorship and oppression.

Improvement in government efficiency

As authority is divided across government agencies, these agencies learn in-depth information about the issues they
are responsible for and improve their effectiveness. The tasks required in governance are sometimes too many for
one branch of the government to handle. Therefore, the division of powers aids in lightening the strain on each
individual branch of government.

Encourages order in governance

Each of the three branches of the government is given a certain set of responsibilities. Each person would have to do
their part solely if the concept were to be strictly followed. This guarantees that the state is run in an orderly manner.

Prevents abuse of authority

The separation of powers is an excellent safeguard against the abuse and haughtiness of power. Because various
departments are given varying degrees of authority, the emergence of a dictatorship is prevented. The idea is sound
in that it can restrain tyranny on the part of those in authority. The idea makes sure that too much authority is not
centralised in one branch of the government. By doing this, the desire to misuse authority is avoided.

Achieves judicial independence

The idea of judicial independence holds that the judiciary ought to be separate from the other arms of the
government. In practically every constitution, the judiciary is granted the authority to decide all constitutional
problems and the authority to deem the actions of the other branches of government null and invalid. The idea of the
separation of powers contributes to bolstering the judiciary’s independence in carrying out its duties.

Demerits of separation of power

Although most nations have adopted this approach, it has not been without criticism. It has been decried as
undesirable in addition to being impossible. “Montes was guilty of oversimplification. He united his theory to a
hasty and superficial analysis of the constitutional principles of liberty.” Sabine said. According to Finer, it is
useless to rigorously apply the doctrine of the division of powers to contemporary circumstances. The following
arguments have been used to refute the separation of powers doctrine.
Misreading of the British system
The Cabinet system of government existed at the time Montesquieu formed his thesis on the division of powers. At
the time, Britain lacked a clear division of authorities. Instead, there was a focus on who was responsible for what.
Montesquieu incorrectly assumed that there was a division of powers in Britain after seeing the British people enjoy
their freedom. He had the politics of Britain wrong.

Unhistorical
The British Constitution during the first half of the eighteenth century, as he understood it, served as inspiration for
Montesquieu. In actuality, the English Constitution did not have a division of powers. This theory was never
included in the British Constitution.
The idea is predicated on the false premise that the three branches of government—legislative, judicial, and
executive—are distinct from one another. In the current welfare state model, these three roles overlap. The
government could become more effective as a result of this division.

Not in favour of the welfare state idea

The welfare state of today must address several intricate sociopolitical economic issues facing a nation. It is
impossible to follow this concept in the current situation.

Unrealistic in and of itself

It hasn’t been discovered that concentrating one sort of power in one organ alone is conceivable in practice. In
addition to being a body that makes laws, the legislature also has oversight responsibilities for the executive, which
is an administrative entity. The judiciary has some rule-making authority in addition to performing judicial duties.
Deadlocks and inefficiencies can result from the separation of powers:
The division of powers might result in impasses and ineffective government operations. It could lead to
circumstances where each organ engages in combat and becomes stuck with the other two organs.

Not completely achievable

This notion is not entirely achievable. The legislature also has some judicial duties, while the executive plays a little
part in rulemaking. The legislature, for instance, carries out judicial actions like impeachment.
Separation of powers causes administrative challenges, which is number three. Making the government’s organs
cooperate, coordinate, and live in harmony becomes challenging. Modern governments must “coordinate” their
powers rather than strictly separate them in order to function effectively.

Could cause confusion and deadlock

The division of powers can occasionally cause rivalry, mistrust, and conflict amongst the several branches of
government. It might cripple the government while causing discord and uncertainty. As a result, even in times of
emergency, the government frequently makes poor judgments. The principle of the separation of powers, in Finer’s
words, “throws governments into alternate phases of coma and convulsion.” According to a different academic,
“division of powers equals confusion of powers.”

Power inequality
Although this theory is founded on the equality of powers assumption, this premise has flaws. While the
administration is most powerful under a presidential system, the legislature, which represents the people, is most
powerful in a parliamentary one.
Separation of powers is one of the factors that contribute to liberty, but it is not the only one. Liberty also heavily
depends on people’s minds, perspectives, political awareness, customs and traditions, basic rights, the rule of law,
the independence of the judiciary, economic equality, and other factors.
Could upset the balance of power
As it carries out several crucial tasks, the government has become stronger. It is necessary to offer welfare to the
people in addition to solving problems and managing crises. All of this has increased the executive’s authority and
thrown off the balance between the three branches of government. Not so much the “division” of authorities as their
“fusion” is necessary for planning, security, and welfare.
As a result, the theory of separation of powers in its strictest definition is seen undesirable and unworkable. As a
result, it is not entirely acknowledged in any nation on earth. However, its importance resides in emphasising the
checks and balances that are required to avoid abuse of the vast executive powers.

Functional overlap among organs of the government

Overlapping powers of Legislature

With the Judiciary

1. Impeachment and dismissal of judges
2. Authority to revalidate legislation that the Court had deemed ultra vires and amend them.
3. If its privilege is violated, it has the authority to penalise the offending party.

With the Executive

1. Members of the legislature serve as the leaders of each governmental ministry.
2. It can dissolve the government with a vote of no confidence.
3. The ability to evaluate the executive’s job.
4. President’s impeachment.
5. Members of the legislature are chosen to the council of ministers, on whose advice the President and
Governor act.

Overlapping powers of Executive

With the Judiciary

1. Selecting candidates for the Chief Justice and other judicial positions.
2. The authority to commute sentences, reprieves, respites, or pardons for those found guilty of crimes.
3. The tribunals and other quasi-judicial organisations of the executive carry out judicial duties as well.

With the Legislative

1. The authority to enact an ordinance that carries the same weight as a law passed by the state legislature or
the parliament.
2. Subject to the limitations of this Constitution, they have the power to enact rules governing their particular
process and conduct of business.
3. Powers are granted by a delegated law.

Overlapping powers of Judiciary

With the Legislative

1. The Supreme Court serves as an Executive under Article 142 in order to ensure full justice.

With the Executive

1. Legal review, or the authority to examine executive action to see if the Constitution is being violated.
2. The basic structure of the Constitution cannot be changed.
Conclusion
“Power corrupts and absolute power tends to corrupt absolutely” – Lord Action.
Exercising the doctrine of separation power cannot be applied in the strict sense in any contemporary countries like
The United States, Nepal, France etc. But still, this doctrine has relevancy nowadays. Our government is an
organized system and it is very difficult to divide into watertight compartments.
For the smooth functioning of any government, cooperation and coordination among all three wings of the
government are necessary. Professor Garner said that “this doctrine is impracticable as working principle of
Government. It is difficult to divide the functions of each organ on an accurate basis”.
Although liberty heavily depends on the balance between the three branches of government, increased concern for
welfare and security has resulted in the transfer of greater authority to the executive. The liberty of the individual, as
well as that person’s wellbeing and the security of the state, should all be equally important in a perfect society.
Without a question, this would necessitate a strong government, but it would also necessitate a system of checks and
balances and the division of powers.
In my opinion, this doctrine has a great significance as it protects the liberty of the individual from the arbitrary rule
and prevents the organs from usurping the essential functions of other organs.
It is applicable in almost all countries up to a certain extent.

UNIT:3

Classification of Administrative functions

CONCEPT AND CLASSIFICATION OF ADMINISTRATIVE FUNCTIONS

INTRODUCTION:
There are three organs of the government and they are legislature, executive and judiciary. These organs perform
various functions separately and they are legislative, executive or administrative and judicial respectively. The main
function of the legislature is to make or enact the laws; the function of the executive is to administer the law and
lastly, the function of the judiciary is to pass judgements in courts and interpret the law.
US Constitution (Intro)

Currently, the executive performs various functions such as to investigate, to adopt schemes, to issue licenses, etc
which are administrative in nature. They perform functions which are legislative in nature such as making laws, bye-
laws, to fix prices, to make regulations, etc. and also to impose fine and penalty which can be considered as judicial
functions. Therefore, the power and scope of the executive has certainly increased as they perform all kinds of
functions.

NEED FOR CLASSIFICATION:

The question as to whether the functions performed by the executive authorities are purely administrative, quasi-
judicial or quasi-legislative in character are really difficult for us to analyse. There is no proper test to distinguish
these functions from one another and even the court is not able to bring out a test to differentiate them. Yet, such
classification is essential and inevitable as there are many consequences that come from it. For example if the
executive exercises a judicial or quasi judicial function, it must follow the principles of natural justice, but if it is a
legislative or quasi legislative function, natural justice has no application. If the function is administrative,
delegation will be permissible, but if it is judicial in nature then it cannot be delegated. Therefore, it is necessary to
determine the kind of function that is performed by the administrative authority.
LEGISLATIVE, EXECUTIVE AND JUDICIAL FUNCTIONS:

1. LEGISLATIVE FUNCTIONS:
The legislative functions of the administrative authority are generally to make laws, rules, regulations, bye-laws, etc.
We know that it is difficult to differentiate between legislative and administrative functions but it necessary to draw
the line between them as different legal rights.

DIFFERENCE BETWEEN LEGISLATIVE AND JUDICIAL FUNCTIONS:

There is no clear difference between a legislative function and a judicial function.
In the case of Prentis v. Atlantic Coast Line Co, Justice Holmes J points out the distinction between legislative and
judicial functions. He stated that a judiciary investigates, declares and enforces liabilities on present or past facts
under laws that already exist. Whereas, legislation takes care of the future and changes the existing conditions by
making new rules that has to be applied thereafter.

DIFFERENCE BETWEEN LEGISLATIVE AND ADMINISTRATIVE FUNCTIONS:

It has certainly been very difficult to draw the line between legislative and administrative functions. Many jurists,
professionals and scholars have tried to find a test to differentiate them.
In the case of Baldev Singh v. State of H.P, an action of inclusion of certain areas within the municipal corporation
was held to be administrative in nature whereas in Sunder Kanyalal Bhatija v. Collector, such an action was held to
be legislative in nature.
2. JUDICIAL FUNCTIONS:
A Pure judicial function presupposes an existing dispute between two or more parties according to the Committee on
Ministers’ Powers.

QUASI-JUDICIAL FUNCTIONS:
An authority is generally described as quasi-judicial when it has some of the characteristics of judicial functions, but
it is not the case every time. Scholars have stated that quasi judicial function stands between judicial function and
administrative function.

DIFFERENCE BETWEEN JUDICIAL AND QUASI-JUDICIAL FUNCTIONS:

A quasi judicial function differs from a judicial function in the following ways:
● A quasi-judicial authority has characteristics similar to that of a court, but not all of them. There is a duty to
act judicially.
● A lis inter partes ( a legal suit between the parties) is an essential element of a judicial function, but this
may not be true of a quasi-judicial function.
● A court is bound by rules and regulations of evidence and procedure which is not present in the case of a
quasi-judicial authority.
● A court is bound by precedents set by the superior courts whereas a quasi-judicial authority is not.
● A court cannot be a judge in its own cause, whereas an administrative authority can be a party to the case
and also decide the case.

3. ADMINISTRATIVE FUNCTIONS:
There are certain characteristics that are present in administrative functions. They are:
● An administrative order is mostly based on government policies and regulations.
● In administrative decisions, there is no strict rule to adopt a judicial approach and the decisions depend on
each case.
● An administrative authority is not bound by legal evidence as in the case of a judicial authority.
● An administrative order will be considered as invalid if it is unreasonable.
● An administrative authority may use its discretion while taking a decision.
DIFFERENCE BETWEEN ADMINISTRATIVE AND QUASI- JUDICIAL FUNCTIONS:
The acts of an administrative authority may be purely administrative or it can be legislative or judicial in nature. It is
a difficult task to differentiate them. The courts have tried their best to draw a line between administrative and quasi-
judicial functions. In the case of Automotive Tyre Manufacturers vs. Designated authority, the court observed that
for determining whether a power is an administrative or
quasi-judicial power, the following must be considered:

● The nature of power conferred

● The manner in which the power is expected to be exercised
● The statute conferring such a power
● The individual on whom the power is conferred
● The consequences that arise from exercising such power

CONCLUSION:
Administrative law generally deals with the powers of the administrative authorities and the manner in which the
powers are exercised by them. It will also include the remedies that are available against unlawful administrative
actions. The primary function of administrative law is to protect the rights of the people by keeping a check on the
powers of the government.
Although there is a general consensus among the lawyers, jurists and scholars that it is a tedious task to differentiate
the various administrative functions such as legislative, administrative, judicial and quasi-judicial, it is necessary to
classify them especially between purely administrative and quasi-judicial.

Legislative, Quasi-judicial, Administrative and Ministerial functions

It has already been emphasized in the previous pages that with the abandonment of laissez faire and advent of the
modern philosophy of a “welfare” and “social service” state, the administrative organ in practically every
democratic country is performing more and more functions, and is thus increasingly impinging on the citizen. The
main tasks of the administrative organ are no longer merely police or political; it performs vast regulatory and
managerial functions. Formerly the various powers of the administration were broadly classified as legislative,
“quasi- judicial” and administrative. No scheme of classification of powers is really satisfactory.

1. Administrative Powers:
Under the legislative power, the administration seeks to lay down a general rule of conduct or policy to be followed
in the generality of cases. Powers of a legislative nature have already been studied earlier under the heading of
“delegated legislation”. For example, many statutes enable the government to grant exemption from the operation of
the concerned statute. If exemption is granted to a specified individual, the order may be regarded as administrative,
but if exemption is granted to a class, then the order may, be regarded as legislative in nature. Before RIDGE VS
BALDWIN, 1964 AC 40, the judicial approach was first to characterize a function as quasi-judicial or
administrative, and then to apply rules of natural justice to the former. Since ridge, as seen in a previous chapter, this
judicial approach has undergone a sea-change. Now it is not necessary to call a function as quasi-judicial first and
apply natural justice then. The term quasi-judicial is falling in disuse. The first aspect which needs to be emphasized
is that the term “administrative” is being used here to denote those functions of the administration where fairness or
natural justice is not applicable. Such a function is discharged by the administration without giving an opportunity to
the concerned party to have his say against a proposed action. For example, an administrative order cannot be
invalidated on the ground of absence of reasons. Thus, a government order referring a Labour dispute for
adjudication to a labour court need not be a speaking order. Western India watch co. vs Its workers, the state
government first refused, but after sometime agreed, to refer an industrial dispute to a labour tribunal. The Supreme
Court ruled that the relevant statutory provision, viz., sec. 10(1) of the Industrial Disputes Act, 1947 confers only an
administrative function on the government, presumably, because the government does not go into the merits of the
dispute but only refers it for adjudication. Therefore, it could not be held that once the government refuses to refer a
dispute it cannot reconsider the matter and change its mind. For determining whether a power is an administrative
power or a quasi-judicial power, regard must be had to:
(1) the nature of the power conferred;
(2) the person or persons on whom it is conferred;
(3) the framework of the law conferring that power;
(4) the consequences ensuing from the exercise of that power;
(5) the manner in which that power is expected to be exercised.
Broadly speaking, administrative powers of the administration are: evolving and implementing policies; execution
of laws; applying vague standards lay down in statutes or delegated legislation from case to case.

2. Formulation And Execution of Policy:

Formulation of policy and its implementation is an important function of the executive in India, and this task of the
executive is facilitated by the parliamentary system of government which operates both at the centre and the states.
An essential characteristic of such a system is the close collaboration between the executive and the legislative
organs because the executive depends for its existence on the majority support in the legislature. The principle has
been enshrined in the constitution of India in the proposition that the council of ministers shall be collectively
responsible to the lower house of the legislature. The executive organ can, therefore, count on the automatic support
of the legislature in its policy making and administrative efforts. An important point to note with respect to the
functioning of the administrative organ in India is that it does not always need a statutory power to act and execute a
policy.

Naraindas vs State of Madhya Pradesh AIR 1974 SC 1232. The court establishes the proposition that the
executive can take administrative action without a specific statutory sanction over the entire area filling within
legislative competence of the concerned legislature, if it does not infringe a legal right of any person. A government
can, thus, engage in a trading activity, enter into a treaty with foreign countries, make appointments, make
promotions to higher administrative posts, fix seniority, establish fair price shops, without there being specific
legislation for the purpose. An executive action which, however, operates to prejudicially affect the legal rights of
any person.

3. Conferment of Administrative Powers By Law:

A few sample provisions conferring powers of an administrative Nature may be noted here for illustrative purposes.
Let us first take a provisions conferring discipline over the government servants. The government has power to
dismiss, remove or reduce in rank a government servant but such a power is exercisable after giving a hearing into
the concerned person. Rule 16(3) of the All India Services (death-cum-retirement) Rules, 1958 empowers the
Central government to compulsorily retire a government servant who has put in certain years of service after giving
him three months’ notice. This provision has been held to confer a very wide discretion on the government to retire
a government servant without giving him a hearing and so it is an administrative power.

The Requisitioning and Acquisition of Immovable Property Act, 1952 authorises the Central government to
requisition private immovable property for “purposes of the union” and this term is not defined in the act and so the
central government has a large discretionary power to requisition private property for any purpose deemed necessary
by it.

Sec. 144, Cr. P.C., provides a Machinery for issue of orders in urgent cases of nuisance or apprehended danger.
Ordinarily an order under the section is not passed ex parte if there is not enough time to serve a notice on the
concerned party. The maximum time limit for such an order is two months. The order may be rescinded at any time.
If a person request for a rescission of the order, he must be heard by the magistrate and reasons are to be recorded by
him for rejecting the application for rescission. An order under the section is open to revision by the high court.

4. Discretionary Powers
Functions dischargeable by the administration may either by ministerial or discretionary. A ministerial function is
one where the law prescribes the duty to be performed by the concerned authority in certain and specific terms
leaving nothing to the discretion or Judgment of the authority. It does not involve investigation into disputed facts or
making of choices. The authority concerned acts in Strict Obedience to the law which imposes on it a simple and
definite duty in respect of which it has no choice. An example of a non-discretionary function is furnished by sec. 35
of the Income Tax Act, 1922. The provision stated that the income tax officer could rectify any mistake apparent
from the record. The Supreme Court ruled in Hirday Narain vs Income tax officer AIR 1971 SC 33 that this
provision did not give any discretion to the I.T.O. to exercise or not to exercise the power to rectify. It was implicit
in the nature of the power that would be exercised by the I.T.O. when a mistake apparent from the record was
brought to the notice by the concerned person. Even if the words used in the statute are prima facie enabling the
courts will be readily infer a duty to exercise power which is invested in aid of enforcement of a right of a citizen. In
Kavita VS State of Maharashtra AIR 1981 SC 1641 , It was held that the task of referring the question of detention
of a person to an advisory board under the CofEPOSA was a mechanical or ministerial act, involving no exercise of
discretion, through the government had the full liberty to revoke the order of detention at the stage. A minor
discretionary element, however, will not make the function non – ministerial.

The need for “discretion” arises because of the necessity to individualize the exercise of power by the administration
has to apply a vague or indefinite statutory provisions from case to case.

There are at least four good reasons for conferring discretion on administrative authorities:
(a) The present day problems which the administration to called upon to deal with are complex and varying nature
and it is difficult to comprehend them all within the scope of general rules.
(b) Most of the problems are new, practically of the first impression. Lack of any previous experience to deal with
them does not warrant the adoption of general rules.
(c) It is not always possible to foresee each and every problem but when a problem arises it must in any case be
solved by the administration in spite of the absence of specific rules applicable to the situation.
(d) Circumstances differ from case to case so that applying one rule mechanically to all cases may itself result in
injustice.

Conclusion:
The judicial control has two Facets . one, to compel the legislature to desist from conferring to broad or uncabined
discretionary powers. In India, the courts have sought to spell out some limits on conferment of broad discretionary
powers by invoking the Fundamental Rights guaranteed by the Constitution. This may involve some substantive and
procedural safeguards in the exercise of powers. The court may imply some substantive limits on the power. They
may imply some procedural safeguards, i.e. an adjudicatory body being required to follow natural justice. In other
cases, the relevant law may lay down some procedural norms. Two, there is need to have some post- decisional
review mechanism to ensure that administrative authorities discharge their functions according to law and within
legal limits express or implied. To some extent, this important role is discharged by courts. The courts control the
exercise of discretion by the administration and for this purpose have evolved several norms.

Delegated Legislation:

Introduction
According to M.P. Jain, “ the term is used in two different senses:
● to exercise the legislative power by subordinate agents, or
● the subsidiary rules themselves which are made by the subordinate authority in pursuance of the powers
conferred on it by the legislature”.
Delegated legislation is generally a type of law made by the executive authority as per the powers conferred to them
by the primary authority in order to execute, implement and administer the requirements of the primary authority. It
can be said that it is the law made by any person or authority under the power of parliament. It is also known as
subordinate legislation in administrative law. It allows the bodies beneath the primary authority or legislature to
make laws according to the requirement. Through an act of Parliament, Parliament has full authority to permit any
person or authority to make legislation. An act of parliament creates a framework of a particular law which tends to
be an outline of the purpose for which it is created. The important object of this is that any legislation by such
delegation should be according to the purposes as laid down in the act.
The main feature is that it allows the state government to amend the laws if there is any need without delaying for
the new act to be passed by the Parliament. If there is any requirement then sanctions can also be altered by the
delegated legislation as the technology changes. It is believed that when such authority is delegated by the
Parliament to any person or authority it enables such person or the authority to provide more detail to the act of the
Parliament.

For example, the local authority has power conferred by the superior one to make or amend laws according to the
requirement of their respective areas. The delegated legislation plays a very important role as the number of them
are more than the acts of the Parliament. It has the same legal standing as the act of Parliament from which it is
created.
There are three forms of delegated legislation i.e., statutory instrument, orders in council and by-laws.

Statutory instruments
They are the one which is formed by the government. For example – a parent act is an act which permits the
parliament for making the law. Orders in the council are generally made by the government when there is a need and
it can affect the public at large as well as an individual.

By-Laws
They are created by the local authority which is approved by the Central Government. There are many reasons for
the delegation of the legislature. The parliament does not have that much time to deliberate and debate about every
topic. Therefore, delegated legislation helps in making laws rapidly than the Parliament and the procedure of the
Parliament is also very slow as the bills for every law needs to pass from every stage. Further, it is also believed that
the Member of Parliament does not possess the technical ability which is required to make law.
For example – making any law regarding taxation requires knowledge as well as experience which can be done by
the person who is professional in that field. In the case of welfare purpose, the local authority can understand the
needs of the people in his area more effectively than others. The democratic bodies have many important powers for
the delegated legislation which can be easily used for updating the legislation according to the requirement which
leads to social welfare.
But there should be control over delegated legislation. Delegated legislation is controlled by the Parliament and the
Judiciary. Parliament has the overall control over the delegated legislation as it takes account with the statutory
committees which make law through bills. The main object of parliamentary control is to look that there is no abuse
or unnecessary use of the powers given to rulemaking authorities.

Cases
In the case of Narendra Kumar v. Union of India, it was held by the Supreme Court that the provision under Section
3(5) of the Essential Commodities Act, 1955, which explains that any rules framed under the Act must be presented
before both the houses of the Parliament. Therefore, clause 4 of Non – Ferrous Control Orders, 1958 has no effect
until it is presented in the Parliament.
There are a number of rules in the area of judicial control over the delegation of legislation which is laid down by
the judiciary.
In Chandra Bhan’s case, it was held that the delegation of legislation must be reasonable and should not suffer from
any unreasonableness.
Delegated legislation should protect the rule of law and there should be no arbitrariness. Rules framed which
violates the Parent Act are illegal. Rules framed which violates any other statute should also be considered as void.
Delegated legislation made with mala fide intention is also considered illegal.
To have a better understanding please go through the attached PowerPoint Presentation. It has a better version of
explanation about the Control Mechanism of Delegated Legislation.

Factors responsible for the rapid growth of Delegated Legislation

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

Advantages of Delegated Legislation

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

Criticism of Delegated Legislation

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

Classification of Delegated Legislation

Power to bring Act into Action As it is already given that in a specified date this Act will come into force prescribed
by Central or State Government by giving a notice in the Official Gazette.
In A.K. Roy vs. Union of India, case Supreme Court held that executive has the power to bring the Act into force
and it should not be excessive in delegated power of legislation. So, here the court rejected the contention that the
power was excessive in nature as per prescribed. It was practically difficult for enforcement. Therefore, power is
given to the executive authority to decide the date of enforcing the act.
Conditional Legislation the rules are framed or designed by the legislature but to implement or enforce it, is done by
the executive organ, so executive has to look that what all conditions need to be fulfilled to bring it in operation. If
all conditions are satisfied then it is well and good otherwise notice will be issued to bring the law into operation and
it is known as Conditional Legislation.

Condition legislation is of following types

● Power to bring the act into action.
 ● Power to extend the time period or life of the act.
● Power to extend the application of the act to any territory and to make restriction or make an alteration in
the act itself.
● Exempt the operation on certain ground or subjects of territories.
Power to fill in the blanks of the format – A rough format is prepared by the legislature and pass on to the executive
to fill up with all the necessary blanks or elements needed by the subordinate legislation.
Power face in removing difficulties – Power to modify the statute maybe given to the government by removal of
difficulties clause.

Control of Delegated Legislation

There are three kinds of Control given under Delegated Legislation:
1. Parliamentary or Legislative Control
2. Judicial Control
3. Executive or Administrative Control

Parliamentary or Legislative Control

Under parliamentary democracy it is a function of the legislature to legislate, and it’s not only the right but the duty
of the legislature to look upon its agent, how they are working.
It is a fact that due to a delegation of power and general standards of control, the judicial control has diminished and
shrunk its area.
In India “Parliamentary control” is an inherent constitutional function because the executive is responsible to the
legislature at two stages of control.
1. Initial stage
2. Direct and Indirect stage
In the Initial stage, it is to decide how much power is required to be delegated for completing the particular task, and
it also observed that delegation of power is valid or not.
Now, the second stage consists of two different parts.
1. Direct control
2. Indirect control

Direct control
Laying is an important and essential aspect under direct control and it is laid down as per the requirement which
means that after making the rule it should be placed before the Parliament. It includes three important part as per the
degree of control needs to be exercised.
1. Simple Laying
2. Negative Laying
3. Affirmative Laying
And “test of Mandatory” & “Test of Directory” are two main test.
Test of Mandatory – Where the laying demand is a condition pattern to guide the rule into impact then in such a case
laying need is mandatory.
Where the provision is mentioned that the rules should be drafted in a particular format then it becomes mandatory
to follow the format.
Test of Directory – Where the laying need is next to enforce the rule into operation then it will be directory in
nature.

Indirect control
This is a control exercised by Parliament and its committees. Another name for such type of committee is
Subordinate legislation. The main work of the committee is to examine
1. Whether rule are according to general object of the act.
2. It bars the jurisdiction of the court in direct or indirect ways.
3. Whether it has retrospective effect or not.
4. Whether it safeguard or destroy the Principle of Natural Justice.
 5. Expenditure involved in it is from Consolidated fund.

Procedural and Executive Control

There is no particular procedure for it until the legislature makes it mandatory for the executive to follow certain
rules or procedure.
To follow a particular format it may take a long time which will definitely defeat the actual objective of the act.
Hence, procedural control means that under Parent act certain guidelines are given which need to be followed while
whether it is mandatory or directory to follow it or not. It includes three components:
1. Pre publication and consultation with an expert authority,
2. Publication of delegated legislation.
3. Laying of rules.
It can be either Mandatory or Directory, to know, certain specified parameters are given:
1. Scheme of the Act.
2. Intention of Legislature.
3. Language used for drafting purpose.
4. Inconvenience caused to the public at large scale.
And these four parameters were given in the case Raza Buland Sugar Co. vs. Rampur Municipal Council.

Judicial Control
Judicial review upgraded the rule of law. The court has to see that the power delegated is within the ambit of the
constitution as prescribed. Judicial review is more effective because court do not recommend but it clearly strikes
down the rule which is ultra vires in nature. As per Section 13(3)(a) “Law” is defined under the Constitution of
India which clearly indicate that State should not make any law which abridge the right given in Part iii of the
Constitution. It is dependent on two basic grounds:
1. It is ultra vires to the Constitution of India, and
2. It is ultra vires to the enabling Act.

Conclusion
If in India, Parliamentary control overlaps the delegated legislation then it is mandatory that the committee of
parliament need to be strong enough and separate laws should be made and passed which give a uniform rule for
laying down and publication purposes. A committee must contain a special body to look on the delegated work
whether it’s going in the right direction and effectively or not. All the three organs should focus on their work and
do not interrupt unnecessarily to prevent chaos in the system.

UNIT-4
Judicial Control of Administrative Action

In all the countries with developed or developing democracy, the main goal is to achieve an efficient and effective
administrative system. In India administrative law was given recognition in the mid-20th century. Administrative
law is neither legislative nor judicial, it is a quasi-judicial and quasi-legislative system that deals with the
relationship between individuals and government.

n simple words, it governs the actions of the administrative authorities and determines the organization, powers, and
duties of such authorities. The administrative law is a species of constitutional law and cannot exercise its powers
over and beyond. However, it becomes necessary for the judiciary to check upon the administrative actions and their
constitutionality as the scope of administrative law is wide in comparison with the other laws.

The main purpose of judicial control is to protect the rights of individuals from the abuse of powers by
administrative authorities by ensuring the legality as well as the constitutionality of the actions undertaken by them.
Scope Of Judicial Control Over Administration
In India, the constitution provides for independent judicial and legislative powers. There is a system of separation of
powers between the legislative, executive, and judiciary. The Indian constitution incorporates many provisions to
ensure that there is an effective and efficient system of separation of powers. For example- the executive appoints
the judges of the apex court but within the limits of guidelines provided thereby.

And after such an appointment, the executive has no control over the discharge of functions by the judiciary.
Similarly. though the judiciary has the power to control administrative actions of the authorities such control cannot
be exercised on their own accord, but can only be exercised when relief is sought. Judicial Intervention or control is
restrictive in nature which narrows down the scope of its application.

Generally, such control is confined to the following cases:

1. Lack of jurisdiction:
When any public official or administrative authority acts over and beyond its jurisdiction, the court has the
power to declare such an act to be ultra vires. For instance- In an organization, a particular authority is
vested with the power to take certain decisions or actions and any authority other than the competent
authority exercises such power of decision making then one can seek court's intervention under the
provision of jurisdictional error.

2. Irrationality:
The general principle is that the powers conferred by administrative authorities are exercised reasonably.
But if an administrative authority gives a decision that overrides the moral standards of the society and is
such that which is absent under law then a such decision can be held to be unreasonable. This can also be
called misfeasance in law.

The concept of irrationality as a ground for judicial control was established through the case law
Associated Provincial Picture House vs. Wednesbury (1947). This case is also known as the Wednesbury
test as the court laid down three tests to determine whether or not a court has the right to intervene on the
basis of irrationality:

1. If the defendant has not taken into consideration any fact which was to be taken into consideration.
2. If the defendant has taken into consideration any fact was which was not to be taken into
consideration.
3. If the decision is such that any reasonable authority would not have taken into consideration of
imposition of such decision after reasonable application of mind.
3. The court also stated that any court could not intervene simply on the ground of disagreement.

4. Procedural Impropriety:
It means the failure of an administrative authority to comply with the laid rules and procedures or the
common law. In the case of procedural impropriety, the judiciary has the power to intervene even if the
principles of natural justice are not denied. Under the case of Council of civil service unions vs. Minister
for the civil service Lord Diplock considered procedural impropriety as one of the heads to determine
whether or not any administrative action is subject to judicial intervention.

5. Proportionality:
It means that whatever action is taken by the administrative authority should be limited to the proportion of
the objective of the decision. Before upholding:

1. Irrationality:
This could also be referred to as "Wednesbury Unreasonableness". It applies to a decision which is
so outrageous in its defiance of logic or of accepted moral standards that no sensible person who
had applied his mind to the question to be decided could have arrived at it. Any action by an
administrative authority it is necessary for the court to consider its advantages as well as
disadvantages.
 Unless, the court is satisfied that the action is necessary in the interest of public at large, it shall
not be upheld. If any such authority takes any action which is for its personal gains and does not
benefit the public interest, the court's intervention can be sought.

Forms Of Judicial Control Over Administration

1. Judicial Review
2. Statutory Appeal
3. Suits Against The Government
4. Criminal And Civil Suits Against Public Officials
5. Extraordinary Remedies

Judicial Review
Judicial review is one of the most significant powers of High courts and the Supreme court. It is basic requirement
of a developing civilization to protect and safeguard the rights of the public by checking upon the administrative
actions and their contitutionality as well as legality.

This doctrine prevails in the countries where the constitution is considered as their supreme law, for eg- USA, India,
Australia etc. The power of courts to conduct judicial review is restricted by constitution. However, the Legislature
cannot exclude judicial review if the administrative action is ultra vires to the constitution or harms public interest.

The doctrine of Judicial review was first established on February 24, 1803 by the U.S Supreme Court in the case of
Marbury vs. Madison when it declared an act of legislative (congress) unconstitutional.

Following Are The Mechanisms Of Judicial Review:

1. Judicial Review Of Legislative Actions.
2. Judicial Review Of Judicial Decision.
3. Judicial Review Of Administrative Action.

In the cases of Keshvananda Bharti, Chandra Kumar vs. UOI judicial review was held to be necessary and was
declared to be an essential and integral part of the Indian Constitution.

In Sri Sankari Prasad Singh Deo vs Union Of India, the first amendment act of 1951 was challenged but the Apex
court rejected the contention by conceding absolute powers to the parliament to amend the constitution.

In the landmark case of Golaknath v. State of Punjab "The supreme court reversed its decision as it observed that
Article 368 does not provide the power to amend the constitution."

Statutory Appeal
The statutes and laws made by the legislature themselves provide for seeking judicial intervention in case of any
grief or harm. The aggrieved party has the right to appeal to a higher administrative tribunal than the original
decision-making tribunal. For instance, any person aggrieved by the decision of a session court can appeal to the
high court for intervention. The apex court or the supreme court is the highest court and hence, no right to appeal
lies against its decisions.
Suits Against The Government
There are certain limitations with regard to constituting suits against the government. The liability of the government
under the contract law is similar to that of the citizens subject to the limitations which can be regulated by the
parliament under the constitution. However, the government is liable for only those acts of their officials for which
they are answerable. The government can be held liable for the actions of its officials in regard to non-sovereign
functions only.

Civil And Criminal Suits Against Public Officials

The laws related to civil and criminal proceedings against public official's acts vary from country to country. In
India, the code of criminal procedure creates the personal liability of public officials for the acts done by them in
such capacity and allows suits to be filed against such acts with two months prior notice. However, certain
authorities except the ministers are immune to such civil suits such as the President and the governor. In Britain, the
monarch and in the USA the president is immune from such legal proceedings.

Extraordinary Remedies
Apart from the abovementioned types of judicial controls, the Indian constitution provides a few additional remedies
by way of the writs under Article 13 and Article 226. The court has discretionary powers to provide these remedies
except the writ of habeas corpus when no other remedy is available.

These writs are issued by the supreme court in order to protect only the fundamental rights of the citizens but the
High court is empowered to issue these writs for the protection of other rights also. The writ of injunction is not
specifically provided under the Indian constitution but yet it is provided as a remedy by the supreme court. The writ
of injunction is of two types- preventive and mandatory. The mandatory writ is somehow similar to the writ of
mandamus and the preventive is similar to that of prohibition. The writ of injunction is issued against executive
authorities.

The Remedies By Way Of Writs Are As Follows:

1. Habeas corpus:
It is derived form a Latin term which means "you may have the body". It is used to secure a person who is
unlawfully or illegally detained. Through this writ the Supreme Court or the High Court can order another
person who has unlawfully detained another person, to present the body of the latter before the court. The
court requires the detaining person to provide valid ground for detention and if he fails to do so then the
person who was detained will be released by the court. This writ can be issued against both public and
private authorities.

Court shall have powers, throughout the territories in relation to which it exercise jurisdiction, to issue to
any person or authority, including in appropriate cases, any Government, within those territories directions,
orders or writs, including writs in the nature of habeas corpus, mandamus, prohibitions, quo warranto and
certiorari, or any of them, for the enforcement of any of the rights conferred by Part III and for any other
purpose.

In the case of Ichhu Devi v. Union of India the Supreme Court held that even an application through
postcard by any pro bono publico will be considered for order to issue writ of habeas corpus.

2. Mandamus:
It is an order by the Supreme Court and High court to lower or subordinate courts, tribunals or public
authorities. This writ can be issued to any government, court, corporation or public authority, if they fail to
do their respective duties. In the case of John Paily & Ors. v. State of Kerala the Supreme Court held that
the court cannot direct any state legislature to establish a tribunal by issuing the writ of mandamus. The
petition cannot be entertained and was dismissed.

3. Quo Warranto:
This writ is issued against a private individual when he assumes office of a public servant on which he has
 no right. The power to issue this writ is discretionary and it's up to the discretion of the court whether to
issue this writ or not. This writ can only be issued when a substantive public office is involved and can't be
issued against private or ministerial offices. In the case of Niranjan Kumar Goenka v. The University of
Bihar, Muzzafarpur the court observed that the writ of quo warranto cannot be issued if the person is not
holding the public office.

4. Certiorari:
It is issued by a superior court to the inferior courts. It is corrective in nature and its work is to correct the
errors. It is issued when there is excess of jurisdiction to the inferior court or the superior court wants to
decide a matter himself in any case.

In the case of A.K. Kraipak v. Union of India the Supreme Court laid down the distinction between quasi-
judicial authorities and administrative authority. The Supreme Court quashed the decision by issuing the
writ of certiorari.

5. Prohibition:
This writ is not issued often and it is an extraordinary remedy which the superior court issues to an inferior
court or tribunal for stopping them to decide a case as they have no jurisdiction. If the court or tribunal does
not have a jurisdiction and still decides the case, the decision will be invalid because for an act to be legal it
must have sanction of law. This writ can only be issued against judicial and quasi-judicial authorities.

In the case of Prudential Capital Markets v. State of A.P. and Others the question that was raised was that
"can the writ of prohibition be issued against district forums/state commissions which had already passed
the judgement regarding consumer cases?" The court held that after the execution of the order, the writ of
prohibition cannot be issued and neither the judgement can be stopped nor prevented.

Limitations Of Judicial Control Over Administration

1. With High volume of cases already piled up in courts, it becomes difficult for the courts to cope up such
burden. The excessive delay in justice discourages justice seekers to approach the court. The old saying
"justice delayed is equal to justice denied" still holds good in such cases.

2. As the courts cannot interfere in the administrative acts in their own accord and can only intervene when
justice is sought, this delays the process of justice. As in most of the cases the judiciary is able to interfere
only when enough damage is already done and in such cases there is no method to undo the harm already
born by the aggrieved.

3. Due to the high costs of the judicial processes most of the time only rich people are able to get relief against
the administrative actions and the poor people are denied justice and become victims of such administrative
actions and justice denial.

4. The courts in India are bound by certain statutory limitation and cannot act against them. Few
administrative actions are out of judicial control and cannot be reviewed.

5. The lack of general awareness also becomes one of the limitation for judicial control. In a country like
India where the illetracy is high, people are also deprived of the general knowledge of remedies provided
by the judiciary in case of grievances. For the courts who can only act when relief is sought, it becomes
difficult in this case to provide justice to the citizens.

Recent Case Laws Related To Judicial Control

1. In the recent case of Azizur Rahaman vs. The state of WB & ors. The Calcutta High Court held that the
judiciary's power of judicial review is to check upon the legality and the constitutionality of the
administrative act and not the wisdom or soundness of such act. The judiciary will only exercise its powers
 if the acts is completely arbitrary or for personal gains or affects the interest of public.

2. The Supreme Court in the case of I.R. Coelho (Dead) By Lrs v. State of Tamil Nadu & Ors., held that laws
that are added to the 9 th schedule of the constitution by way of amendments after April 24, 1973 can be
amended if they are ultra vires of the Constitution.

Conclusion
The main purpose of judicial control is to protect the rights of individuals from the abuse of powers by
administrative authorities by ensuring the legality as well as constitutionality of the actions undertaken by them. The
Indian Constitution provides various methods of judicial control like judicial review, statutory appeal etc., and along
with these various types of judicial controls, the Indian constitution also provides a few additional remedies by way
of writs under Article 13 and Article 226. However, the court has discretionary powers to provide these remedies
except the writ of habeas corpus when no other remedy is available.

These writs are issued by the supreme court in order to protect only the fundamental rights of the citizens but the
High court is empowered to issue these writs for the protection of other rights also. Judicial Intervention or control is
restrictive in nature which narrows down the scope of its application. Although Judicial Control is one of the most
essential parts of the structure of Constitution, it comes with certain limitations as well.

Grounds of Judicial Control

Judicial review occurs when a party seeks review by a court of a decision made by a government decision-maker.
The court will consider whether the decision was made according to law or whether there was an error made by the
decision-maker. The grounds on which judicial review can be sought are listed in the Administrative Decisions
(Judicial Review) Act 1977.

On What Grounds Can A Person Seek Judicial Review?

Under Section 5(1) a person can apply for a review of a decision on the grounds that:
● a breach of natural justice occurred;
● decision-making procedures were not observed;
● the decision-maker did not have the jurisdiction to make the decision;
● the decision was not authorised by the Act;
● the decision was an improper exercise of the Act;
● there was an error of law;
● the decision was induced or affected by fraud;
● there was no evidence to justify the decision;
● the decision was otherwise contrary to law.
Section 5(2) defines an improper exercise of power as:
● taking into account irrelevant considerations;
● disregarding relevant considerations;
● exercising a power for an unauthorised purpose;
● exercising a discretionary power in in bad faith;
● exercising a discretionary power at the direction or on behalf of another person;
● exercising a power by applying a rule or policy without considering the merits of the case;
● exercising a power in a way that is so unreasonable that no reasonable person could have exercised it that
way;
● exercising a power that produces an uncertain result;
● any other exercising of a power that constitutes abuse of the power.

Commonly Challenged Grounds

When examining grounds for judicial review, there are several typical areas where errors are found in decision-
making.
Natural justice
The key components of natural justice are the right to a fair hearing and the rule against bias. The right to a fair
hearing involves a person being given adequate notice of a hearing, a sufficient opportunity to present a case, and
notice of something unknown or not obvious to them. Mason J stated the relevant principles in Kioa v West:
“when an order is to be made which will deprive a person of some right or interest or the legitimate expectation of a
benefit, he is entitled to know the case sought to be made against him and to be given an opportunity of replying to it
… The reference to ‘right or interest’ in this formulation must be understood as relating to personal liberty, status,
preservation of livelihood and reputation, as well as to proprietary rights and interests.”
The rule against bias requires that decisions be made impartially, following the principle that justice must not only
be done but be seen to be done. Actual bias is difficult to prove because it requires showing the decision-maker has
closed their mind. Apparent bias is more commonly alleged and easier to prove because it involves demonstrating
the appearance of bias. The test is whether a “fair-minded and informed observer” would conclude there was a “real
possibility” the decision was biased.
Linked to natural justice is the notice of legitimate expectation, where a party expects a body to act in a certain way,
whether because of express statements in law or because of past conduct.

Relevant and irrelevant considerations

Among the grounds for judicial review, these two are the most commonly challenged. The court can intervene if it
can be shown a decision-maker failed to take into account relevant considerations or took into account irrelevant
considerations. In Minister for Aboriginal Affairs v Peko-Wallsend Ltd, Justice Mason stated the first ground can be
made out only if the decision-maker fails to consider a factor they were bound to consider. He also stated that what
the decision-maker is bound to consider is determined by the Act, and if the factors are not expressly stated, then
they must be determined from the subject matter, scope and purpose of the Act.

Improper purpose
This involves a two-step test: determining the purpose of the power authorised under the Act, and the purpose for
which the power was actually exercised. A challenge on this ground will succeed only if it is proved that the
decision-maker would not have acted as they did but for the improper purpose.

No jurisdiction
This occurs when a body acts beyond its power or authority by making a decision it has no power to make. This also
occurs when a decision-maker allows a decision to be made by someone over whom they have no control, via
improper delegation. This is a narrow ground because government administration requires much decision-making to
be passed to subordinate officers.

Error of law
This occurs when there has been an error in construction or interpretation of the law, such as when decision-maker
applies the wrong criteria. A decision does not involve an error of law unless the decision would have been different
without it.

Inflexible application of policy

This occurs when a decision-maker applies policy or guidelines without regard for the merits of the situation, and so,
fails to exercise discretion.

Principles of Natural Justice

Principle of Natural Justice is derived from the word ‘Jus Natural’ of the Roman law and it is closely related to
Common law and moral principles but is not codified. It is a law of nature which is not derived from any statute or
constitution. The principle of natural justice is adhered to by all the citizens of civilised State with Supreme
importance. In the ancient days of fair practice, at the time when industrial areas ruled with a harsh and rigid law to
hire and fire, the Supreme court gave its command with the passage of duration and establishment of social, justice
and economy statutory protection for the workmen.
Natural justice simply means to make a sensible and reasonable decision making procedure on a particular issue.
Sometimes, it doesn’t matter what is the reasonable decision but in the end, what matters is the procedure and who
all are engaged in taking the reasonable decision. It is not restricted within the concept of ‘fairness’ it has different
colours and shades which vary from the context.
Basically, natural justice consists of 3 rules.

The first one is “Hearing rule” which states that the person or party who is affected by the decision made by the
panel of expert members should be given a fair opportunity to express his point of view to defend himself.
Secondly, “Bias rule” generally expresses that panel of expert should be biased free while taking the decision. The
decision should be given in a free and fair manner which can fulfil the rule of natural justice.
And thirdly, “Reasoned Decision” which states that order, decision or judgement of the court given by the Presiding
authorities with a valid and reasonable ground.

Origin
The principle of natural justice is a very old concept and it originated at an early age. The people of Greek and
roman were also familiar with this concept. In the days of Kautilya, arthashastra and Adam were acknowledged the
concept of natural justice. According to the Bible, in the case of Eve and Adam, when they ate the fruit of
knowledge, they were forbidden by the god. Before giving the sentence, eve was given a fair chance to defend
himself and the same process was followed in the case of Adam too.
Later on, the concept of natural justice was accepted by the English jurist. The word natural justice is derived from
the Roman word ‘jus-naturale’ and ‘lex-naturale’ which planned the principles of natural justice, natural law and
equity.
“Natural justice is a sense of what is wrong and what is right.”
In India, this concept was introduced at an early time. In the case of Mohinder Singh Gill vs. Chief Election
Commissioner, the court held that the concept of fairness should be in every action whether it is judicial, quasi-
judicial, administrative and or quasi-administrative work.

Purpose of the principle

● To provide equal opportunity of being heard.
● Concept of Fairness.
● To fulfil the gaps and loopholes of the law.
● To protect the Fundamental Rights.
● Basic features of the Constitution.
● No miscarriage of Justice.
The principles of natural justice should be free from bias and parties should be given fair opportunity to be heard
and all the reasons and decision taken by the court should be informed by the court to the respective parties.
Supreme court said that arriving at a reasonable and justifiable judgement is the purpose of judicial and
administrative bodies. The main purpose of natural justice is to prevent the act of miscarriage of justice.
A committee i.e. “Ministers Power” gave 3 essentials procedure related to the principles of natural justice.
1. No one should be a judge in his own matter.
2. No one can be condemned unheard.
3. The party is entitled to know each and every reason and the decision taken by the authority.

When it can be claimed?

Natural justice can be claimed when acting judicially or quasi-judicial like panchayat and tribunals etc. as well. It
includes the concept of fairness, basic moral principles and various different kinds of biases and why the natural
justice is required and what all special cases or situation it includes where the principles of natural justice will not be
applicable.
In the case of the Province of Bombay vs. Khushaldas Advani, it was said that natural justice will be applicable on
statutory as it is a basic principle of Natural justice which leads to fairness and justice.
Effect of function
● Administrative action.
● Civil consequences.
● The doctrine of Legitimate exception.
● Fairness in action.
● Disciplinary proceeding.
In the case of Board of high school vs. Ghanshyam, a student was caught while cheating in the examination hall and
he was debarred due to the act. Supreme Court held that student cannot file a Public Interest Litigation against the
examination board.
High water mark case- Eurasian equipment and company limited vs. State of West Bengal: Under this case, all the
executive engineers were blacklisted. Supreme Court held that without giving a valid and reasonable ground you
cannot blacklist anyone and further he should be given a fair opportunity of being heard.

Rules of Natural Justice

● NEMO JUDEX IN CAUSA SUA
● AUDI ALTERAM PARTEM
● REASONED DECISION

Nemo Judex In Causa Sua

“No one should be a judge in his own case” because it leads to rule of biases. Bias means an act which leads to
unfair activity whether in a conscious or unconscious stage in relation to the party or a particular case. Therefore, the
necessity of this rule is to make the judge impartial and given judgement on the basis of evidence recorded as per the
case.

Type of Bias
1. Personal Bias.
2. Pecuniary Bias.
3. Subject matter Bias.
4. Departmental Bias.
5. Policy notion Bias.
6. Bias on the account of obstinacy.

Personal bias
Personal bias arises from a relation between the party and deciding authority. Which lead the deciding authority in a
doubtful situation to make an unfair activity and give judgement in favour of his person. Such equations arise due to
various forms of personal and professional relations.
In order to challenge the administrative action successfully on the ground of personal bias, it is necessary to give a
reasonable reason for bias.
Supreme court held that one of the members of the panel of selection committee his brother was a candidate in the
competition but due to this, the whole procedure of selection cannot be quashed.
Here, to avoid the act of biases at the turn of his brother respective panel member connected with the candidate can
be requested to go out from the panel of the selection committee. So, a fair and reasonable decision can be made.
Ramanand Prasad Singh vs. UOI.

Pecuniary bias
If any of the judicial body has any kind of financial benefit, how so ever small it may be will lead to administrative
authority to biases.
Subject matter bias
When directly or indirectly the deciding authority is involved in the subject matter of a particular case.
Muralidhar vs. Kadam Singh The court refused to quash the decision of Election tribunal on the ground that the
chairman’s wife was a member of Congress party whom the petitioner defeated.

Departmental bias
The problem or issue of departmental bias is very common in every administrative process and it is not checked
effectively and on every small interval period it will lead to negative concept of fairness will get vanished in the
proceeding.

Policy notion bias

Issues arising out of preconceived policy notion is a very dedicated issue. The audience sitting over there does not
expect judges to sit with a blank sheet of paper and give a fair trial and decision over the matter.

Bias on the account of the obstinacy

Supreme court has discovered new criteria of biases through the unreasonable condition. This new category emerged
from a case where a judge of Calcutta High Court upheld his own judgement in appeal. A direct violation of the
rules of bias is done because no judge can sit in appeal against in his own case.

Audi Alteram Partem

It simply includes 3 Latin word which basically means that no person can be condemned or punished by the court
without having a fair opportunity of being heard.
In many jurisdictions, a bulk of cases are left undecided without giving a fair opportunity of being heard.
The literal meaning of this rule is that both parties should be given a fair chance to present themselves with their
relevant points and a fair trial should be conducted.
This is an important rule of natural justice and its pure form is not to penalize anyone without any valid and
reasonable ground. Prior notice should be given to a person so he can prepare to know what all charges are framed
against him. It is also known as a rule of fair hearing. The components of fair hearing are not fixed or rigid in nature.
It varies from case to case and authority to authority.

Components
Issuance of notice– Valid and proper notice should be given to the required parties of the matter to further proceed
with the procedure of fair trial method. Even if the statute does not include the provision of issue of notice then it
will be given prior to making decisions. This was held in the case of Fazalbhai vs. custodian.
In the case of Kanda vs. Government of Malaya, the court held that notice must directly and clearly specify on the
matter of bias, facts and circumstances against which needs to be taken. It’s one of the rights of the individual to
defend himself so he should be familiar with the relevant matter so he may contradict the statement and safeguard
himself.
The notice should be with regard to the charges framed against the accused person and proceeding to be held. He
can only be punished on the charges which are mentioned in the notice, not for any other charges.
Right to present the case and evidence– After receiving the notice he must be given a reasonable time period to
prepare and present his case in a real and effective manner. The refusal should not be done on the unreasonable
ground or due to arbitrary.
Right to Cross Examination– Right of fair hearing includes the right to cross-examination the statement made by the
parties. If tribunals denied the right to cross-examination then it will violate the principles of natural justice. And all
the necessary copies of documents should be given and failure of that will also encroach the principle. The
department should make available officers who are involved in the procedure of investigating and do cross-
examination. Cross-examination is defined under Section 137 of the Indian Evidence Act, 1872 (amended).
In certain exceptional cases, the right to cross-examination can be denied or rejected. Hari Nath Mishra vs. Rajendra
Medical College, under this case a male student was charged off some indecent behaviour towards a female student.
So, here the right to cross-examination was denied for the male student as it will lead to embracement for the female
student and it will not also lead to violation of natural justice.
Sometimes it becomes very necessary to keep the identity confidential as there is a threat of life and property. And
the same situation was faced in the case Gurubachan Singh vs. the State of Bombay.
Let’s take an illustration, In the matter where lawyer and client are involved so, nobody can force a lawyer to reveal
what all information is given by the client to the lawyer in relation to the case.
In the case of Ludhiana food product, the court held that If the party itself refuse to cross-examine the witness then it
will not fall under miscarriage of natural justice.
Right of Legal representative– In the process of enquiry, every party has the right to have a legal representative.
Each party will be presented by the legally trained person and no one can deny (A.K.Roy). Similarly, the department
has the same right to direct its officer even though there are investigating officer in conducting an adjudicating
proceeding (Sanghi textile processor vs. Commissioner).

Exceptions
1. During the Emergency period
2. Public interest
3. Express statutory provision
4. Nature of the case is not of a serious kind
5. If it doesn’t affect the status of the individual

Applicability
1. Natural justice is applicable to some of the following points:-
2. Court- except to ex-parte
3. Tribunals
4. Authority entrusted with discretion but subject to legal limitations

Reasoned Decision
Basically, it has 3 grounds on which it relies:-
1. The aggrieved party has the chance to demonstrate before the appellate and revisional court that what was
the reason which makes the authority to reject it.
2. It is a satisfactory part of the party against whom the decision is made.
3. The responsibility to record reasons works as obstacles against arbitrary action by the judicial power vested
in the executive authority.

Conclusion
The principles of natural justice have been adopted and followed by the judiciary to protect public rights against the
arbitrary decision by the administrative authority. One can easily see that the rule of natural justice include the
concept of fairness: they stay alive and support to safeguard the fair dealing.
So at all the stages of the procedure if any authority is given off the judicial function is not purely accepted but the
main motive of the principal is to prevent the miscarriage of justice. It is supreme to note that any decision or order
which violates the natural justice will be declared as null and void in nature, hence one must carry in mind that the
principles of natural justice are essential for any administrative settlement to be held valid.
The principle of natural justice is not confined to restricted walls the applicability of the principle but depends upon
the characteristics of jurisdiction, grant to the administrative authority and upon the nature of rights affected of the
individual.

Administrative discretion and its control

Administrative discretion is an informal unilateral practice and is therefore unprotected by the protections inherent
in structured procedure. Discretion in simple words means choosing among the different alternatives available
without respect to any predetermined criterion, irrespective of how fanciful that choice may be. The administrative
discretionary issue is complex. Really, the government can not work in any intensive form of government without
the officials exercising some discretion. It is important not only for the individualization of the administrative power
but also because in the dynamic nature of modern state it is humanly impossible to lay down a guideline for every
imaginable eventually. Equally true, however, is that absolute power is a merciless master. It is more destructive of
liberty than any Other technology made by man.
There are three main heads under which the control over administrative discretion exercised.
1. Parliamentary Control over administrative discretion
2. Judicial Control over administrative discretion
3. Procedural and Executive Control

Parliamentary control over Administrative Discretion

There are several grounds of parliamentary control.
1. Direct General Control – The first form of parliamentary control shall be exercised at the time the enabling act is
passed. This is Parliamentary hearings that are of a general and direct control sort. In India, different methods and
procedures are used, such as discussions on the delegation bill, which include aspects such as requirement, scope,
form of delegation and authority delegated to. In addition, any Member can.ask questions on any aspect of the
delegation of legislative powers and, if disappointed, may give notice of discussion under Rule 59 of the Rules of
Procedure and Conduct of Business in Lok Sabha. Budget cuts during grant voting and committee debates throughna
private member’s Bill requesting changes to the parent act or through a debate at the time of the President’s speech
to.the joint parliamentary session are also useful. Yet in India as well as in the UK. Those methods are seldom
employed. This is due solely to a lack of tradition or experience. However, scholars think that this approach should
be used widely and efficiently to nip delegation vices in the bud.
2. Direct Special Control – Prominent among these remedies is the “laying on the table” method, which demands
that administrative “laws” rendered under delegated authority be submitted for approval to the legislature. Under
direct control, laying is an important and necessary feature, and it is laid down in compliance with the law, which
ensures that it should be put before Parliament after making the regulation. It contains three important parts to be
exercised according to.the degree of control required.
● Simple Laying
● Negative Laying
● Affirmative Laying
And two key tests are “Mandatory test” & “Directory test.”
i. Mandatory testing – Where laying demand is a condition pattern to direct the rule into effect, then laying need is
compulsory in such ancase. Where the clause that the rules should be drafted in a particular format is specified then
it becomes mandatory to adopt the format.
ii. Directory test – If the laying prerequisite is next to enforce the rule, it will be a directory in nature.
3. Indirect control – This is a power every Parliament and its committees exercise. Subordinate legislation is another
term for such form of committee. The committee’s principal job is to investigate.
● Whether rule are according to general object of the act.
● It bars the jurisdiction of the court in direct or indirect ways.
● Whether it has retrospective effect or not.
● Whether it safeguard or destroy the Principle of Natural Justice.
● Expenditure involved in it is from Consolidated fund.
In the case of Narendra Kumar v. Union of India, it was held by the Supreme Court that the provision under Section
3(5) of the Essential Commodities Act, 1955, which explains that any rules framed under the Act must be presented
before both the houses of the Parliament. Therefore, clause 4 of Non – Ferrous Control Orders, 1958 has no effect
until it is presented in the Parliament.

Judicial Control over Administrative Discretion

The rule of law has been applied to judicial review. The court must see that the delegated authority as defined is
within the meaning of the Constitution. Judicial review is more effective as it is[2] not recommended by the.court,
but it specifically violates the ultra vires law. In accordance with section 13(3)(a) “Rule” is stated in the Indian
Constitution which clearly indicates that the State should not make any law which abridge the right given in Part iii
of the Constitution. It is dependent on two basic grounds:
● It is ultra vires to the Constitution of India, and
 ● It is ultra vires to the enabling Act.
Although Indian courts have established some successful guidelines for proper exercise of discretion, the conspectus
of judicial conduct remains stagnant, varied, and residual, and lacks American courts’.activism. Administrative
direct judicial review process is exercised in two grounds :
(1) Control at the stage of delegation of discretion – The court exercises control over the delegation of discretionary
powers to the government by adjudicating the constitutionality of the law under which these powers are delegated in
relation to the fundamental rights set out in Part III of the Constitution of India. Consequently, if the law confers
undefined and broad discretion on any administrative authority, it may be considered ultra vires Article 14, Article
19 and other Constitutional provisions.
(2) Control at the stage of the exercise of discretion – In India, unlike the USA, there is no Administrative Procedure
Act which provides for judicial review of administrative authority exercising. The.power of judicial review therefore
derives from the statutory structure of the tribunals. Indian courts have always held the view that judge-proven
discretion is a negation of the rule of law. Thus, they developed different formulations to control the exercise of
administrative discretion.
In P.B. Samant v. State of Maharashtra, the court held the distribution of cement against the law and the circulars or
guidelines issued by the Government on that behalf as bad. The distribution of cement was in favour of certain
builders in return for the donations given by them to certain foundations of which the Chief Minister was a trustee. It
was a clear case of mala fide exercise of power. The power to control the distribution of an essential commodity like
cement is given to the Government with a view to ensuring its equitable distribution. When this power is used for
obtaining donations for a trust, it is a clear case of abuse of power.

Procedural and Executive Control

There is no clear protocol for this until the legislature compels the executive to obey those laws or procedures. It
may take a long time to follow a.particular format which will certainly negate the actual purpose of the act.
Procedural regulation therefore means that certain rules are laid down under the Parent Act which must be followed
whilst it is compulsory or directory to follow it or not. It includes three components:
● i. Pre publication and consultation with an expert authority,
● ii Publication of delegated legislation.
● iii Laying of rules.
It can be either Mandatory or Directory, to know, certain specified parameters are given:
● i.Scheme of the Act.
● ii.Intention of Legislature.
● iii.Language used for drafting purpose.
● iv.Inconvenience caused to the public at large scale.
And these four parameters were given in the case Raza Buland Sugar Co. vs. Rampur Municipal Council.

Wednesbury Principle (Doctrine of Proportionality)

Doctrine of proportionality finds its place in the Administrative Law and is used at the stage of Judicial Review. The
doctrine assets that there must be a reasonable nexus between the desired result and the measures taken to reach that
goal. The action taken must not be shockingly disproportionate to the consciousness of the court and the said action
can then be challenged by way of judicial review.

It can be better understood with the help of an illustration. Let's say, if in a workplace some workers remain absent
from their duty then the punishment for it must be proportional, that is, the employer may treat it as leave without
pay and may warn them or may even levy a fine but to dismiss them from service permanently would be
disproportional.

Sir John Laws has described 'proportionality' as a principle where the court is concerned with the way in which the
decision maker has ordered his priority.

Lord Diplock in [R Vs Goldstein 1983 (1) WLR 151]�in a bit to explain proportionality said:
This would indeed be using a sledge-hammer to crack a nut 'Proportionality' involves a Balancing test which keeps a
check on the excessive or arbitrary punishments or encroachment upon the rights and Necessity test which takes into
account other less restrictive alternates.
Judicial Review of legislative and executive action has been one of the most important developments in the field of
public law in the last century. Though the concept of Judicial Review was developed way back in 1803 in the
famous case of [Marbury Vs. Madison, 5 US 137 (1803)], it found wide application only in the later periods of the
20th Century, when in the aftermath of the World War II, democracy came to be the governing political principle in
most parts of the world. Since then the scope and ambit of Judicial Review has been one of the Central themes of
discussion in the branch of Administrative Law.

Among the two - Executive and Legislative actions - it is the Judicial Review of Executive action (Administrative
action) that has assimilated much content enrichment, particularly in the last two decades. The growth of Modern
Welfare State coupled with the technological advances has resulted in the legislature not only leaving wide areas of
discretion to the administrative authority but also even delegating many of its powers and functions.

This has resulted in the modern day bureaucrat becoming extremely powerful. This often leads to misuse of
discretion vested in him there by requiring frequent Judicial intervention. However this intervention should not
result in the Judiciary encroaching into areas reserved for the Executive. Consequently, the scope and ambit of
Judicial Review must be limited to the extent just necessary to prevent the abuse of the discretion conferred on the
Executive.

To achieve this limiting function of Judicial Review, common law systems and civil law systems reacted differently
and developed different processes. In common law jurisdictions the concept of secondary review was developed to
achieve this limiting function of Judicial Review. Under the concept of Secondary Review the Courts would strike
down Administrative Orders only if it suffers the vice of Wednesbury unreasonableness [Associated Provisional
Picture Houses Vs. Wednesbury Corporation (1947) 2 All ER 74 (CA)], which means that the order must be so
absurd that no sensible person could ever dream that it lay within the powers of the administrative authority.

The civil law jurisdictions on the other hand developed the concept of proportionality based review (Primary
Review) which is a much more intensive form of Judicial Review. The principle of proportionality ordains that the
administrative measure must not be more drastic than is necessary for attaining the desired result. Though the
common law countries prefer Secondary Review, it could not ignore proportionality based review for long. This was
not only because of the advantages associated with proportionality based review but also because of the
establishment of an European Court and the consequential growth of a separate pan European jurisprudence
primarily based on civil law concepts.

India, a former colonial State of British Empire, inherited from British India, the common law system. After
Independence, India chose to retain the common law system without much change. Indian Courts have always found
it desirable to follow English precedents while deciding domestic cases. This has virtually been the case in the
development of Administrative Law in India. Inspite of Article 226 and Article 32 read with Article 13 of the
Constitution of India giving the Constitutional Courts much wider scope to interfere with Executive Orders, the
Indian Courts have chosen to follow the English concept of Wednesbury's reasonableness.

However, with the doctrine of proportionality fast gaining currency across the world including common law
countries, the Indian Legal System could not remain closed for long and in the case of Omkumar v Union of India 4
the Indian Supreme Court accepted the doctrine of proportionality as a part of Indian law.

Origin And Development; From Reasonableness to Proportionality

The doctrine of proportionality is a European origin. It is imbibed in European Droit Administratif and is one of the
most important legal principles in the 'European Administrative Law.' In Britain, the Principle of Proportionality
has, for so long, been treated as a part of the Wednesbury's Principle of reasonableness which postulated the basic
standard of reasonableness that ought to be followed by a public body in its decisions. It stated that if a choice is so
unreasonable to the point that no sensible expert could ever take those actions or employ the methods adopted, then
such activities are subject to be liable and quashed through Judicial Review.

Although the Doctrine of Proportionality has been dealt with as a part of the Wednesbury's Principle, the Courts
have adopted a different position when it comes to the Judicial intervention in terms of the Judicial Review. It has
been held that the principle entails the reasonableness test with a heightened scrutiny.
On other words, to apply this doctrine, not only the decisions have to be within the limits of reasonableness, but
only, there has to be a balance between the advantage and disadvantage in the outcome that has been achieved
through the administrative action. Therefore, the extent of Judicial Review is more intense and greater on account of
the 'proportionality' test than the 'reasonableness' test. Furthermore, the Court while applying the rule of
proportionality will think about the public and individual interest in the matter which is not done while applying the
Wednesbury's principle of unresaonableness.

Indian Approach To The Doctrine Of Proportionality

The Indian Supreme Court consciously considered the application of the concept of proportionality for the first time
in the case of [Union of India Vs. G. Ganayutham, (2006) 65 (1) C.L.J.174, p. 175]. In that case the Supreme Court
after extensively reviewing the law relating to Wednesbury unreasonableness and proportionality prevailing in
England held that the 'wednesbury' unreasonableness will be the guiding principle in India, so long as fundamental
rights are not involved.

However the Court refrained from deciding whether the doctrine of proportionality is to be applied with respect to
those cases involving infringement of fundamental rights. Subsequently came the historic decision of the Supreme
Court in [Omkumar Vs. Union of India, AIR 2000 SC 3689].

It was in this case that the Supreme Court accepted the application of proportionality doctrine in India. However,
strangely enough the Supreme Court in this case suddenly discovered that Indian courts had ever since 1950
regularly applied the doctrine of proportionality while dealing with the validity of legislative actions in relation to
legislations infringing the fundamental freedom enumerated in Article 19 (1) of the Constitution of India.

According to the Supreme Court the Indian Courts had in the past in numerous occasions the opportunity to consider
whether the restrictions were disproportionate to the situation and were not the least restrictive of the choices. The
same is the position with respect to legislations that impinge Article 14 (as discriminatory), and Article 21 of the
Constitution of India. With respect to the application of the doctrine of proportionality in administrative action in
India, the Supreme Court after extensively reviewing the position in England came to a similar conclusion.

The Supreme Court found that administrative action in India affecting fundamental freedoms (Article 19 and Article
21) have always been tested on the anvil of proportionality, even though it has not been expressly stated that the
principle that is applied is the proportionality principle. Thus the Court categorically held that the doctrine of
proportionality is applicable to Judicial Review of administrative action that is violative of Article 19 & Article 21
of the Constitution of India.

With respect to Article 14 of the Constitution of India, Supreme Court concluded that when an administrative action
is challenged as discriminatory the Courts would carry out a Primary Review using the doctrine of proportionality.
However when an administrative action is questioned as arbitrary the principle of Secondary Review based on
Wednesbury principle applies. The Supreme Court also held that punishment in service law is normally challenged
as arbitrary under Article 14 of the Constitution of India, and hence only Secondary Review based on Wednesbury
principle would apply.

This according to the Supreme Court is because in such matters relating to punishments in service law, no issue of
fundamental freedom or of discrimination under Article 14 of Constitution of India applies. However even after a
decade since the decision in Omkumar's case, no further progress has been made. The law regarding proportionality
in India remains at what has been stated in Omkumar's case. The only advancement could be the vague observation
in a few subsequent Judgments that the doctrine of unreasonableness is giving way to the doctrine of proportionality.
[see Indian Airlines Ltd. Vs. Praba D. Kanan AIR 2007 SC 548; State of U. P. Vs. Sheo Shankar Lal Srivastava
(2006) 3 SCC 276 51].

Thus, in India, under the current state of law, as declared by the Supreme Court, proportionality review with respect
to administrative action has only limited scope. This is because, in India much of the administrative action is
challenged before the Courts primarily on the ground of arbitrariness and this can be challenged only on the ground
of Wednesbury unreasonableness. Thus in reality the decision in Omkumar's case has not significantly enhanced the
scope of Judicial Review in India.
No reason as such is given by the Supreme Court in Omkumar's case as to why doctrine of Wednesbury
unreasonableness alone should be applied to challenges under the head of arbitrariness.

However there can be at least two reasons for this:

1. First of all, the Supreme Court was simply accepting a similar classification in England by which
proportionality review was applicable only when convention rights were involved and Wednesbury
principle alone was applicable when non convention rights were involved. [Brind Vs Secretary of State for
the Home Department, (1991) 1 All ER 720 P. 723].
�
2. Secondly, just like Lord Lowry the Supreme Court may have feared a docket explosion when the threshold
of review is lowered.
The latter of these two reasons cannot and should never be the reason for not allowing a better and more intensive
standard of review. Initially there may be a increase in the number of cases, but when it becomes clear to the
decision makers that the Judiciary is adopting a much more intense standard of review, they would themselves
reassess their decision making process and bring their decisions in tune with the new standard of review. As for the
former reason, the distinction between convention and non convention rights as regards application of
proportionality is fast disappearing [See R (AlConbury Developments Ltd.) Vs. Secretary of State for Environment,
Transport & Regions, (2001) 2 All ER 929].

Furthermore, the Supreme Court's distinction based on arbitrariness is not conceptually strong. First of all, the
assumption behind this classification is that an Administrative Order which is arbitrary would seldom be violative of
fundamental rights or is discriminatory. This is patently erroneous in most cases.

For e. g., suppose a government employee is dismissed from service under the service law for attending a religious
congregation, then the order is not only arbitrary but also violative of at least two of his fundamental rights namely
his freedom of religion under Article 25 of Constitution of India and his freedom to assemble under Article 19 (1)(b)
of the Constitution of India.

Similarly an administrative act denying promotion for a sufficiently experienced government employee and at the
same time promoting similarly placed persons will be per se not just arbitrary but also discriminatory.

Secondly, when a Petitioner having sufficient locus standi challenges an administrative act as arbitrary, he is doing
so only because one or other of his rights - fundamental, statutory or common law - has been violated. If the
classification made by the Supreme Court is adopted then the first task before the Court is to determine which type
of right has been affected.

This is not an easy task for there can be no clear cut boundaries between fundamental rights and non fundamental
rights particularly when the Supreme Court has itself given a very broad meaning to Article 21 of the Constitution of
India. This task becomes even more difficult, when one considers the fact that usually an administrative act is
violative of more than one right. Hence much of Judicial time would be wasted in deciding the nature of the right.

In the alternative, the Judicial time could be effectively used in evaluating whether the decision maker has properly
balanced the priorities while taking the decision. Obviously a variable intensity of proportionality review - based on
the concept of Judicial deference and Judicial restraint - can be adopted depending upon the subject matter and the
nature of the rights involved.

Equally important is the consideration whether the administrative action challenged as arbitrary should remain
within the purview of Wednesbury principle. For this, it is pertinent to look at the meaning of the word arbitrariness.
It is never an easy term to define with precision and hence the Supreme Court in the case of [Shrillekha Vidyarthi
Vs. State of U. P, AIR 1991 SC 537] equated arbitrariness with reasonableness.

By equating arbitrariness with Wednesbury unreasonableness, the decision maker escapes serious Judicial Review.
But this is fast changing. Proportionality is fast replacing Wednesbury reasonableness which the Supreme Court
itself has observed in a large number of recent cases. After all there is nothing wrong in a modern democratic society
if the Court examines whether the decision maker has fairly balanced the priorities while coming to a decision. At
any rate, the intensity of proportionality review is variable depending upon the subject matter and the nature of
rights involved.

After the conscious adoption of the doctrine of proportionality into Indian law in the Omkumar's case the only case
where the Supreme Court has expressly adopted the doctrine of proportionality is the case of [Sandeep Subhash
Parate Vs. State of Maharastra (2006) 1 SCC 501].

In that case a student obtained admission to Engineering Course based on a Caste Certificate, which was subsequent
to the admission, invalidated. However, he completed the course based on an interim order of the High Court. Yet
the University refused to grant him the degree. This action of the University was held to be correct by the High
Court.

The Supreme Court in appeal directed the University to grant him degree subject to the appellant making a payment
of Rupees One lakh, to re-compensate the State for the amount spend on imparting education to him as a reservation
candidate. This, the Supreme Court claimed was done having regard to the doctrine of proportionality.

But the Supreme Court did not come to a finding that the University had failed to balance the various considerations
before refusing to grant the appellant the degree. Also, the Supreme Court apart from mentioning the facts of the
case failed to explain how it came to the conclusion regarding proportionality. At any rate the Supreme Court itself
admitted that it was taking the decision under Article 142 of the Constitution of India.

Hence the choice between the European model and the British model in the Indian context will be a purely academic
exercise. As suggested by Julian Rivers the choice would be in favour of the European model. Further such a
selection gets some Judicial backing from the decision of the Supreme Court in Omkumar's case wherein the Court
while defining proportionality held that the legislative and administrative authority must be given a range of choice,
but the courts can decide whether the choice infringes the rights excessively or not.

This would indicate that the Supreme Court does intent that the fair balance stage (last stage) of the European model
must be part of proportionality review. Hence the conclusive argument would be that the European conception of
proportionality review should be the appropriate test that should be applied in the Indian context.

The principle of proportionality evaluates two aspects of a decision:

1. Whether the relative merits of differing objectives or interests were appropriately weighed or fairly
balanced?
2. Whether the measure in question was in the circumstances excessively restrictive or inflicted an
unnecessary burden on affected persons?

The Court in such a case will not be concerned with the correctness of the decision rather the method to reach such
decision. [Maharashtra Law Development Corporation Vs. State of Maharashtra, (2011) 15 SSC 616. �The decision
making process involves attributing relative importance to various aspects in the case and there the doctrine of
proportionality enters.
In [Ranjit Thakur Vs Union of India, (1987) 4 SCC 611], wherein, an Army Officer disobeyed the lawful command
of his superior officer by not eating food offered to him. Court Martial proceedings were initiated and a sentence of
one year rigorous punishment was imposed. He was also dismissed from service, with added disqualification that he
would be unfit for future employments.

It was held that Judicial Review generally speaking, is not directed against a decision, but is directed against the
decision making process. The question of the choice and quantum of punishment is within the jurisdiction and
discretion of the Court-Martial. But the sentence has to suit the offence and the offender. It should not be vindictive
or unduly harsh. It shouldn't be so disproportionate to the offence as to shock the conscience and amount in itself to
conclusive evidence of bias.

The doctrine of proportionality, as part of the concept of judicial review, would ensure that even on an aspect which
is, otherwise, within the exclusive province of the Court-Martial, if the decision of the Court even as to sentence is
an outrageous defiance of logic, then the sentence would not be immune from correction. Irrationality and perversity
are recognized grounds of Judicial Review. All powers have legal limits.
In [Coimbatore Distt. Central Co-operative Bank Vs. Employees Association, (2007) 4 SCC 669] Certain
Employees went on illegal strike. They also prevented others from discharging their duty. It was held that the acts
amounted to Serious misconduct. Punishment imposed on the employees of stoppage of increment could not be said
to be disproportionate to the charges levelled and proved against employees.

In [K. S. Puttaswamy Vs. Union of India, 2017 (10) SCC 1] - Test of proportionality was upheld by the Hon'ble
Supreme Court. It was held that in the case of proportionality of a measure must be determined while looking at the
restrictions being imposed by the State on the fundamental rights of citizens. It is not just the legal and physical
restrictions that must be looked at, but also the fear that these sorts of restrictions engender in the minds of the
populace, while looking at the proportionality of measures.

Most recently, in [Anuradha Bhasin Vs. Union of India �2019 SCC Online SC 1725], �wherein, the validity of
internet shutdown and movement restrictions in J&K was challenged in the Hon'ble Supreme Court. It was held - To
summarize the requirements of the doctrine of proportionality which must be followed by the authorities before
passing any order intending on restricting fundamental rights of individuals.

In the first stage itself, the possible goal of such a measure intended at imposing restrictions must be determined. It
ought to be noted that such goal must be legitimate. However, before settling on the aforesaid measure, the
authorities must assess the existence of any alternative mechanism in furtherance of the aforesaid goal. The
appropriateness of such a measure depends on its implication upon the fundamental rights and the necessity of such
measure.

It is undeniable from the aforesaid holding that only the least restrictive measure can be resorted to by the State,
taking into consideration the facts and circumstances. Lastly, since the order has serious implications on the
fundamental rights of affected parties, the same should be supported by sufficient material and should be amenable
to judicial review.

Conclusion
From the above analysis it is patently clear that at the international level Wednesbury unreasonableness is on a
terminal decline. It is fast being replaced by the doctrine of proportionality which is a much more intense form of
review which seeks to see whether the decision maker has properly balanced the various factors that he has to take
into consideration before rendering a decision. Further there are two competing models of proportionality, namely,
European model and the British model. Of the two the European model is more efficient and objective.

In the Indian context it is amply clear that even though proportionality was made part of the Indian law as early as
2000, there is hardly any significant use of doctrine in India. Not only has the doctrine as adopted by the Supreme
Court, limited application, but even within that applicable range, it has hardly been used.

Indian Courts were given regulated power in the name of this doctrine. And the doctrine took a very narrow
approach in its existence. But it is highly required that the doctrine should establish itself in its proper manner and
should be applied in order to curb the actions of the administrative bodies in the chains of proportionality in the
cases when they outreach the requirement of the reasonability and come in the frame of arbitrariness.

Though it the duty of the Court to respect the position of the administrative body, but it is important to analyse that
the doctrine is not to undermine the position of any such administrative body but to regulate every action so that no
action of administrative body should be beyond the purview of the principles of law that are existing. This is not
only for the development of the legal system of the country but also for the Protection of Rights of the citizens of the
country.

However sooner or later Courts in India will have to actively consider implementing the doctrine of proportionality
in all cases coming before it irrespective of whether fundamental or ordinary rights of citizens / persons are
involved. This is because of the fact that human rights jurisprudence that has come to dominate the legal system
includes not just fundamental rights but other rights also. Hence the urgency of adopting the doctrine of
proportionality cannot be overlooked for otherwise steam hammers would increasingly be used to crack nuts even if
nut crackers are sufficient.
Doctrine of LegitimateExpectation.
The doctrine of ‘Legitimate Expectations’ is one amongst several tools incorporated by the Court to review
administrative action. This doctrine pertains to the relationship between an individual and a public authority.
According to this doctrine, the public authority can be made accountable in lieu of a ‘legitimate expectation’. A
person may have a reasonable or legitimate expectation of being treated in a certain way by the administrative
authorities owing to some consistent practice in the past or an express promise made by the concerned authority.

Origin of Doctrine of Legitimate Expectations

The doctrine is not a specific legal right engraved in a particular statute or rule book. The first time, an attempt was
made to establish the principles of the doctrine were in the case of Council of Civil Service Unions and Others v.
Minister for the Civil Service ([1985] AC 374), that the decision by the public authority should affect the person
such that-

● His rights or obligations are altered, which are enforceable by or against him
● He is deprived of some benefit or advantage which he had been permitted by the authorizing body in
the past and which he could have legitimately expected to enjoy until a valid ground for withdrawal of
the same was communicated to him or he had been assured by the decision making body that such a
benefit or advantage would not be withdrawn until him being given an opportunity of contending
reasons as to why they were withdrawn.

What is a legitimate expectation

The term “legitimate expectation”, which was coined by Lord Denning in 1969, is an expectation of an ordinary
man to have benefit or relief, which is a consequence of a promise or representation, either express or implied, made
by the administrative authority concerned or its prior established practice. Hence, a legitimate expectation is an
expectation to be treated in a particular way by the administrative authority or to receive some benefit as a matter of
public law, although no such enforceable right is conferred on him under private law. Thus, this doctrine creates a
central space between ‘no claim’ and a ‘legal claim’.

The Supreme Court of India described this doctrine accurately in Ram Pravesh Singh and Ors. v. State of Bihar and
Ors. (2006), as “a person can be said to have a ‘legitimate expectation’ of a particular treatment, if any
representation or promise is made by an authority, either expressly or impliedly, or if the regular and consistent
past practice of the authority gives room for such expectation in the normal course”. Thus, the Supreme Court,
through various judgements, has developed this doctrine in order to keep a check on the abuse of administrative
power by public bodies.

Whether legitimate expectation is a legal right

There is no legal right conferred on an expectant, the person who has a legitimate expectation, in the application of
the doctrine of legitimate expectation in administrative actions. As it is not a legal right, it is not absolutely
enforceable in all cases. This doctrine is a concept designed by the courts; hence, it is up to the courts to decide on
its enforceability.

Therefore, the legitimate expectation is neither a legal right given to an expectant nor a duty of administrative
authority, but rather a procedural aspect on the part of the courts for invoking their power of judicial review of
administrative actions that affect the said person, based on the requirement.
The legitimate expectation may not be a distinct enforceable legal right, but if the same is not given due
consideration by the public authority in a decision-making process, it is said that the decision taken by the authority
has violated the rule of non-arbitrariness, an essential concomitant of the rule of law, and the same can be
invalidated on the ground of arbitrariness. In this regard, the Supreme Court stated, in M. P. Oil Extraction and Anr.
etc. v. State of Madhya Pradesh and Ors. (1997), “the doctrine of ‘legitimate expectation’ operates in the domain of
public law and, in appropriate cases, constitutes a substantive and enforceable right.”

Illustration

Let us illustrate that a state government introduced a ‘drinking water supply’ programme to remote areas where
people were walking miles to get drinking water. In the notification of the programme, the names of all villages are
mentioned as initial targets. However, through another notification, the government removed a few previously
mentioned villages without citing any reasons. In this case, the legitimate expectations of the people from these
villages, which are excluded from the purview of the scheme, are violated. If the decision to exclude those villages
by the state government is just and reasonable, the Court cannot intervene. Contrarily, if it was unfair and arbitrary,
the Court would accept the matter and hold the government responsible. Therefore, the doctrine of legitimate
expectation ensures that the administrative authorities are abiding by the principles of natural justice.

Case Survey

Origin and development of Doctrine of Legitimate Expectations in India

The Doctrine of Legitimate Expectation was first discussed in the Indian arena in the case of State of Kerala v. K.G.
Madhavan Pillai ((1988) 4 SCC 669). Herein a sanction was issued for the respondents to open a new aided school
and to upgrade the existing schools, however, an Order was issued 15 days later to keep the previous sanction in
abeyance. This Order was challenged by the respondents instead of violation of principles of natural justice. The
Supreme Court ruled that the sanction had entitled the respondents to legitimate expectation and the second order
violated principles of natural justice.

In another Supreme Court case, Navjyoti Coop. Group Housing Society v. Union of India ((1992) 4 SCC 477),
wherein the new criteria for allotment of land was challenged. In the original policy, the seniority with regard to the
allotment was decided based on the date of registration. Subsequently, a policy change was made in 1990, changing
the criteria for deciding seniority based on the date of approval of the final list.

The Supreme Court thought that the Housing Societies were entitled to ‘legitimate expectation’ owing to the
continuous and consistent practice in the past in matters of allotment. The court further elucidates on the principle
stating that the presence of ‘legitimate expectations’ can have different outcomes and one such outcome is that the
authority should not fail ‘legitimate expectation’ unless there is some justifiable public policy reason for the same.

It is further emphasized that the availability of reasonable opportunity to those likely being affected by the change in
a policy which was consistent in nature is well within the ambit of acting fairly. The Honorable Court held that such
an opportunity should have been given to the Housing Societies by way of a public notice.

The Supreme Court elaborated on the nature of the doctrine of legitimate expectations in Food Corporation of
India v. Kamdhenu Cattle Feed Industries ((1993) 1. S.C.C. 71), that the duty to act fairly on the part of public
authorities, entitles every citizen to have legitimate expectation to be treated fairly and it is imperative to give due
importance to such an expectation to satisfy the requirement of non-arbitrariness in state action or otherwise it may
amount to abuse of power. The Court further made a remarkable point that such a reasonable or legitimate
expectation may not be a directly enforceable legal right but failure in taking it into account may deem a decision
arbitrary. To decide whether an expectation is a legitimate one is contextual and has to be decided on a case-by-case
basis.

In Union of India v. Hindustan Development Corporation ((1993) 3 SCC 499), the Supreme Court has dealt with
the doctrine in great detail, starting with the explanation of the scope of the doctrine in Halsbury’s Laws of England,
Fourth Edition, Volume I (I) 151 which says that a person can have a legitimate expectation of being treated in a
certain fashion even though he doesn’t have a legal right to receive the same.

Origin and development of Doctrine of Legitimate Expectations in English Law

The Court discusses that how the doctrine of legitimate expectations first stepped into English Law in the case of
Schmidt v. Secretary of State for Home Affairs ((1969) 2 Ch. 149) wherein it was observed that a foreigner who
had been given leave to enter the United Kingdom, had the right to be heard and had a legitimate expectation of
being allowed to stay for the allowed time.

The Court further goes on to discuss the famous case of A.G. of Hong Kong v. Ng Yuen Shiu ((1983) 2 A.C. 629)
wherein Lord Fraser had observed that if a public authority has vowed to follow a procedure, it is imperative that it
acts fairly and fulfils its promise, in the interest of good administration. The Court remarks that there is an absence
of meaning and scope of the doctrine of legitimate expectation given by the Supreme Court and henceforth it would
like to elaborate on the subject. The Court distinguishes expectation from anticipation and states that an expectation
can be said to be legitimate only if it has a legal sanction or is backed by a procedure or custom that has been
followed consistently.

This case can be categorized as a landmark one in the Indian discourse since it specifically draws the realm of the
doctrine stating that it does not involve a ‘crystallised right’ and thus does not pave the way for a direct claim for
relief and the doctrine can be confined to the right of fair hearing in a situation where a promise has been withdrawn
or negative. A substantive expectation doesn’t necessarily amount to an absolute right unless the decision-maker is
not able to justify the withdrawal by overriding public interest and more importantly such a decision should be
founded in arbitrariness, unreasonableness and not justifiably taken in public interest.

The Court further enunciated that if the issue involves a question of policy or change in policy then the Courts must
remain in their domain and refrain from interfering. Thus legitimate expectation may lead to judicial review but the
scope of relief that can be given by the Court is very limited.

Essential elements of the doctrine of legitimate expectation

The doctrine of legitimate expectation can be invoked by a person in civil litigation seeking judicial intervention or
control over administrative actions if the below essential elements of the said doctrine are fulfilled.

The expectation must be legitimate

To apply the above-mentioned doctrine of legitimate expectation, the expectation grown in a person’s mind must be
legitimate or reasonable. If any prudent and ordinary man expects the same responsiveness or attitude from a
particular public authority, then the expectation is said to be legitimate. If the expectation is just a random thought
not derived from or inferred from a particular past event, it cannot be considered legitimate. Therefore, the court
considers the question of the legitimacy of the expectation as a question of fact and decides, not given the
expectant’s perception but from the view of the larger public interest.
Furthermore, expectation is not synonymous with anticipation, wish, desire, or hope, irrespective of their legitimacy.
Also, mere disappointment does not result in legal consequences. The legitimate expectation is not even equated
with terms like ‘claim’ or ‘demand’, which are sought before the courts to enforce the rights they lost, violated, or
left unimplemented.

The legitimacy of an individual’s expectations does not depend upon the moral obligations of the public authority.
Instead, legitimacy is decided based on the laws or customs or, at least, the established practice of the authority,
provided it has consistency in its practice.

Presence of an established and regular practice or express promise

There must be an established and regular practice or an express promise on the part of the administrative authority
concerned. The term “established and regular practice” refers to the practices that are within the powers of the
authority and that have been performed regularly by a particular public authority in the past for a considerable
period. Because of such prior, established practice, the applicant or claimant has a legitimate expectation.

Relationship between expectant and administrative authority

There must be an established relationship between government authorities and the expectant. The relationship can be
a commercial transaction, a dealing, or even a negotiation on a particular issue. The only requirement is that the
expectant should have been engaged in a recognised relationship with the authorities concerned. If the party, either
in the past or present, has no relationship with the authority, then he cannot invoke the doctrine of legitimate
expectation.

Besides this, the other essential aspect is that the established practice, because of which the expectant gained a
legitimate expectation, shall be concerning the aforesaid dealing or negotiation.

Presence of an arbitrary decision by the administrative authority

The decision taken by the administrative authority regarding the issue raised by the claimant must be arbitrary,
unfair, unreasonable, and violative of the principles of natural justice. If the court finds that the public authority has
not considered factors such as public interest or policy while passing an order, which is against the claimant, who is
not even heard before taking such a decision, then there is a strong basis for invoking the doctrine of legitimate
expectation. Contrarily, if the administrative authority took a decision in view of the larger public interest or
according to policy, the court would not interfere with the functioning of the public authority, except in cases where
the administrative decision constitutes an abuse of power. If there is no abuse of power and the decision taken by the
authority is bona fide, the administrative actions will not go through judicial review.

Otherwise, if the administrative authority made the decision on fair and reasonable terms, the court will interfere and
strike down such a decision or order, even if it affects the legitimate expectation of the claimant. Therefore, the
doctrine of legitimate expectation is implemented in case of the presence of an arbitrary decision, not in the case of
procedural fairness.

The claimant must have a locus standi

Besides the above essential element, which ensures a foundation to invoke the doctrine of legitimate expectation, the
claimant must also prove that his case has locus standi to get a judicial review of the administrative actions by
applying the said doctrine. However, in Union of India and Ors. v. Hindustan Development Corporation and Ors.
(1993), the Supreme Court decided that “legitimate expectation gives the applicant sufficient locus standi for
judicial review“. Thus, the doctrine of legitimate expectation comes with the doctrine of locus standi.

Circumstances for the formation of legitimate expectation

Circumstances which may lead to the formation of legitimate expectations were postulated in Madras City Wine
Merchants v. State of Tamil Nadu ((1994) 5 SCC 509) naming-

● If there was some explicit promise or representation made by the administrative body
● That such a promise was clear and unambiguous
● The existence of a consistent practice in the past which the person can reasonably expect to operate in
the same way

It was laid down in P.T.R. Exports (Madras) Pvt. Ltd. And Others vs. Union of India and others (AIR 1996 SC
3461) that the doctrine of legitimate expectations has no role to play when the appropriate authority is empowered to
take a decision under an executive policy or the law itself and that the Government is not restricted from evolving
new policy on account of ‘legitimate expectations’ as and when required in public interest.

The Supreme Court ruled in M.P. Oil Extraction v. State of M.P ((1997) 7 SCC 592) that the doctrine of legitimate
expectations operates in the realm of public law and is considered a substantive and enforceable right in appropriate
cases. It was held that the industries had a legitimate expectation with regards to past practice and the renewal
clause, that the agreements are renewed in a similar manner.

In National Buildings Construction Corporation v S. Raghunathan ((1998) 7 SCC 66), respondents were brought
on deputation for an overseas project that was to be carried out in Iraq by NBCC (Government Company). The
Respondents chose to draw their salary in the same scale as of employee of Central P.W.D along with Deputation
allowance. They were also given foreign allowance at 125% of the basic pay, however, their basic pay was revised.
It was contended by them that this allowance should be paid out of the revised pay scale.

● The claim which was based on legitimate expectations was rejected by NBCC. The Court agreed with
the decision that no such promise or agreement was carried out by NBCC.
● The Court while elaborating on the doctrine, stated that the doctrine has its genesis in the administrative
law and that Government departments ought not to act in an unfettered manner guided by abuse of
discretion.
● The Court also pointed to a procedural aspect stating that the contention of ‘legitimate expectation’
should have been raised in the pleadings itself, and thus the High Court was erroneous in allowing the
plea at the stage of arguments in the absence of pleadings and affidavit to support the same.

It can be inferred from the aforementioned case that the doctrine has both substantive and procedural facets to it.

It was reiterated in the case of Bannari Amman Sugars Ltd. V. CTO ((2005) 1 SCC 625) that guarding legitimate
expectation should not come at the cost of non-fulfilment of an overriding public interest, so to say that in case a
legitimate expectation of a person is not fulfilled, the decision making body can hide behind the veil of ‘overriding
public interest’.

Types of legitimate expectations

Legitimate expectations can be broadly divided into two types, namely, procedural legitimate expectation and
substantive legitimate expectation.

Procedural legitimate expectation

The person claiming to have legitimate expectation has previously possessed an enforceable right, which was taken
away as a result of administrative conduct. Wherever the claimant has a legitimate and reasonable expectation of
having procedural protection, such as providing a fair hearing or being consulted before taking a decision or a
change in policy affecting them adversely, the court provides procedural protection to the claimant. Because of the
provision of procedural expectation on the ground of legitimate expectation, the concept of fairness is being met in
administrative activities. Thus, providing notice and giving a fair opportunity to the decision-maker before making
any decisions is the result of invoking the principle of “procedural legitimate expectation”.

Substantive legitimate expectation

Let’s say that the public authorities have given an assurance relating to the rights of an individual. Subsequently, the
said individual will gain a legitimate expectation that his or her enforceable right will not be defeated. However, the
right has been violated due to the conduct of the administration authorities, like policy changes. Due to such a
violation of rights, the aggrieved party can invoke the doctrine of legitimate expectation. The court may grant the
right that is defeated after examining the facts of the case. This is called the “principle of substantive legitimate
expectation”.

In the initial stages of the development of the doctrine of legitimate expectation, there is only one kind of relief, i.e.,
issuing a notice, for the aggrieved party who has a legitimate expectation and nothing more. That is, there is only a
principle of procedural legitimate expectation. However, the doctrine developed much and included the principle of
substantive legitimate expectation as well through various decided cases. Therefore, the current evolved doctrine of
legitimate expectation not only provides a fair hearing to the claimant but also grants a right that was infringed
arbitrarily. Furthermore, the Supreme Court said, in Punjab Communications Ltd. v. Union of India and Ors. (1999),
“the protection for the substantive legitimate expectation was based on Wednesbury reasonableness”.

Important considerations by the court

All the above-discussed essential elements are important considerations for a court when dealing with cases where
the doctrine of legitimate expectation is invoked by the claimant. As already explained, a legitimate expectation for
an individual arises due to the conduct of the administrative body, whether it is an established practice or a promise
to provide a benefit. Once the individual is deprived of a benefit or right because of an administrative decision or
change of policy, he or she can go against such a decision in court on the grounds of legitimate expectation.

Whenever the doctrine of legitimate expectation is invoked by the expectant, the court should consider the larger
public interest and ensure it is not unfairly carried away with the expectation of the claimant. If there is no public
interest in taking such a decision, the administrative authority must respect the claimant’s legitimate expectations.
Another important consideration for the court is to determine to what extent the legitimate expectation of the
claimant can be protected in light of administrative conduct.

In case of substantive legitimate expectation, the court has no right to alter the new policy, even if it has infringed on
the rights of an individual. The principle allows the court only to examine and decide whether the policy change is
illogical or unreasonable. Even the question of the overriding effect of public interest on the principle of substantive
legitimate expectation should not be dealt with by courts but by decision-makers. Thus, the decision maker, i.e., the
public body, is the one who should decide on the matter of policy, such as whether to withdraw the new policy,
which has the effect of defeating the rights of an individual, or make changes to the new policy. The court interferes
only when the policy in question is irrational or perverse. This was observed by the Supreme Court in the case of
Punjab Communications Ltd. v. Union of India and Ors. (1999).

Result of invoking the doctrine of legitimate expectation

Once an individual, during court proceedings, expresses his legitimate expectation, the court may grant a benefit or
relief in favour of the expectant according to the previous conduct or activities performed by the authority. However,
relief from the administrative authorities cannot be claimed directly in all cases where the doctrine is applied
because the applicant has no definite and absolute right to claim relief. The grant of relief is decided based on the
merits of the case.

The relief may be vitiating the administrative action, making the promise made by the authority unenforceable, or
withdrawing the dealing between the expectant and the administrative authority. For the above purposes, writs like
mandamus or certiorari can be passed.

Limited in scope

The legitimate expectation shall be only one of the grounds for seeking a judicial review of an administrative action
by the court, but the scope of the grant of relief is very limited, as stated by the Supreme Court of India in the case of
Union of India and Ors. v. Hindustan Development Corporation and Ors. (1993).

Right to be heard

The applicant, by virtue of the doctrine of legitimate expectation, is conferred with the right to have a fair hearing
before a judgment is passed, and, thus, the doctrine has a close relationship with the right to be heard. This will
ensure that the non-statutory administrative powers of public authorities are enforced with the application of ethics
of fairness and reasonableness. Therefore, the doctrine of legitimate expectation protects the principle of natural
justice in the actions of public authorities by retaining the established practice or keeping its promise.

Exceptions against the legitimate expectation

The famous authority for the doctrine of legitimate expectation, Ram Pravesh Singh and Ors. v. State of Bihar and
Ors. (2006), the Supreme Court observed that there are a few defences to make the plea of legitimate expectation
inapplicable. The Court said, “public interest, policy change, the conduct of the expectant or any other valid or
bonafide reason given by the decision-maker, may be sufficient to negative the ‘legitimate expectation’.” Thus, the
legitimate expectation has a few exceptions. Let us look at more exceptions.

Contrary to law

If the expectation of the claimant is contrary to law or any statutory enactment, such an expectation cannot be said to
be a legitimate expectation, rather, it would be an ignorance of law that cannot be excused by the State.

For instance, a cinema theatre cannot carry on shows without getting a license from a licensing authority. The
Supreme Court dealt with a case, Ved Gupta v. Apsara Theatres (1983), where a person was managing a theatre
without a license in contravention of the order passed by the District Magistrate. Talking about the doctrine of
legitimate expectation, the Court observed: “The writ-petitioners could not also have any legitimate expectation that
they will be allowed to run the theatre without a licence in violation of the law. In the absence of legitimate
expectation being available to the petitioners, there was no obligation on the part of the District Magistrate to
afford them a hearing before passing the impugned order.”

In addition to this, the Supreme Court, in Assistant Excise Commissioner v. Issac Peter (1994), held that the rule of
legitimate expectation cannot be used as a plea in order to modify, alter, or vary the express terms of the contract
between the parties, especially if the contract is statutory in nature.

Unsuccessful applicant

If the application for receiving a license or other equivalent documents is rejected on the grounds of not fulfilling
any requirements for the same, the unsuccessful applicant cannot invoke the doctrine of legitimate expectation to
have a fair hearing. In this regard, the Andhra Pradesh High Court, in Government Of Andhra Pradesh v. H.E.H. the
Nizam VIII of Hyderabad (1992), said: “In India, the theory of legitimate expectation applies only to a fair hearing
which the petitioner had before his application was rejected or to a final favourable order in pursuance of a similar
intermediate order.”

Non-appointment for bona fide reasons

Let us illustrate that a person who has secured a rank or merit to be in the list of selected people is not recruited or
appointed by the selecting authority to a post in the government service for which he applied and secured merit, not
because of the arbitrariness of the said authority but on the ground of bona fide reasons using his discretionary
powers. In this kind of scenario, the court cannot interfere with the fair decision taken by the authority, even if the
legitimate expectation of the claimant is affected. However, if the court finds arbitrary or unfair terms in the
rejection of the appointment of the selected candidate, then the doctrine of legitimate expectation can be invoked,
and a right to be heard is granted to the candidate.

The right decision in this regard is Union Territory of Chandigarh v. Dilbagh Singh and Ors. (1992). In this case,
the Supreme Court said that the qualified or selected candidate has no indefeasible right to be appointed to a civil
post and, hence, cannot claim a right to be heard before the appointment is rejected for valid reasons.

Public interest

As already discussed, public interest is one of the important considerations that the court should take into account.
Always, the interest of the larger public will be on a higher pedestal and can even override a legitimate expectation
of an aggrieved party. The Supreme Court advised the courts that are dealing with the question of the legitimacy of
the expectation of the claimant to decide the question “not according to the claimant’s perception but in larger
public interest wherein other more important considerations may outweigh what would otherwise have been the
legitimate expectation of the claimant”, in Food Corporation of India v. Kamdhenu Cattle Feed Industries (1992).

Additionally, the benefit on the ground of legitimate expectation cannot be granted by the Court if the expectation is
against the provisions of a statutory enactment whose objective is the public good. This was strongly affirmed by the
Supreme Court in the case of Howrah Municipal Corporation and Ors. v. Ganges Rope Co. Ltd. and Ors. (2003).

Change in the policy

The benefit of the doctrine of legitimate expectation cannot be granted to the claimant if there is a change in the
policy. This can be understood through the case law, S. B. International Ltd. and Ors. v. Assistant Director General
of Foreign Trade and Union of India (1996). The Government of India introduced the ‘Duty Exemption Scheme’
under which materials that are required for export promotion are allowed to be imported without collecting duties,
with the condition of satisfying a value addition that will be notified by the Government through public notice. On a
later date, the public notice specified that the value addition is 1000% in the case of frozen marine products. After a
few months, the value addition was changed to 1900%. Before this change, the petitioner, S. B. International
Limited, made multiple applications for the advance license as it entered into many dealings for export with the view
of the present policy. The petitioner contended that the new value addition would not be applied to the company
because its application was made before the change and pleaded with the court to make the 1000% value addition
applicable in his case based on the rule of promissory estoppel. The Supreme Court denied the plea of promissory
estoppel as the rule does not apply in the case of a change in policy and dismissed the appeal.

Article 14 and Legitimate Expectation

It is a well-known fact that the actions of the State and its agencies must conform to the principle of non-
arbitrariness and fairness, which is one of the main features of Article 14 of the Constitution of India, in all its
activities. Hence, the public authority has some limitations or restrictions in using its powers because absolute power
corrupts absolutely. The State and its authorities should ensure that their activities are for the public good because
Article 14 imposes on the State, including public authorities, the obligation to function fairly and justly. In Food
Corporation of India v. Kamdhenu Cattle Feed Industries (1992), the Supreme Court observed: “This (Article 14)
imposes the duty to act fairly and to adopt a procedure which is `fair play in action’. Due observance of this
obligation as a part of good administration raises a reasonable or legitimate expectation in every citizen to be
treated fairly in his interaction with the State and its instrumentalities, with this element forming a necessary
component of the decision-making process in all State actions.” For the implementation of this aspect of non-
arbitrariness under Article 14, it is necessary for the administrative authorities to fairly consider the legitimate
expectations of claimants while rendering a decision or passing an order, even though it is not a vested right.

It is now an established fact that Article 14 of the Indian Constitution can be enforced not only in cases of arbitrary
‘class legislation’, but also in cases of arbitrary ‘state action’. Therefore, the doctrine is being hailed as a fine
principle of administrative jurisprudence for reconciling power with liberty.

Important case laws

Scheduled Caste and Weaker Section Welfare Association v. State of Karnataka (1991)

This case is an apt example of case law where the principles of natural justice have taken force and justice for the
poor people is served based on legitimate expectations.

The facts of the case are that the Karnataka government announced a particular area as the “slum clearance area”,
which was cancelled through another notification, causing a violation of the legitimate expectation of those people
residing in the before-mentioned area. On examining all the facts of the case, the Supreme Court decided that there
was an apparent infringement of the principles of natural justice.

Punjab Communications Ltd. v. Union of India and Ors. (1999)

In this case, the Supreme Court held that the legitimate expectation can be both procedural and substantive because
this doctrine goes with the concept of the rule of law, which implements fairness in both procedural and substantive
aspects. In this case, the Court further clarified that the procedural aspect of legitimate expectation is granting the
right to be heard or any other proper procedure before the authority makes any change to its previous decision.
Whereas, the substantive aspect of the doctrine is the grant or continuance of some benefit, which is substantive in
nature. Both of these aspects should be provided to the claimant; if not, then the authorities must cite reasonable
grounds for the same as well as provide a fair chance to the expectant before taking a decision or passing an order.
Dr. (Mrs.) Chanchal Goyal v. State of Rajasthan (2003)

In this case, the appellant is Dr. Chanchal Goyal, who was recruited under the local self-government department, the
government of Rajasthan. In the appointment order, it was specified that her recruitment is purely temporary, i.e., for
the period of six months or till she was selected by the Rajasthan Public Service Commission, whichever is earlier.
Generally, her continuance cannot go beyond one year in the absence of the approval of the service commission.
However, by virtue of the successive extension orders, her tenure ended even after one year. Later, on the terms of
the appointment order, she was removed from the post. She took the plea of legitimate expectation. The Supreme
Court rejected the plea and ruled that “mere continuance in service does not imply waiver (of the stipulation
mentioned in the appointment order)”.

Conclusion

The doctrine has undoubtedly gained significance in the Indian Courts, giving locus standi to a person who may or
may not have a direct legal right. The doctrine of legitimate expectations very well leads to a procedural right i.e.
right to judicial review in India but the substantive aspect of the doctrine can be said to be in a budding stage. There
has been hesitance amongst academicians as to whether the doctrine should apply to substantive rights at all. It has
been argued that application of the doctrine to substantive rights might result in failure of separation of powers and
would qualify as overstepping of Judiciary’s powers.

Besides this, the doctrine of legitimate expectation in public law, i.e., administrative law, was praised as it helps the
court deliver justice to the people who could not seek relief based on the statutory provisions or law. It also makes
the State and its authorities or departments accountable and responsible towards the people of the country. Thus, we
can conclude that the doctrine of legitimate expectation is based on the principle that public power is a trust that
must be exercised in the best interest of its beneficiaries, i.e., the people.

UNIT_5
Remedies available against the State-writs
As India is celebrating its 75th year of Independence, so it is really very important of its citizen to know the
constitutional remedies which are given to them directly through constitution.

The speech given by DR. Ambedkar clearly indicates its unique position in the constitution "if I was asked to name
any particular Article in the Constitution as the most important - an Article without which this constitution would be
a nullity - I could not refer to any other Article except this one. It is the very soul of the constitution and the very
heart of it."

Is is very important to mention that fundamental right is of no use if we don't have the proper mechanism to make
these available rights to the citizens. It is the remedies only which gives the rights the real meaning. There will be no
use of those long list of the fundamental rights without the constitutional remedies

In our constitution these remedies are available under article 32 by which we can approach to the supreme court in
case of the infringement of the fundamental rights, it is to be noted that article 32 is also one of the fundamental
rights.

Article 226 also gives power to High courts to issue writs in case of the infringement of the fundamental rights.
Provisions In The Constitution

Article 32 contain 4 clauses:

Clause 1 - "The right to move the Supreme Court by appropriate proceedings for the enforcement of the rights
conferred by this Part is guaranteed."

Is says that in case of breach of the fundamental rights by the state or other authorities as explained in article 12 ,
one can direct approach to the apex court i.e supreme court .

Supreme court has both original as well as concurrent jurisdiction in case of violation of fundamental rights

Original jurisdiction as an indivisual can directly approach to the supreme court without following the procedure of
appeal where as concurrent jurisdiction as in case of violation of fundamental right we can file writ in both supreme
court under article 32 or high court of the state under 226.

However it is said that the relief is available in both supreme court and Hight court , it is held by the supreme court
that one should first approach to the high court in case of infringement of fundamental rights.

In the Chandra Kumar case (1997), the SC ruled that the writ jurisdiction of both the high court and the Supreme
Court constitute a part of the basic structure of the Constitution.

Clause 2 - "The Supreme Court shall have power to issue directions or orders or writs, including writs in the nature
of habeas corpus, mandamus, prohibition, quo warranto and certiorari, whichever may be appropriate, for the
enforcement of any of the rights conferred by this Part."

These writs has been incorporated in the constitution from the united kingdom but it is not applied in very strict
sense in India as applied there.
1. Habeas Corpus:
The meaning of the word "Habeas corpus" is "to have the body". This writ is used against unlawful
detention of an individual or where there is no suitable reason and ground for the valid detention.

Therefore, one may approact to either hight court or supreme court for the enforcement of their
fundamental rights.

2. Mandamus:
It is a latin word which means "we command". This writ is used by the Indian courts against the public
office holders in case they are not performing their work and duties in the manner prescribed.

This writ can be issued against president as well as Governor of the state and, cannot be issued against
private organizations.

3. Prohibition:
In literal term it means "to forbid". This writ is issued by the higher courts to the lower courts in case they
exceed their jurisdiction or working out of jurisdiction.

4. Quo Warranto:
The literal meaning of the word is "by what authority or warrant". This writ is used to resolve a dispute
over whether a specific person has the legal right to hold the public office that he or she occupies.

5. Certiorari:
the literal meaning of the term is "to be informed". This writ is issued against the judicial or quasi- judicial
body by the higher courts to transfer any case or to quash the case. It cannot be issued against the
administrative or legislative or private body.
Clause - 3 "Without prejudice to the powers conferred on the Supreme Court by clauses (1) and (2), Parliament may
by law empower any other court to exercise within the local limits of its jurisdiction all or any of the powers
exercisable by the Supreme Court under clause (2)."

This clause gives power to parliament which further empowers other courts to exercise the same power given to the
supreme court in its local jurisdiction.

It is also very well connected with Article 139 in which parliament may by the law confers power to the supreme
court to issue all the 5 writs along with the directions and orders.

Clause- 4 "The right guaranteed by this article shall not be suspended except as otherwise provided for by this
Constitution."

This clause mention the exception that on the proclamation of an emergency by the president under Article 352, the
fundamental rights will be suspended therefore one cannot move to either supreme court or high court under Article
32 and 226 Respectively in case of violation of fundamental rights.

Conclusion
Article 32 gives incredible powers to supreme court to issue writs in case of the violation of the fundamental right
by the states or the public authorities. which in other way secure the rights of the person. Hence it is proved that
where there is rights there is remedies.

Lokpal and Lokayukta

What are Lokpal and Lokayukta?

■ The Lokpal and Lokayukta Act, 2013 provided for the establishment of Lokpal for the Union and
Lokayukta for States.
■ These institutions are statutory bodies without any constitutional status.
■ They perform the function of an "ombudsman” and inquire into allegations of corruption against certain
public functionaries and for related matters.

Why do We need such Institutions?

■ Maladministration is like a termite which slowly erodes the foundation of a nation and hinders
administration from completing its task. Corruption is the root cause of this problem.
■ Most of the anti-corruption agencies are hardly independent. Even Supreme Court has been termed CBI as
a “caged parrot” and “its master’s voice”.
■ Many of these agencies are advisory bodies without any effective powers and their advice is rarely
followed.
■ There is also the problem of internal transparency and accountability. Moreover, there is not any separate
and effective mechanism to put checks on these agencies.
■ In this context, an independent institution of Lokpal has been a landmark move in the history of Indian
polity which offered a solution to the never-ending menace of corruption.

What is the Background of their Formation?

■ In 1809, the institution of ombudsman was inaugurated officially in Sweden.
○ In the 20th century, Ombudsman as an institution developed and grew most significantly after the
Second World War.
○ New Zealand and Norway adopted this system in the year 1962 and it proved to be of great
significance in spreading the concept of the ombudsman.
■ In 1967, on the recommendations of the Whyatt Report of 1961, Great Britain adopted the institution of the
ombudsman and became the first large nation in the democratic world to have such a system.
 ○ In 1966, Guyana became the first developing nation to adopt the concept of the ombudsman.
Subsequently, it was further adopted by Mauritius, Singapore, Malaysia, and India as well.
■ In India, the concept of constitutional ombudsman was first proposed by the then law minister Ashok
Kumar Sen in parliament in the early 1960s.
○ The term Lokpal and Lokayukta were coined by Dr. L. M. Singhvi.
■ In 1966, the First Administrative Reforms Commission recommended the setting up of two independent
authorities- at the central and state level, to look into complaints against public functionaries, including
MPs.
■ In 1968, Lokpal bill was passed in Lok Sabha but lapsed with the dissolution of Lok Sabha and since then it
has lapsed in the Lok Sabha many times.
○ Till 2011 eight attempts were made to pass the Bill, but all met with failure.
○ In 2002, the Commission to Review the Working of the Constitution headed by M.N.
Venkatachaliah recommended the appointment of the Lokpal and Lokayuktas, also recommended
that the PM be kept out of the ambit of the authority.
○ In 2005, the Second Administrative Reforms Commission chaired by Veerappa Moily
recommended that the office of Lokpal should be established without delay.
■ In 2011, the government formed a Group of Ministers, chaired by Pranab Mukherjee to suggest measures to
tackle corruption and examine the proposal of a Lokpal Bill.
○ "India Against Corruption movement" led by Anna Hazare put pressure on the United Progressive
Alliance (UPA) government at the Centre and resulted in the passing of the Lokpal and
Lokayuktas Bill, 2013, in both the Houses of Parliament.
○ It received assent from President on 1 January 2014 and came into force on 16 January 2014.

What are the Key Provisions of the Lokpal and Lokayuktas (Amendment) Act, 2016?
■ It amended the Lokpal and Lokayukta Act, 2013.
■ It also amended section 44 of the 2013 Act that deals with the provision of furnishing of details of assets
and liabilities of public servants within 30 days of joining the government service.
■ It replaces the time limit of 30 days, now the public servants will make a declaration of their assets and
liabilities in the form and manner as prescribed by the government.

What is the Structure of Lokpal?

■ Lokpal is a multi-member body, that consists of one chairperson and a maximum of 8 members.
■ Chairperson of the Lokpal should be either the former Chief Justice of India or the former Judge of
Supreme Court or an eminent person with impeccable integrity and outstanding ability, having special
knowledge and expertise of minimum 25 years in the matters relating to anti-corruption policy, public
administration, vigilance, finance including insurance and banking, law and management.
■ Out of the maximum eight members, half will be judicial members and minimum 50% of the Members will
be from SC/ ST/ OBC/ Minorities and women.
■ The judicial member of the Lokpal either a former Judge of the Supreme Court or a former Chief Justice of
a High Court.
■ The non-judicial member should be an eminent person with impeccable integrity and outstanding ability,
having special knowledge and expertise of minimum 25 years in the matters relating to anti-corruption
policy, public administration, vigilance, finance including insurance and banking, law and management.
■ The term of office for Lokpal Chairman and Members is 5 years or till the age of 70 years.
■ The members are appointed by the president on the recommendation of a Selection Committee.
■ The selection committee is composed of the Prime Minister who is the Chairperson, Speaker of Lok Sabha,
Leader of Opposition in Lok Sabha, Chief Justice of India or a Judge nominated by him/her and One
eminent jurist.
■ For selecting the chairperson and the members, the selection committee constitutes a search panel of at
least eight persons.
What is the Lokpal Search Committee?
■ Under the Lokpal Act of 2013, the Department of Personnel & Training (DoPT) is supposed to put together
a list of candidates interested to be the chairperson or members of the Lokpal.
■ This list would then go to the proposed eight-member search committee, which would shortlist names and
place them before the selection panel headed by the Prime Minister.
■ The selection panel may or may not pick names suggested by the search committee.
■ In September 2018, the government had constituted a search committee headed by former Supreme Court
judge Justice Ranjana Prakash Desai.
■ The 2013 Act also provides that all states should set up the office of the Lokayukta within one year from
the commencement of the Act.

What comes under the Jurisdiction of Lokpal and its Powers?

■ Jurisdiction of Lokpal includes Prime Minister, Ministers, members of Parliament, Groups A, B, C and D
officers and officials of Central Government.
■ Jurisdiction of the Lokpal included the Prime Minister except on allegations of corruption relating to
international relations, security, the public order, atomic energy and space.
■ The Lokpal does not have jurisdiction over Ministers and MPs in the matter of anything said in Parliament
or a vote given there.
■ Its jurisdiction also includes any person who is or has been in charge (director/ manager/ secretary) of
anybody/ society set up by central act or any other body financed/ controlled by central government and
any other person involved in act of abetting, bribe giving or bribe taking.
■ The Lokpal Act mandates that all public officials should furnish the assets and liabilities of themselves as
well as their respective dependents.
■ It has the powers to superintendence over, and to give direction to CBI.
○ If Lokpal has referred a case to CBI, the investigating officer in such case cannot be transferred
without the approval of Lokpal.
■ The Inquiry Wing of the Lokpal has been vested with the powers of a civil court.
■ Lokpal has powers of confiscation of assets, proceeds, receipts and benefits arisen or procured by means of
corruption in special circumstances.
■ Lokpal has the power to recommend transfer or suspension of public servant connected with allegation of
corruption.
■ Lokpal has the power to give directions to prevent the destruction of records during the preliminary inquiry.

What are Its Limitations?

■ The institution of lokpal has tried to bring a much needed change in the battle against corruption in the
administrative structure of India but at the same time, there are loopholes and lacunae which need to be
corrected.
■ Five years have passed since the Lokpal and Lokayuktas Act 2013 was passed by parliament, but not a
single Lokpal has been appointed till date indicating the lack of political will.
○ The Lokpal act also called upon states to appoint a Lokayukta within a year of its coming to force.
But only 16 states have established the Lokayukta.
■ Lokpal is not free from political influence as the appointing committee itself consist of members from
political parties.
■ The appointment of Lokpal can be manipulated in a way as there is no criterion to decide who is an
‘eminent jurist’ or ‘a person of integrity.’
■ The 2013 act did not provide concrete immunity to the whistle blowers. The provision for initiation of
inquiry against the complainant if the accused is found innocent will only discourage people from
complaining.
■ The biggest lacuna is the exclusion of judiciary from the ambit of the Lokpal.
■ The Lokpal is not given any constitutional backing and there is no adequate provision for appeal against the
Lokpal.
■ The specific details in relation to the appointment of Lokayukta have been left completely on the States.
■ To some extent, the need for functional independence of the CBI has been catered to by a change brought
forth in the selection process of its Director, by this Act.
 ■ The complaint against corruption cannot be registered after a period of seven years from the date on which
the offence mentioned in such complaint is alleged to have been committed.

What can be the Way Forward?

■ In order to tackle the problem of corruption, the institution of the ombudsman should be strengthened both
in terms of functional autonomy and availability of manpower.
■ Greater transparency, more right to information and empowerment of citizens and citizen groups is required
along with a good leadership that is willing to subject itself to public scrutiny.
■ Appointment of Lokpal in itself is not enough. The government should address the issues based on which
people are demanding a Lokpal. Merely adding to the strength of investigative agencies will increase the
size of the government but not necessarily improve governance. The slogan adopted by the government of
“less government and more governance”, should be followed in letter and spirit.
■ Moreover, Lokpal and Lokayukta must be financially, administratively and legally independent of those
whom they are called upon to investigate and prosecute.
■ Lokpal and Lokayukta appointments must be done transparently so as to minimize the chances of the
wrong sorts of people getting in.
■ There is a need for a multiplicity of decentralized institutions with appropriate accountability mechanisms,
to avoid the concentration of too much power, in any one institution or authority.
Right to Information-

The Right to Information

Historical Background
The right to information is a fundamental right under Article 19 (1) of the Indian Constitution. In 1976, in the Raj
Narain vs the State of Uttar Pradesh case, the Supreme Court ruled that Right to information will be treated as a
fundamental right under article 19. The Supreme Court held that in Indian democracy, people are the masters and
they have the right to know about the working of the government.
Thus the government enacted the Right to Information act in 2005 which provides machinery for exercising this
fundamental right.
To know more in detail about the Constitution of India, visit the linked article.
The Right to Information Act of 2005

The act is one of the most important acts which empowers ordinary citizens to question the government and its
working. This has been widely used by citizens and media to uncover corruption, progress in government work,
expenses-related information, etc.
The primary goal of the Right to Information Act is to empower citizens, promote openness and accountability in
government operations, combat corruption, and make our democracy truly function for the people. It goes without
saying that an informed citizen is better equipped to keep a required track on governance instruments and hold the
government responsible to the governed. The Act is a significant step in informing citizens about the activities of the
government.
All constitutional authorities, agencies, owned and controlled, also those organisations which are substantially
financed by the government comes under the purview of the act. The act also mandates public authorities of union
government or state government, to provide timely response to the citizens’ request for information.
The act also imposes penalties if the authorities delay in responding to the citizen in the stipulated time.
Know more about Cultural and Educational Rights at the linked article.
What type of information can be requested through RTI?
The citizens can seek any information from the government authorities that the government can disclose to the
parliament.
Some information that can affect the sovereignty and the integrity of India is exempted from the purview of RTI.
Information relating to internal security, relations with foreign countries, intellectual property rights (IPR), cabinet
discussions are exempted from RTI.
Objectives of the RTI Act
1. Empower citizens to question the government.
2. The act promotes transparency and accountability in the working of the government.
3. The act also helps in containing corruption in the government and work for the people in a better way.
 4. The act envisages building better-informed citizens who would keep necessary vigil about the functioning
of the government machinery.
Important provisions under the Right to Information Act, 2005
● Section 2(h): Public authorities mean all authorities and bodies under the union government, state
government or local bodies. The civil societies that are substantially funded, directly or indirectly, by the
public funds also fall within the ambit of RTI.
● Section 4 1(b): Government has to maintain and proactively disclose information.
● Section 6: Prescribes a simple procedure for securing information.
● Section 7: Prescribes a time frame for providing information(s) by PIOs.
● Section 8: Only minimum information exempted from disclosure.
● Section 8 (1) mentions exemptions against furnishing information under the RTI Act.
● Section 8 (2) provides for disclosure of information exempted under the Official Secrets Act, 1923 if the
larger public interest is served.
● Section 19: Two-tier mechanism for appeal.
● Section 20: Provides penalties in case of failure to provide information on time, incorrect, incomplete or
misleading or distorted information.
● Section 23: Lower courts are barred from entertaining suits or applications. However, the writ jurisdiction
of the Supreme Court of India and high courts under Articles 32 and 226 of the Constitution remains
unaffected.
To know in detail about the other fundamental rights of the Indian Constitution, aspirants can refer to the links given
below:
Right to Equality Right to Freedom

Right to Life (Article 21) Right against Exploitation

Right to Freedom of Religion Right to Constitutional Remedies (Article 32)

Significance of the RTI Act

● The RTI Act, 2005 empowers the citizen to question the secrecy and abuse of power practised in
governance.
● It is through the information commissions at the central and state levels that access to such information is
provided.
● RTI information can be regarded as a public good, for it is relevant to the interests of citizens and is a
crucial pillar for the functioning of a transparent and vibrant democracy.
● The information obtained not only helps in making government accountable but also useful for other
purposes which would serve the overall interests of the society.
● Every year, around six million applications are filed under the RTI Act, making it the most extensively
used sunshine legislation globally.
● These applications seek information on a range of issues, from holding the government accountable for the
delivery of basic rights and entitlements to questioning the highest offices of the country.
● Using the RTI Act, people have sought information that governments would not like to reveal as it may
expose corruption, human rights violations, and wrongdoings by the state.
● The access to information about policies, decisions and actions of the government that affect the lives of
citizens is an instrument to ensure accountability.
● The Supreme Court has, in several judgments, held that the RTI is a fundamental right flowing from
Articles 19 and 21 of the Constitution, which guarantee to citizens the freedom of speech and expression
and the right to life, respectively.

Recent Amendments
● The RTI amendment Bill 2013 removes political parties from the ambit of the definition of public
authorities and hence from the purview of the RTI Act.
 ● The draft provision 2017 which provides for closure of case in case of death of applicant can lead to more
attacks on the lives of whistleblowers.
● The proposed RTI Amendment Act 2018 is aimed at giving the Centre the power to fix the tenures and
salaries of state and central information commissioners, which are statutorily protected under the RTI Act.
The move will dilute the autonomy and independence of CIC.
● The Act proposes to replace the fixed 5-year tenure with as much prescribed by the government.

Criticism of RTI Act

● One of the major set-back to the act is that poor record-keeping within the bureaucracy results in missing
files.
● There is a lack of staffing to run the information commissions.
● The supplementary laws like the Whistle Blower’s Act are diluted, this reduces the effect of RTI law.
● Since the government does not proactively publish information in the public domain as envisaged in the act
and this leads to an increase in the number of RTI applications.
● There have been reports of frivolous RTI applications and also the information obtained have been used to
blackmail the government authorities.
Other Related Links

Difference Between Fundamental Difference Between Fundamental 25 Important Supreme Court

Rights in India and the United Rights in India and the United Judgements for UPSC
States Kingdom Preparation

Types of Writs in India Constitutional Morality Article 370

List of Important Articles in Preamble of the Indian Constitution Gender Pay Parity
Indian Constitution

RTI Act – Associated Challenges

● Different types of information are sought which has 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
● RTI filed as a vindictive tool to harass or pressurize the public authority
● Because of 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.

Difference between Right to Information and Right to Privacy

The right to privacy and the right to information are both essential human rights in modern society where
technological information breach is very common. These two rights complement each other in holding governments
accountable to individuals in a majority of the cases.
Right to Information provides a fundamental right for any person to access information held by government bodies.
At the same time, the right to privacy laws grants individuals a fundamental right to control the collection of, access
to, and use of personal information about them that is held by governments and private bodies.
Right To Information Act vs Legislations for Non Disclosure of Information
● Some provisions of the Indian Evidence Act (Sections 123, 124, and 162) provide to hold the disclosure of
documents.
● Under these provisions, head of department may refuse to provide information on affairs of state
and only swearing that it is a state secret will entitle not to disclose the information.
● In a similar manner no public officer shall be compelled to disclose communications made to him
in official confidence.
● The Atomic Energy Act, 1912 provides that it shall be an offence to disclose information restricted by the
Central Government.
● The Central Civil Services Act provides a government servant not to communicate or part with any official
documents except in accordance with a general or special order of government.
● The Official Secrets Act, 1923 provides that any government official can mark a document as confidential
so as to prevent its publication.

Conclusion
● The Right to Information Act has not achieved its full objectives due to some impediments created due to
systematic failures. It was made to achieve social justice, transparency and to make an accountable
government.
● This law provides us with a priceless opportunity to redesign the processes of governance, particularly at
the grassroots level where the citizens’ interface is maximum.
● It is well recognized that the right to information is necessary, but not sufficient, to improve governance. A
lot more needs to be done to usher in accountability in governance, including protection of whistleblowers,
decentralization of power and fusion of authority with accountability at all levels.
● As observed by Delhi High Court that misuse of the RTI Act has to be appropriately dealt with; otherwise
the public would lose faith and confidence in this “sunshine Act”.

Liability of the State in Torts and Contracts

Article 298 provides that the executive power of the Union and of each State shall extend to the carrying on of any
trade or business and to the acquisition holding and disposal property and the making of contracts for any purpose.
Article 299 (I) lays down the manner of formulation of such contract. Article 299 provides that all contracts in the
exercise of the executive power of the union or of a State shall be expressed to be made by the President or by the
Governor of the State, as the case may be, and all such contracts and all assurances of property made in the exercise
of that power shall be executed on behalf of the President or the Governor by such persons and in such manner as he
may direct or authorize. Article 299 (2) makes it clear that neither the President nor the Governor Shall be
personally liable in respect of any contract or assurance made or executed for the purposes of this Constitution or for
the purposes of any enactment relating or executing any such contract or assurance on behalf of any of them be
personally liable in respect thereof. Subject to the provisions of Article 299 (1), the other provisions of the general
law of contract apply even to the Government contract.

A contract with the Government of the Union or State will be valid and binding only if the following conditions are
followed: -
1) The contract with the Government will not be binding if it is not expressed to be made in the name of the
President or the Governor, as the case may be.
2) The contract must be executed on behalf of the President or the Governor of the State as the case may be. The
word executed indicates that a contract with the Government will be valid only when it is in writing.
3) A person duly authorized by the President or the Governor of the State, as the case may be, must execute the
contract.

The above provisions of Article 299 are mandatory and the contract made in contravention thereof is void and
unenforceable.

The Supreme Court has made it clear that in the case grant of Government contract the Court should not interfere
unless substantial public interest is involved or grant is mala fide when a writ petition is filed in the High Court
challenging the award of a contract by a public authority or the State, the Court must be satisfied that there is some
element of public interest involved in entertaining such a petition.

Effect of A Valid Contract With Government

However, as Article 299 (2) provides neither the President nor the Governor shall be personally liable in respect of
any contract or assurance made or executed for the purposes of this Constitution or for the purposes of any
enactment relating to the Government of India. As soon as a contract is executed with the Government in accordance
with Article 299, the whole law of contract as contained in the Indian Contract Act comes into operations. Thus the
applications of the private law of contract in the area of public contracts may result in the cases of injustice.

A contract of service with the Governments not covered by Article 299 of the Constitution. After a person is taken in
a service under the Government, his rights and obligations are governed by the statutory rules framed by the
Government and not by the contract of the parties.

Service contracts with the Government do not come within the scope of Article 299. They are subject to “pleasure”.
They are not contracts in usual sense of the term as they can be determined at will despite an express condition to
the contrary.

In India the remedy for the branch of a contract with Government is simply a suit for damages. The writ of
mandamus could not be issued for the enforcement of contractual obligations. But the Supreme Court in its
pronouncement in Gujarat State Financial Corporation v. Lotus Hotels, has taken a new stand and held that the writ
of mandamus can be issued against the Government or its instrumentality for the enforcement of contractual
obligations. The Court ruled that it is too late to contend today the Government can commit branch of a solemn
undertaking on which other side has acted and then contend that the party suffering by the branch of contract may
sue for damages and cannot compel specific performance of the contract through mandamus.

The doctrine of judicial review has extended to the contracts entered into by the State of its instrumentality with any
person. Before the case of Ramana Dayaram Shetty v. International Airport Authority. The attitude of the Court was
in favor of the view that the Government has freedom to deal with any one it chooses and if one person is chosen
rather than another, the aggrieved party cannot claim the protection of article 14 because the choice of the person to
fulfill a particular contract must be left to the Government, However, there has been significant change in the
Court’s attitude after the case of Ramana Dayaram Shetty. The attitude for the Court appears to be in favor of the
view that the Government does not enjoy absolute discretion to enter into contract with any one it likes. They are
bound to act reasonably fairly and in non-discriminatory manner.
In the case of Kasturi Lal v. State of J&K, in this case Justice Bhagwati has said “Every activity of the Government
has a public element in it and it must, therefore, be informed with reason and guided by public interest. Every
government cannot act arbitrarily without reason and if it does, its action would be liable to be invalidated.” Non-
arbitrariness, fairness in action and due consideration of legitimate expectation of affected party are essential
requisites for a valid state action. In a recent case Tata Cellular v. Union of India, the Supreme Court has held that
the right to refuse the lowest or any other tender is always available to the Government but the principles laid down
in Article 14 of the Constitution have to be kept in view while accepting or refusing a tender. There can be no
question of infringement of Article 14 if the Government tries to get the best person or the best quotation. The right
to choose cannot be considered to be an arbitrary power. Of course, if the said power is exercised fro any collateral
purpose the exercise of that power will be struck down.

Ratification
The present position is that the contract made in contravention of the provisions of Article 299 (1) shall be void and
therefore cannot be ratified.

The Supreme Court has made it clear that the provisions of Article 299 (1) are mandatory and therefore the contract
made in contravention thereof is void and therefore cannot be ratified and cannot be enforced even by invoking the
doctrine of Estoppel. In such condition the question of estoppel does not arise. The part to such contract cannot be
estoppel from questioning the validity of the contract because there cannot be estoppel against the mandatory
requirement of Article 299.
The Government cannot exercise its power arbitrarily or capriciously or in an unprincipled manner. In this case
Justice Bhagwati has said “ Every activity of the Government has a public element in it and it must therefore, be
informed with reason and guided by public interest: Government cannot act arbitrarily and without reason and if it
does, its action due consideration of legitimate expectation of affected party are Court has held that the right to
refuse the lowest or any other tender is always available to the Government but the principles laid down in article 14
of the Constitution have to be kept in view while accepting or refusing a tender. The right to choose cannot be
considered to be an arbitrary power. Of Course, if the said power is exercised for any collateral purpose the exercise
of that power will be struck down.”

In the case of Shrilekha Vidyarathi v. State of U.P (1991 S.C .C 212) the Supreme Court has made it clear that the
State has to act justly, fairly and reasonably even in contractual field. In the case of contractual actions of the State
the public element is always present so as to attract article 14. State acts for public good and in public interest and its
public character does not change merely because the statutory or contractual rights are also available to the other
party. The court has held that the state action is public in nature and therefore it is open to the judicial review even if
it pertains to the contractual field. Thus the contractual action of the state may be questioned as arbitrary in
proceedings under Article 32 or 226 of the Constitution. It is to be noted that the provisions of Sections 73, 74 and
75 of the Indian Contract Act dealing with the determination of the quantum of damages in the case of breach of
contract also applies in the case of Government contract.

Quasi-Contractual Liability
According to section 70 where a person lawfully does anything for another person or delivers anything to him such
other person enjoys the benefit thereof, the latter is bound to make compensation to the former in respect of or to
restore, the thing so done or delivered. If the requirements of Section 70 of the Indian Contract act are fulfilled, even
the Government will be liable to pay compensation for the work actually done or services rendered by the State.

Section 70 is not based on any subsisting contract between the parties but is based on quasi-contract or restitution.
Section 70 enables a person who actually supplies goods or renders some services not intending to do gratuitously,
to claim compensation from the person who enjoys the benefit of the supply made or services rendered. It is a
liability, which arise on equitable grounds even though express agreement or contract may not be proved.

Section 65 of the Indian Contract Act, 1872

If the agreement with the Government is void as the requirement of Article 299 (1) have not been complied, the
party receiving the advantage under such agreement is bound to restore it or to make compensation for it to the
person form whom he has received it. Thus if a contractor enters into agreement with the Government for the
construction of go down and received payment therefore and the agreement is found to be void as the requirements
of Article 299 (1) have not been complied with, the Government can recover the amount advanced to the contractor
under Section 65 of the Indian Contract act. Action 65 provides that when an agreement is discovered to be void or
when a contract becomes void, any person who has received any advantage under such agreement or contract is
bound to restore it to make compensation for it to the person from whom he received it.

Suit Against State In Torts

Before discussing tortuous liability, it will be desirable to know the meaning of ‘tort’. A tort is a civil wrong arising
out of breach of a civil duty or breach of non-contractual obligation. The word ‘tort’ has been defined in Chambers
Dictionary in the following words:-
“Tort is any wrong or injury not arising out of contact for which there is remedy by compensation or damages.”

Thus, tort is a civil wrong, which arises either out of breach of no contractual obligation or out of a breach of civil
duty. In other words, tort is a civil wrong the only remedy for which is damages. The essential requirement for the
arising of the tort is the beach of duty towards people in general. Although tort is a civil wrong, yet it would be
wrong to think that all civil wrongs are torts. A civil wrong which arises out for the breach of contact cannot be put
in the category of tort as it is different from a civil wrong arising out of the breach of duty towards public in general.
Liability For Torts
In India immunity of the Government for the tortious acts of its servants, based on the remnants of old feudalistic
notion that the king cannot be sued I his own courts without his consent ever existed. The doctrine of sovereign
immunity, a common law rule, which existed in England, also found place in the United States before 1946 Mr.
Justice Holmes in 1907 declared for a unanimous Supreme Court:
“A sovereign is exempt from suit not because of any formal conception or obsolete theory, but on the logical and
practical ground that there can be no legal right as against the authority that makes the law on which the right
depends.”

Today, hardly, anyone agrees that the stated ground for exempting the sovereign from suit is either logical or
practical.

Vicarious Liability of the State

When the responsibility of the act of one person falls on another person, it is called vicarious liability. Such type of
liabilities is very common. For example, when the servant of a person harms another person through his act, we held
the servant as well as his master liable for the act done by the servant.

Here what we mean is essentially the vicarious liability of the State for the torts committed by its servants in the
exercise of their duty. The State would of course not be liable if the acts done were necessary for protection life or
property. Acts such as judicial or quasi-judicial decisions done in good faith would not invite any liability. There are
specific statutory provisions which the administrative authorities from liability. Such protection, however, would not
extent malicious act. The burden of proving that an act was malicious would lie on the person who assails the
administrative action. The principles of law of torts would apply in the determination of what is a tort and all the
defences available to the respondent in a suit for tort would be available to the public servant also. If after all this, a
public servant is proved to have been guilty of a tort like negligence, should the State, as his employer is liable?

In India Article 300 declares that the Government of India or a of a State may be sued for the tortious acts of its
servants in the same manner as the Dominion of India and the corresponding provinces could have been sued or
have been sued before the commencement of the present Constitution. This rule is, however, subject to any such law
made by the Parliament or the State Legislature.

Case Law on the tortious liability of the State

The first important case involving the tortious liability of the Secretary of State for India-in –Council was raised in P
and O. Steam Navigation v. Secretary of State for India.

The question referred to the Supreme Court was whether the Secretary of State for India is liable for the damages
caused by the negligence of the servants in the service of the Government. The Supreme Court delivered a very
learned judgment through Chief Justice Peacock, and answered the question in the affirmative. The Court pointed
out the principle of law that the Secretary of State for India in Council is liable for the damages occasioned by the
negligence of Government servants, if the negligence is such as would render an ordinary employer liable.
According to the principle laid down in this case the Secretary of State can be liable only for acts of non sovereign
nature, liability will not accrue for sovereign acts Chief Justice peacock admitted the distinction between the
sovereign and non sovereign functions of the government and said:
“There is a great and clear distinction between acts done in exercise of what are termed sovereign powers, and acts
done in the conduct of undertakings which might be carried on by private individuals without having such powers
delegated to them.”

But the judgment of P. and O. Steam Navigation case, was differently interpreted in Secretary of State v. Hari
Bhanji, In this case it was held that if claims do not arise out of acts of State, the civil Courts could entertain them.

The conflicting position before the commencement of the Constitution has been set at rest in the well known
judgment of the Supreme Court in State of Rajasthan v. Vidyawati, where the driver of a jeep, owned and
maintained by the State of Rajasthan for the official use of the Collector of the district, drove it rashly and
negligently while taking it back from the workshop to the residence of the Collector after repairs, and knocked down
a pedestrian and fatally injured him. The State was sued for damages. The Supreme Court held that the State was
vicariously liable for damages caused by the negligence of the driver. In fact, the decision of the Supreme Court in
State of Rajasthan v. Vidyawati, Kesoram Poddar v. Secretary of State for India, introduces an important
qualification on the State immunity in tort based on the doctrines of sovereign and non-sovereign functions. It
decided that the immunity for State action can only be claimed if the act in question was done in the course of the
exercise of sovereign functions.

Then came the important case of Kasturi Lal v. State of U. P. where the Government was not held liable for the tort
committed by its servant because the tort was said to have been committed by him in the course of the discharge of
statutory duties. The statutory functions imposed on the employee were referable to and ultimately based on the
delegation of the sovereign powers of the State.

The Court held that the Government was not liable as the activity involved was a sovereign activity. The Court
affirmed the distinction between sovereign and non-sovereign function drawn in the P. and O. Steam Navigation’s
case in the following terms.

The Supreme Court’s judgment unambiguously indicates that the Court itself on the question of justice felt strongly
that Kashturi lal should be compensated yet, as a matter of law they held that he could not be.
There are, on the other hand, a good number of cases where the courts, although have maintained the distinction
between sovereign and non- sovereign functions yet in practice have transformed their attitude holding most of the
functions of the government as non-sovereign. Consequently there has been an expansion in the area of
governmental liability in torts.

Sovereign And Non-Sovereign Dichotomy Changed Judicial Attitude

It is redeeming to note that the sovereign and non-sovereign dichotomy in the State functions which the Supreme
Court has followed so far, is no being narrowed down by a new gloss over the sovereign functions of the State The
courts started holding most of the governmental functions as non-sovereign with a result that the area of tortious
liability of the government expanded considerably.

The Madhya Pradesh High Court Has put up the entire legal position, which emerged from the analysis of the cases,
in the following words:
“These cases show that the traditional sovereign functions are the making of law, the administration of justice, the
maintenance of order, the repression of crime, carrying on for war, the making of treaties of peace an other
consequential functions, Whether this list be exhaustive or not, it is at least clear that the socio-economic and
welfare activities undertaken by a modern state are not included in the traditional sovereign functions.

Damages
It may happen that a public servant may be negligent in the exercise of his duty. It may, however, be difficult to
recover compensation from him. From the point of view of the aggrieved person, compensation is more important
than punishment. Therefore, like all other employers the State must be made vicariously liable for the wrongful acts
of its servants.

The Courts in India are now becoming conscious about increasing cases of excesses and negligence on the part of
the administration resulting in the negation of the personal liberty. Hence they are coming forward with the
pronouncements holding the Government liable for damages even in those cases where the plea of sovereign
function could have negative the governmental liability. One such pronouncement came in the case of Rudal Shah v.
State of Bihar. Here the petitioner was detained illegally in the prison for over fourteen years after his acquittal in a
full dressed trail. The court awarded Rs. 30,000 as damages so the petitioner.

In Bhim Singh v. State of J&K, where the petitioner, a member of legislative Assembly was arrested while he was
on his way to Srinagar to attend Legislative Assembly in gross violation of his constitutional rights under Articles 21
and 22 (2) of the Constitution, the court awarded monetary compensation of Rs.50,000 by way of exemplary costs to
the petitioner.
Another landmark case namely, C.Ramkonda Reddy v. State, has been decided by the Andhra Pradesh, in which
State plea of sovereign function was turned down and damages were awarded despite its being a cases of exercise of
sovereign function.

In Saheli a Women’s Resource Center v. Commissioner of Police, Delhi, where the death of nine years old boy took
place on account of unwarranted atrocious beating and assault by a Police officer in New Delhi, the State
Government was directed by the court to.

In Lucknow Development Authority v. M.K. Gupta, the Supreme Court has observed that where public servant by
mal fide, oppressive and capricious acts in discharging official duty causes in justice, harassment and agony to
common man and renders the State or its instrumentality liable to pay damages to the person aggrieved from public
fund, the State or its instrumentality is duly bound to recover the amount of compensation so paid from the public
servant concerned.

The Court very correctly analyses the entire position of sovereign liability in India and observed:
“The immunity peculiar to English system found its way in our system of governance through run of judgments
rendered during British period, more particularly after 1858, even though the maxim lex non protest peccary that is
the king can do no wrong had no place in ancient India or in medieval India as the king in both the periods subjected
themselves to the rule of law and system of justice prevalent like the ordinary subjects of the States. According to
Monu, it was the duty of the king to uphold the law and he was as much subject to the law as any other person. it
was said by Brihaspati, where a servant commissioned by his master does an improper, for the benefit of his master,
the latter shall be held responsible for it. Even during the Muslim rule the fundamental concept under Muslim law
like Hindu law was that the authority of king was subordinate to that of the laws. It was no different during British
rule. The courts leaned in favor of holding the State responsible for the negligence of its officers.”

Liability of The Public Servant

Liability of the State must be distinguished from the liability of the individual officers of the State. So far as the
liability of the individual officers is concerned, if they have acted outside the scope of their powers or have acted
illegally, they are liable to the same extent as any other private citizen would be. The ordinary law of contact or torts
or criminal law governs that liability. An officer acting in discharge of his duty without bias or mal fides could not
be held personally liable for the loss caused to the other person However such acts have to be done in pursuance of
his official duty and they must not be ultra vires his powers. If an official acts outside the scope of his powers, he
should be liable in civil law to the same extent as a private individual would be. Where a public servant is required
to be protected for acts done in the course of his duty, special statutory provisions are made for protecting them from
liability.

Public Accountability
Major developments in the area of public accountability have taken place. In the absence of public accountability
today, corruption is a low-risk and high- profit business. The Classical observation of the Supreme Court in D.D.A
v. Skipper Constructions deserves special attention.

The court observed.

“Some persons in the upper strata (which means the rich and the influential class of the society) have made the
‘property career’ the sole aim of their life. The means have become irrelevant in a land where its greatest son born in
this country said, “Means are more important than the ends.”

A sense of bravado prevails; everything can be managed; every authority and every institution can be managed...
They have developed utter disregard for law may, contempt for it.
In order to strengthen the concept of public accountability the court in Common Cause. A Registered Society (Petrol
Pumps Matter) v. Union of India held that it is high time that public servants should be held personally liable for
their functions as public servants.

Thus, for abusing the process of court public servant was held responsible and liable to pay the cost out of his own
pocket.
The principle thus developed is that a public servant dealing with public property in oppressive, arbitrary or
unconstitutional manner would be liable to pay exemplary damages as compensation to the government, which is
‘by the people.

In Lucknow Development Authority v M. K. Gupta, the Court asked as to who should pay the compensation for the
harassment and agony to the victim? For acts and omissions causing loss or injury to the subject, the public authority
must compensate. Where, however, the suffering was due to mal fide or capricious act of public servant, such a
public servant would be made to pay for it. Although the Court spoke in connection with the Consumer Protection
Act, if this principle is to be extended to liability for wrongful acts in general, it would doubtless provide an
effective deterrent against mal fide and capricious acts of public servants. RM Sahai J observed.
“The administrative law of accountability of public authorities for their arbitrary and even ultra vires actions has
taken many strides. It is now accepted both by this Court and English courts that the State is liable to compensate for
loss or injury suffered by a citizen die to arbitrary actions of its employees.”

Having stated this, the learned Judge stopped to consider who would pay such compensation. Such compensation
would of course be paid from the public treasury, which would burden the taxpayer. He, therefore further ordered
that when a complaint was entitled to compensation, because of the suffering caused by a mal fide or oppressive or
capricious act of a public servant, the Commission under the Consumer Protection Act should direct the department
concerned to pay such compensation from the public fund immediately but to recover the same from those who are
responsible for such unpardonable behavior by dividing it proportionately among them when they were more than
one.

Where a married woman was detained on the pretext of her being a victim of abduction and rape, and the police
officers threatened her and commanded her to implicate her husband and his family in a case of abduction and
forcible marriage, the Court directed the State government to launch prosecution against the police officers
concerned and to pay compensation to the woman and her family members who were tortured.
Where high ranking officials of a public authority, the Delhi Development Authority were held guilty of
irregularities such as giving possession of lands sold in auction to the respondent bidder before receiving the auction
amount in full, thus causing loss to the public and the guilt was established in an inquiry conducted by Justice
(retired) O Chinappa Reddy, the Supreme Court directed the government to hold a departmental enquiry against
such official. Where indiscriminate admissions were given in an educational institution in branch of eligible
conditions, the Court ordered the government to take penal action against the person responsible for such admission.
The head of the department is accountable to the court for carrying out he orders of the court. Personal costs may be
awarded against the officer who fails to act in compliance with the court’s order.

In recent years, the Supreme Court has also imposed personal fines and liabilities on ministers who used their
discretionary powers on ulterior considerations. Where a minister allotted petrol pumps to his favorites or where a
minister gave out of turn allotment of houses to persons related to her or known to her in preference to those who
deserved such accommodation. The Court not only quashed the allotments but also imposed exemplary damages for
having denied that largesse to the deserving people. Personal liability for abuse of power is a recent phenomenon.

The Court further observed:

“In modern sense the distinction between sovereign and non-sovereign power does not exist. It all depends on the
nature of power and manner of its exercise. Legislative supremacy under the Constitution arises out of
Constitutional provisions. Similarly the executive is free to implement and administer the law. One of the tests to
determine if the legislative or executive functions sovereign in nature is whether the State is answerable for such
actions in courts of law, for instance, acts such as defense of the country, raising armed forces and maintain it,
making peace or war, foreign-affairs, power external sovereignty and are political in nature. Therefore, they are not
amenable to the jurisdiction of ordinary civil court. The State is immune from being sued as the jurisdiction of the
courts in such matters is impliedly barred.”

But there the immunity ends. No civilized system can permit an executive to play with the people of its country and
claim that it is entitled to act in any manner, as it is sovereign. No legal or political system today can place the State
above law, as it is unjust and unfair for a citizen to be deprived of his property illegally by the negligent act of
officers of State. The modern social thinking and judicial approach is to do away with archaic State protection and
place the State or the Government at par with other juristic legal entity. Any watertight compartmentalization of the
functions of the State as sovereign or non-sovereign is not sound. It is contrary to modern jurisprudence. But with
the conceptual change of statutory power being statutory duty for sake of society and the people, the claim of a
common man cannot be thrown out merely because it was done by an officer of the State official and the rights of
the citizen are require to be reconciled so that the rule of law in a welfare State is not shaken.

It is unfortunate that no legislation has been enacted to lay down the law to torts in India. For that law, our courts
have to draw from the English common law. Since the law of contract and the law of Sale of Goods and now the law
of consumer protection have been enacted, it is high time that our Parliament enacts a law and thereby comes out of
the legislative inertia.. The law in India on State liability has developed in the last two decades through judicial
process. It has made the State liable for the torts of its servants. The courts have, however, developed such a law
without expressly overruling some of the earlier decision, which defined the State liability in very narrow terms.

While the State has enacted various anti-pollution laws and the laws for the protection of the consumers, which
provide quick remedies to the citizens, there is yet no sincere and strict implementation of such laws. The industry
has often shown inadequate regard fro provisions requiring installation of hazard preventing devices as required by
the anti pollution laws. This became clear in MC Mehta v. Union of India. The State can be compelled to perform its
statutory duties though a writ of mandamus, but will the State be liable to pay compensation to those who suffer
because of its negligence or failure to obtain compliance of the industries to the provisions of the anti-pollution
laws?

In recent years, the courts have awarded compensation in a number of situations. Compensation was awarded for
police brutalities committed on policemen People Union for Democratic Rights v. Police Commissioner to victims
of negligence by medical personnel in an eye camp resulting in irreversible damage to the eyes of patients, A.S
Mittal v. State of U. P., and to victims of road accidental President Union of India v. Sadashiv and to victims of
environmental pollution. The plea of sovereign immunity has been rejected by courts time an again. Pushpinder
Kaur v. Corporal Sharma. Besides these, the courts have awarded excreta payment and costs of public interest
litigating to those who spearheaded it.The Supreme Court has held that where essential governmental functions were
concerned, loss or injury occurring to any person due to failure of the government to discharge them would make it
liable for compensation. Such compensation would be paid even if the plaintiff does not prove negligence on the
part of an authority.

In Nilbati Behera v. State of Orissa, the Supreme Court held that the awards of compensation in the public law
proceedings were different from the awards in the tort cases. In a civil suit for tortuous liability, whether the State
was liable was an issue to be decided by taking evidence. The petitioner had to prove that the respondent was guilty
of negligence and he suffered as a result of that. In a writ petition, the fact that a fundamental right had been violated
was enough to entitle a person to compensation. Further, compensation in writ proceedings is symbolic and is not
based on the quantification of the actual loss suffered by the petitioner.

Under the Consumer Protection Act, 1986, informal grievance redressal machinery has been provided. . Although
consumer courts do not award damages for the civil wrongs, they have provided compensation to the consumer
against unfair trade practice, deficient or negligent service or faulty goods. The consumer courts have not spared
even government agencies. The Life Insurance Corporation, the nationalized banks, government hospitals have been
made to pay compensation. Such actions of the consumer courts, however, do not deprive the consumer of his right
to file a suit for tort in a civil court.

Conclusion
Thus, at last I would like to conclude that every activity of the Government has a public element in it and it must
therefore, be informed with reason and guided by public interest: Government cannot act arbitrarily and without
reason and if it does, its action due consideration of legitimate expectation of affected party are Court has held that
the right to refuse the lowest or any other tender is always available to the Government but the principles laid down
in article 14 of the Constitution have to be kept in view while accepting or refusing a tender. The right to choose
cannot be considered to be an arbitrary power. Of Course, if the said power is exercised for any collateral purpose
the exercise of that power will be struck down.

Rule of Promissory Estoppels

The Doctrine of Promissory Estoppel works on the principle of equity, fairness and moral conscience. The doctrine
of Promissory Estoppel means when an individual with an intention of forming a relationship which is lawful makes
a clear promise to another individual and the latter individual acts on it, that promise becomes an obligation for the
individual who made the promise. Hence, then going back from its words is not permissible. Going back from the
words will be in contradiction of equity. Just in order to pull the applicability of the doctrine of promissory estoppel
it is not important for the promisee to suffer any damage while acting on dependence of the promise. The most
important thing is that the promisee must have changed the position in dependence on the assurance. The arena of
this doctrine is vague but the law commission recommended suggestions to form a new section as Section 25A in
the Indian Contract Act in the 108th report. No provisions as such are there which ensures availability of relief under
this doctrine but at the same time it can be implemented on the basis of equity, to defend the aggrieved party. The
doctrine of estoppel in India is a rule of evidence included into Section 115 of The Indian Evidence Act, 1872. The
sections says “When an individual has, by his declaration, act or omission, intentionally prompted or accredited
every other individual to accept as true with this type of element to be real and to act upon such notion, neither that
individual nor his consultant would be allowed, in any shape or proceeding among himself and such individual or
his representative, to disclaim the reality of that issue.” Promissory estoppel is related to future promises whereas
Section 115 talks about representations regarding existing facts. Promissory Estoppel’s application can invalidate
the constitutional provision provided under Article 299, which talks about immunity granted against the personal
accountability of an individual making the promise. Promissory Estoppel is known by various names like –
Equitable Estoppel, Quasi Estoppel and New Estoppel. The accurate principle is thus when one party makes a clear
promise to the other party by his words with an intention of forming a lawful relationship, knowing that the other
party to whom the promise is made may act upon it and in fact acted upon by the other party on dependence of the
assurance, the promise becomes an obligation and hence the party who made the promise cannot go back from his
words. As this would be the root cause of injustice to the promise as well as unfair to the other party.

Promissory Estoppel: Explained

Promissory estoppel is a moderately new advancement. To follow the development of teaching in England, we have
to allude to a portion of the English choices. The early cases did not talk about this tenet as estoppel. They discussed
it as ‘raising equity’. Lord Cairns expressed the regulation in its most punctual structure in the accompanying words
in Hughes v. Metropolitan Railway Company.
“It is the main rule whereupon all courts of equity continue, that if parties who have gone into clear and
unmistakable terms which includes certain lawful outcomes for a short time later by their own demonstration or with
their own consent enter upon a course of exchange which has the impact of driving one of the parties to assume that
the severe rights emerging under the agreement won’t be enforced, or will be kept in anticipation, or held in hold,
the individual who generally may have enforced those rights won’t be permitted to uphold them where it would be
inequitable having respect to the dealings which have along these lines occurred between the parties.”

The doctrine of Promissory Estoppel was also based on obiter dicta of Justice Denning in Central London Property
Trust Ltd vs. High trees House Ltd wherein the court ruled that after promising to reduce the rent of flats and then
again increasing it, would affect the intended legal obligations of the parties. It was also held in Combes vs Combes
that where one party by his words or conduct made an offer to another party to which any promise and assurance
was intended to affect relations between them and to be acted upon accordingly, then one party has taken him on his
word and then acted upon it.
Under English Law, the principle and rule has been applied in the case of explicit and not an unequivocal promise
where one party, without a new consideration, makes a deal to avoid implementing his rights, since it is inequitable
for the promisor to backpedal on such guarantee since the promisee probably adjusted his position independence of
the guarantee made, which need not really be inconvenient.
The promisor can resile from his guarantee on giving reasonable notice, which may not be formal, giving the
promisee a reasonable chance of continuing his position. The promise would move toward becoming last and
irreversible if the promisee can’t continue his position, Promissory estoppel serves to suspend and not entirely
quench the current obligation, The rule applies not exclusively to the contractual relationship, yet additionally to
statutory rights, or to a connection between neighbouring landowners.
Evolution of the doctrine of promissory estoppel
Estoppel talks about rules of equity, fairness and justice. And in recent years that rule expanded its dimensions. One
of the classifications of estoppel was Promissory Estoppel that was acknowledged by courts in the country. In 1880,
the concept of Promissory Estoppel was originated in the Indian Law System through Ganges Manufacturing Co. V.
Soorajmull, when Calcutta High Court upheld that a promise without consideration was enforceable merely on the
basis of interest and reliance. In 1892, judgement of Calcutta High Court was not followed as Madras High Court
dismissed the basis of interest and reliance and returned back to the traditional approach that consideration is
necessary in Schoulank V. Mulhunaryan and examined the application of estoppel under provisions of Indian
Evidence Act. During the developing period, the promisee cannot appeal the doctrine of promissory estoppel unless
any damage was suffered by the party. One thing that is mandatory is the other party’s reliance on the promise and
acting upon the assurance given by the promisor. The only crucial requirement of this doctrine is the change of
position by the party. The doctrine of promissory estoppel found its complete explanation in the case of Union of
India V. Anglo Afghan Agencies. Earlier promissory estoppel was never applied against the government. But with
time, this case changed the position. To uplift export of woollen garments to Afghanistan, the government made a
declaration about specific modifications regarding the import of specific raw materials. But later, only limited
modifications were permitted, not all modifications as promised were permitted. The government was held liable by
the Supreme Court as they were stopped by its promise. So, the promissory estoppel was applied against the
Government by the courts. The doctrine of promissory estoppel was fully accepted in India devoid of notion of
consideration and made it familiar as a reason of action to the parties to whom the promise was made.

Fundamental components of promissory estoppel

Following five components existence are very much crucial for the doctrine to be enforced properly-
● Lawful Relationship: There must be an existence of a lawful relationship or a relationship anticipated to
exist between the two parties.
● Assurance: It must be clearly displayed that a promise was made between the two parties which ultimately
led the aggrieved party to presume that some kind of action needs to be taken. Such a promise must be
reasonable and reliable.
● Reliance: Aggrieved party’s reliance on the promise made must be displayed clearly and because of which
the aggrieved party took some action.
● Damage: The aggrieved party who relied upon the promise made by the other party must suffer some sort
of damage or loss which ultimately lands the other party in the worst position.
● Unconscionability: It must be clearly demonstrated that it was unjust for the promisor to break the promise.
If all of the above-mentioned components are present then most of the courts will apply the doctrine to the situation.
Though, some courts may still apply the doctrine only if the situations that precisely give rise to the concept. And
such an example of the precise situation is the one regarding real property.

Promissory Estoppel in India

Sometime before the doctrine of promissory estoppel was defined, the Calcutta High Court perceived that the
principle of estoppel was not kept distinctly to the law of evidence, however, that an individual might be estopped
from doing acts or depending on specific contentions or contention. In a later case, the Bombay High Court
empowered the municipality to oppose the case of the Secretary of State to be launched out starting from the earliest
stage the municipality had levelled, and raised versatile claims, in the conviction that they had a flat outright which
should not be turned out except if other reasonable ground was outfitted, a conviction which was preferable to a
desire made by the administrative authority which the legislature realized that the municipality would act upon.
Much later, the Supreme Court connected the standard (with one judge really utilizing the term promissory estoppel)
to block the administration from evaluating land income in connection to a market site, when it had prior settled not
to charge any lease on business sectors for business sectors would resemble other open buildings.
The court in UOI vs Anglo Afghan Agencies ruled that the doctrine of promissory estoppel discovered its most
articulate exposition. For this situation, the writ-applicant had depended on the fare advancement plot issued by the
Central Government which had sent out woollen products, and after that guaranteed the import qualification
authentication for the full an incentive under the plan. The solicitor put together its case with respect to dependence,
and the administration argued official need.
The Supreme Court negatived the protection of official need, and brought up that it didn’t discharge the legislature
from its commitment to respect the guarantee made by it, if the native acting in dependence on the guarantee, had
adjusted his position, and that as well, despite that the guarantee was not recorded in the structure required by article
299 of the Constitution.
Afterwards, in Century spinning and manufacturing Co Ltd vs Ulhasnagar Municipality, the doctrine was connected
to implement a guarantee of exception from the instalment of octroi obligation given by a metropolitan organisation.
The court drew the refinement between the portrayal of the current actuality and description that something would
be done in future was spelt out, and it was thus carefully observed.
At last, in, the Supreme Court managed the doctrine of promissory estoppel at the incredible length and held that it
afforded a reason for the activity. For this situation in Motilal Padampat Sugar Mills vs. State of UP, wherein the
Government of Uttar Pradesh proclaimed a plan exempting all new modern units from deals charge for a long time
in the paper. The appealing party sugar organisation got the portrayal affirmed from the Secretary, Industries
Department, the Director of Industries, and the Chief Secretary, expressing that in perspective on the business
charge exception declared by the administration, is expected to set up a hydrogenation plant for vanaspati.
It was held that the all-out portrayal contained in the letters for the benefit of the Government of Uttar Pradesh,
based on which the appealing party acquired cash from money related organizations and set up a plant, conjured the
doctrine of promissory estoppel and the administration will undoubtedly complete the portrayal and excluded the
litigant from the instalment of offers charge in regard to produced merchandise for a time of three years.
The Supreme Court has seen that the doctrine of promissory estoppel is a guideline developed by value to keep away
from foul play, and however generally named promissory estoppel, it is neither in the domain of agreement nor in
the realm of estoppel, yet it is a doctrine advanced by value so as to avert lousy form where guarantee is made by an
individual realizing that it would be followed up on by the individual to whom it is made and in actuality it is so
followed up on and it is inequitable to permit the gathering making the guarantee to return upon it.

Applicability of Promissory Estoppel in India

On account of Motilal Padampat Sugar Mills the Supreme Court, after a review of Indian, English and American
cases, held that:
● The rule can outfit a reason for the activity.
● The pertinence of the doctrine isn’t limited to parties as of now authoritatively bound to each other or
having a prior legitimate relationship.
● The doctrine did not depend on estoppel, nor can its task be shackled by consideration. It isn’t essential to
demonstrate any consideration for the materialism of the doctrine of promissory estoppel.
● The rule would be connected where the actualities are with the end goal that foul play can stay away from
just by the requirement of guarantee.
● It is unimportant if no hindrance is appeared to have been caused, it is sufficient if there is a difference in
position.
● The state isn’t resistant from obligation for promissory estoppel and it can’t depend on the doctrine of
official need not to shackle its future official activity. It might be connected against the state, even in its
legislative or open or sovereign limit, if its application is essential to avert extortion or show unfairness.
The official authority is no safeguard.
● The doctrine of promissory estoppel must respect value when required, yet it isn’t sufficient to state that
open intrigue will endure. It will be for the court to choose if the administration indicates reasons.
● There is no promissory estoppel against the state in its authoritative limit.
● The certainty that the guarantee isn’t as a formal contract required by workmanship 299 of the Constitution
won’t influence the materialism of the doctrine.

Promissory Estoppel in a contractual relationship

The rule of promissory estoppel applies, when it does, just without a finished up contract. It couldn’t be conjured
where a particular term in the agreement engaged a bank to end the advance agreement or the organization dropped
the permit to run pay phones on expiry of the term or where the court would not expand the mining permit past the
concurred time of a half year or wherein regard of office understandings for working pay telephones, rate of
commission was decreased and the measure of security store upgraded, and the understanding gave such powers to
the phone division.
The rule has been connected to force of the civil law to execute a rent deed, where ensuing upon a correspondence
from the load up about distribution, the solicitor had spent sums on getting water and power associations and set up
development on the plot or to avoid the power load up from pulling back the refund guaranteed, despite the fact that
the standard concurrence with the power shopper explicitly given that the buyers will pay such rates as might be
updated by the Board every once in a while.
The rule has been additionally connected to keep town or lodging advancement experts from making changes to
plans of portions or to the singular distribution of plots or houses or to force such specialists to allocate or hand over
plots or houses or even to keep such specialists from making changes in assignments by amending their policies. It
has likewise been connected to implement guarantees of monetary foundations to give fund or advances.

Applicability of doctrine on public and private entities

In the case, the court observed,Public bodies are as much bound as private individual to complete portrayals of
certainties and guarantees made by them, depending on which different people have adjusted their situation to their
preference, in this way declining to make a refinement between the private individual and a public body as respects
the utilization of the doctrine of promissory estoppel. It was recommended that the commitment could emerge as
legal action, and if the law requires the agreement to be in a specific structure, it could be authorised in equity.
The case after examining the doctrine of promissory estoppel by and large, chose to what degree the doctrine was
pertinent against the administration. The judgment nonetheless, insinuates the utilisation of the doctrine to private
gatherings observing.
It is valid that promissory estoppel can’t be summoned to urge the administration or even a private gathering to
complete a demonstration denied by law or promissory estoppel can’t be conjured to constrain the legislature or
even a private gathering to complete a demonstration restricted by law and keeping in mind that it alludes with
endorsement to the perceptions in 41 public bodies or the State is as much bound as private people to complete
commitments brought about by them.
In all the Indian cases alluded over, the portrayals comprising the guarantees were made by or for the benefit of the
state or public bodies. The doctrine has from there on created in India for the most part in the field of authoritative
law.
The primary issue for the situation concerned the applicability of the doctrine to the legislature in its different
capacities, and the court continued to choose the equivalent after choosing the extent of the doctrine. There is no
case explicitly applying the doctrine between private parties. Except for a lone perception that the rule has been held
pertinent to managerial law and not between private parties, there is no perception blocking the utilisation of the rule
between private gatherings (not government or public bodies). Nor has the Supreme Court constrained the utilisation
of the doctrine while detailing it.
It is along these lines presented that the doctrine as propounded for the situation applies with equivalent power to
guarantees and obligations made and created by people other than the legislature or public bodies.

Exceptions to the doctrine

Some immunities and limitations have been given wherein the doctrine of promissory estoppel would not apply.
Some of the exceptions of the Doctrine of promissory estoppels are as follows.
● The doctrine must respect equity when required. The promise may not be upheld against the administration
if it is biased to expect the legislature to remember. On the off chance that the administration fights that
public intrigue would endure by requirement, the legislature should demonstrate the realities and conditions
to the court, and it would be for the court to choose whether those would render it unjust to uphold risk
against the government.
● Mere supplication of the progress of strategy isn’t sufficient, it would need to be legitimised. It is just if the
court is fulfilled on appropriate and adequate material set by the administration that superseding and
overpowering public intrigue necessitates that the legislature ought not to be held bound by the promise
(the weight of indicating it lies on the legislature), the court would decline to authorise it.
● No portrayal or promise made by an officer can block the legislature from upholding a statutory restriction.
The doctrine can’t be profited to allow or excuse a rupture of law. Nor can the legislature or public bodies
be constrained to complete the portrayal if it is in opposition to the law, or past their position or power.21
 Nor would it be able to be conjured against the activity of administrative authority. The governing body
additionally can’t be blocked by this doctrine from practising its capacity.
● The promisor might be pardoned from playing out the promise in exceptional cases, where the resulting
occasions make it outlandish or discriminatory for the promisor to play out his sole obligation.

Promise
The portrayal or assurance depended upon must be unambiguous and unequivocal, and not a matter of induction, or
a negligible expectation or possibility. But simple demonstrations of extravagance, especially in business exchanges,
don’t make rights. While an aim to influence lawful relationship must be set up, such an objective might be found
impartially, i.e., it might be demonstrated that the promisor as far as he could tell proposed to influence lawful
relationship or that he deliberately so acted that he can’t be heard to state that he didn’t plan this to be the outcome.
At the point when promissory estoppel is conjured, the promise or confirmation essential to help it is definitely not
exactly a promising official on the gatherings in the contract. It would not be necessary to summon the doctrine of
promissory estoppel at all if the promise held contractual power.
Be that as it may, be the promise supporting promissory estoppel is firmly comparable to in many regards to a
promise having a contractual impact. One of its basic properties is a similar level of unequivocally, which with the
giving of full thought would have dressed it with contractual effect. In the Court of Appeal, Lord Denning alluded to
the exceptional outcomes of holding that an affirmation inadequate (because of inconclusiveness) to shift a contract
was yet unmistakable to help promissory estoppel achieving a similar outcome.

Impediments
To pull in the applicability of the doctrine, it isn’t essential that the promisee, acting in dependence on the promise,
ought to have endured any weakness. What is just vital is that the promisee ought to have modified his situation in
reliance on the promise, only that he more likely than not been directed to act uniquely in contrast to what he would
somehow or another have done.
The altering position should mean such modification in the situation of the promisee as it causes it to appear to the
court that holding the promisor to his portrayal is essential to do equity between the parties. The change of position
need not include any disadvantage to the promisee except if by drawback, treachery to the promisee, which would
result if the promisor was to subside from his promise.
The Law Commission of India couldn’t help contradicting the view that disservice was not necessary, and
prescribed that so much hindrance was significant as that harm or misfortune which the promisee was probably
going to endure if the promisor was permitted to backpedal on the promise or portrayal.

Promise irrevocable
The promisor may deny his promise except if it is unjust for him to backpedal on it. It would be unfair if the
promisee, having acted in dependence on the promise, can’t be re-established to the situation where he was before
he made a move. If the promisee can be re-established to that position, the promisor may backpedal on his promise.
It has been held that even where there is no abrogating public intrigue, the promisor may resile from the obligation
by giving reasonable notice, giving the promisee reasonable open door for continuing his position, if it is feasible for
the promisee to reestablish the present state of affairs risk. Be that as it may, if the promisee can’t continue his
position, the promise ends up last and irrevocable.

Cures
The doctrine depends on dependence, and it produced for anticipating unfairness. Any cure should, in this way, be
formed for the reasons for counteracting it.
The promise can be authorised by explicit authorisation, directives and obligations. A fundamental inquiry emerges
about the premise of conceding pay rather than the abovementioned when the idea of the exchange requests or when
the above cures are insufficient.
When cures in the contract are worried to put the plaintiff in as high a situation as he would have involved had the
litigant played out his promise they are said to satisfy the desires caused and to ensure the desire intrigue of the
plaintiff. Then again, the assurance of dependence intrigue is worried about putting the plaintiff in as high a situation
as he was in before the promise was made, i.e., to put the plaintiff in the status quo. This can be outlined with the
accompanying precedents, the principal where the doctrine is utilised as a reason for the activity, and the second
where it is utilised as protection.

No Estoppel against Minors

Assume that a minor by distorting his age incites another to contract with him, will there be any estoppels against
him, or, as it were, will he be blocked from unveiling his actual age in case coming about because of the contract?
Indeed, even this inquiry had at one time made a debate. Yet, it is currently settled by the dominance of power that
there are no such estoppels against a minor.
The infant isn’t ceased from setting up the resistance of outset. The reason is exceptionally straightforward. There
can be no estoppel against a resolution. The strategy of the law of contract is to shield people underneath age from
contractual risk and usually, the doctrine of estoppels can’t be utilised to overcome that approach. In this manner, for
a situation under the steady gaze of the Bombay High Court, Beaumont CJ audited the previous specialists and
closed by saying:
“The Court is of the conclusion that where an infant speaks to falsely or generally that he is of age and in this
manner incites another into a contract with him then in an activity established on the contract the infant isn’t halted
from setting up outset.”

Landmark judgement: Motilal Padampat Sugar Mills V. State of Uttar Pradesh and Ors. (1979)
FACTS
There was an announcement made by the Uttar Pradesh government that all new industrial units of the state will be
relieved from the sales tax for the upcoming three years. After this announcement, the plaintiff went for
confirmation to the Director of Industries who restated the announcement made by the government earlier. Chief
Secretary of Government, on behalf of the UP government, gave clear assurances to the plaintiff about the same.
After getting definite assurance the plaintiff thought of setting up a new plant in Uttar Pradesh and for this, he took a
large amount of money on credit from monetary organizations. Afterwards, the government made some changes in
the announcement and assured to offer limited concessions. Plaintiff agreed to the assurance and started his work.
However, the state government after some time denied to grant any kind of concessions. This left the plaintiff with
no other option than to sue the government on account of a promissory estoppel.
ISSUES
● By giving consent to limited concession did the plaintiff surrender his right to have a cause of action?
● On grounds of promissory estoppel, can the plaintiff have a cause of action?
● Whether any action taken against the government while acting in administrative capacity can lie?
● Can a plaintiff’s action be destined to succeed in this case?
HELD
The writ was dismissed by the High Court of Uttar Pradesh and also rejected the plea against the government of
Uttar Pradesh of promissory estoppel. The Supreme Court heard the plea and held that appellant on the assurance
made by the government took a loan. The government by his words made a clear promise which created a lawful
relationship between both the parties and the appellant relied on that assurance and acted upon it. Therefore, the
promise would be obligatory on the party who made it and cannot back off from his words. The appellant suffered
detriment because of the assurance given by the government. It would be unfair to allow the government to back off
from his words as the appellant acted upon the promise that resulted in changing the position which cannot be
reinstated. Appellant not only took loan but also purchased machinery and established the hydrogenation plant. So,
promissory estoppel can be invoked.

Critical analysis of doctrine of promissory estoppel

Nothing in this world can go smoothly perfect without a glitch. Where on one hand promissory estoppel acts as a
shield on the promisee but on the other it also gives rise to problems of financial ones. In a country, even if there
exists a well settled administration problem still arises as citizens have some expectations from specific departments
to act in compliance with the assurances they have made and procedures they have instituted. Some of the problems
that aroused because of this doctrine but with time have settled down are:
● Can promissory estoppel be allowed to be used as a cause of action?
 ● Is it necessary for the promisee to go through any damage before he appeals for the doctrine?
Promissory estoppel is considered to act as a shield as it is used as defence in general. It is not used as a course of
action. Promisor can use this defence to recover the damages suffered by him because of the reliance on the promise.
Even if consideration does not exist promissory estoppel will act as a shield as this doctrine is the exception to
‘consideration is a required’ rule. In contract, consideration is required to make the agreement a valid contract as a
contract without consideration is considered void. So, for promissory estoppel to act as a sword consideration will be
required and somewhere in this doctrine lacks consideration. And this reason makes a promissory estoppel to act as
only shield not a sword. Justice Bhagwati also mentioned in one of the cases that if a promissory estoppel is used as
a sword then surely the floodgates will be opened. The role played by the Supreme Court and its contribution in
development of the doctrine has been noteworthy but still there occurs a restricted interpretation and limited
application of the doctrine.

Conclusion
It tends to be said that if the Government of India or of any State in India makes a promise to any individual and the
promise isn’t conflicting with the law and regulation that must be adhered to and isn’t against the public intrigue, at
that point a short time later it can’t decline to maintain its promise. The Supreme Court of India has said that
following up on the affirmation or portrayals are sufficient and ensuing burden, harm or bias caused isn’t to be
demonstrated.
It is likewise insignificant whether such portrayal was completely or halfway in charge of such adjustment in the
position. It can be also said that wherein the Government or any private entity has promised to fulfil any contractual
obligations and then that entity backs out without committing the obligation to its entirety then it would lead to
arbitrariness on one party’s right and therefore rights of one party would be lynched if every party is allowed to back
from their obligations. Thus the same was also ruled in Pournami Oil Mills Case, wherein the court directed the
government to fulfil the promise done by it.

Administrative Tribunals:

Tribunal is a quasi-judicial institution that is set up to deal with problems such as resolving administrative or tax-
related disputes. It performs a number of functions like adjudicating disputes, determining rights between
contesting parties, making an administrative decision, reviewing an existing administrative decision and so
forth.

■ The term ‘Tribunal’ is derived from the word ‘Tribunes’, which means ‘Magistrates of the
Classical Roman Republic’.
○ Tribunal is referred to as the office of the ‘Tribunes’ i.e., a Roman official under the
monarchy and the republic with the function of protecting the citizen from arbitrary
action by the aristocrat magistrates.
■ A Tribunal, generally, is any person or institution having an authority to judge, adjudicate on, or to
determine claims or disputes – whether or not it is called a tribunal in its title.

Why is there a Need for Tribunals?

■ To overcome the situation that arose due to the pendency of cases in various Courts, domestic
tribunals and other Tribunals have been established under different Statutes, hereinafter referred to
as the Tribunals.
■ The Tribunals were set up to reduce the workload of courts, to expedite decisions and to provide
a forum which would be manned by lawyers and experts in the areas falling under the jurisdiction of
the Tribunal.
 ■ The tribunals perform an important and specialised role in justice mechanism. They take a load off
the already overburdened courts. They hear disputes related to the environment, armed forces, tax
and administrative issues.

What are the Constitutional Provisions?

■ Tribunals were not part of the original constitution, it was incorporated in the Indian Constitution by
42nd Amendment Act, 1976.
○ Article 323-A deals with Administrative Tribunals.
○ Article 323-B deals with tribunals for other matters.
■ Under Article 323 B, the Parliament and the state legislatures are authorised to provide for the
establishment of tribunals for the adjudication of disputes relating to the following matters:
○ Taxation
○ Foreign exchange, import and export
○ Industrial and labour
○ Land reforms
○ Ceiling on urban property
○ Elections to Parliament and state legislatures
○ Food stuff
○ Rent and tenancy rights
■ Articles 323 A and 323 B differ in the following three aspects:
○ While Article 323 A contemplates the establishment of tribunals for public service
matters only, Article 323 B contemplates the establishment of tribunals for certain
other matters (mentioned above).
○ While tribunals under Article 323 A can be established only by Parliament, tribunals
under Article 323 B can be established both by Parliament and state legislatures with
respect to matters falling within their legislative competence.
 ○ Under Article 323 A, only one tribunal for the Centre and one for each state or two
or more states may be established. There is no question of the hierarchy of tribunals,
whereas under Article 323 B a hierarchy of tribunals may be created.
■ Article 262: The Indian Constitution provides a role for the Central government in adjudicating
conflicts surrounding inter-state rivers that arise among the state/regional governments.

What are the Different Tribunals in India?

■ Administrative Tribunals
○ Administrative Tribunals was set-up by an act of Parliament, Administrative
Tribunals Act, 1985. It owes its origin to Article 323 A of the Constitution.
● It adjudicates disputes and complaints with respect to recruitment
and conditions of service of persons appointed to the public
service and posts in connection with the affairs of the Union and
the States.
○ The Administrative Tribunals Act, 1985 provides for three types of tribunals:
● The Central Government establishes an administrative tribunal called
the Central Administrative Tribunal (CAT).
● The Central Government may, upon receipt of a request in this behalf
from any State Government, establish an administrative tribunal for
such State employees.
● Two or more States might ask for a joint tribunal, which is called the
Joint Administrative Tribunal (JAT), which exercises powers of
the administrative tribunals for such States.
○ There are tribunals for settling various administrative and tax-related disputes,
including:
● Central Administrative Tribunal (CAT), Income Tax Appellate
Tribunal (ITAT), Customs, Excise and Service Tax Appellate
Tribunal (CESTAT), National Green Tribunal (NGT),
Competition Appellate Tribunal (COMPAT) and Securities
Appellate Tribunal (SAT), among others.
■ Central Administrative Tribunal
○ It has jurisdiction to deal with service matters pertaining to the Central Government
employees or of any Union Territory, or local or other government under the control
of the Government of India, or of a corporation owned or controlled by the Central
Government.
● The CAT was set-up on 1 November 1985.
● It has 17 regular benches, 15 of which operate at the principal seats
of High Courts and the remaining two at Jaipur and Lucknow.
● These Benches also hold circuit sittings at other seats of High
Courts. The tribunal consists of a Chairman, Vice-Chairman and
Members.
● The Members are drawn, both from judicial as well
as administrative streams so as to give the Tribunal
the benefit of expertise both in legal and
administrative spheres.
 ○ The appeals against the orders of an Administrative Tribunal shall lie before the
Division Bench of the concerned High Court.
■ State Administrative Tribunal
○ Article 323 B empowers the state legislatures to set up tribunals for various matters
like levy, assessment, collection and enforcement of any of the tax matters connected
with land reforms covered by Article 31A.
■ Water Disputes Tribunal
○ The Parliament has enacted Inter-State River Water Disputes (ISRWD) Act, 1956
have formed various Water Disputes Tribunal for adjudication of disputes relating
to waters of inter-State rivers and river valleys thereof.
●Standalone Tribunal: The Inter-State River Water Disputes
(Amendment) Bill, 2019 is passed by Parliament for amending the
existing ISRWD Act, 1956 to constitute a standalone Tribunal to
remove with the need to set up a separate Tribunal for each water
dispute which is invariably a time-consuming process.
■ Armed Forces Tribunal (AFT)
○ It is a military tribunal in India. It was established under the Armed Forces
Tribunal Act, 2007.
○ It has provided the power for the adjudication or trial by AFT of disputes and
complaints with respect to commission, appointments, enrolments and conditions of
service in respect of persons subject to the Army Act, 1950, The Navy Act, 1957
and the Air Force Act, 1950.
○ Besides the Principal Bench in New Delhi, AFT has Regional Benches at
Chandigarh, Lucknow, Kolkata, Guwahati, Chennai, Kochi, Mumbai and Jaipur.
● Each Bench comprises of a Judicial Member and an Administrative
Member.
○ The Judicial Members are retired High Court Judges and Administrative
Members are retired Members of the Armed Forces who have held the rank of
Major General/ equivalent or above for a period of three years or more, Judge
Advocate General (JAG), who have held the appointment for at least one year are
also entitled to be appointed as the Administrative Member.
■ National Green Tribunal (NGT)
○ The National Environment Tribunal Act, 1995 and National Environment
Appellate Authority Act, 1997 were found to be inadequate giving rise to demand
for an institution to deal with environmental cases more efficiently and effectively.
○ The Law Commission in its 186th Report suggested multi-faceted Courts with
judicial and technical inputs referring to the practice of environmental Courts in
Australia and New Zealand.
● As a result NGT was formed as a special fast-track, quasi-judicial
body comprising of judges and environment experts to ensure
expeditious disposal of cases.
○ The National Green Tribunal was established in 2010 under the National Green
Tribunal Act 2010 as a statutory body.
● It was setup for effective and expeditious disposal of cases relating to
environmental protection and conservation of forests and other
natural resources.
 ● It also ensures enforcement of any legal right relating to environment
and giving relief and compensation for damages to persons and
property.
○ The Tribunal is mandated to make and endeavour for disposal of applications or
appeals finally within 6 months of filing of the same.
○ Initially, the NGT is proposed to be set up at five places of sittings and will follow
circuit procedure for making itself more accessible.
●New Delhi is the Principal Place of Sitting of the Tribunal and
Bhopal, Pune, Kolkata and Chennai shall be the other four place of
sitting of the Tribunal.
■ Income Tax Appellate Tribunal
○ Section 252 of the Income Tax Act, 1961 provides that the Central Government
shall constitute an Appellate Tribunal consisting of many Judicial Members and
Accountant members as it thinks fit to exercise the powers and functions conferred
on the Tribunal by the Act.

What are the Characteristics of Administrative Tribunals?

■ Administrative Tribunal is a creation of a statute.

■ An Administrative Tribunal is vested in the judicial power of the State and thereby performs quasi-
judicial functions as distinguished from pure administrative functions.
■ Administrative Tribunal is bound to act judicially and follow the principles of natural justice.
■ It is required to act openly, fairly and impartially.
■ An Administrative Tribunal is not bound by the strict rules of procedure and evidence prescribed
by the civil procedure court.

How do Merging Tribunals take place?

■ The Finance Act of 2017 merged eight tribunals according to functional similarity. The list of the
tribunals that have been merged are given below:
○ The Employees Provident Fund Appellate Tribunal with The Industrial Tribunal.
○ The Copyright Board with The Intellectual Property Appellate Board.
○ The Railways Rates Tribunal with The Railways Claims Tribunal.
○ The Appellate Tribunal for Foreign Exchange with The Appellate Tribunal
(Smugglers and Foreign Exchange Manipulators (Forfeiture of Property) Act, 1976.
○ The National Highways Tribunal with The Airport Appellate Tribunal.
○ The Cyber Appellate Tribunal and The Airports Economic Regulatory Authority
Appellate Tribunal with The Settlement and Appellate Tribunal (TDSAT) .
○ The Competition Appellate Tribunal with the National Company Law Appellate
Tribunal.
■ In 2021, the Supreme Court of India (SC) has challenged the government to produce material
showing its reasons for introducing the Tribunal Reforms Bill of 2021.
○ The Bill replaces the Tribunals Reforms (Rationalisation and Conditions of
Service) Ordinance, 2021 which was quashed by the Supreme Court.
What is the Difference Between Tribunal and Court?

■ Administrative Tribunals and Ordinary Courts both deal with the disputes between the parties which
affects the rights of the subjects.
■ Administrative Tribunal is not a court. Some notable differences between a court and Administrative
Tribunal are as follows -

N Court of Law Tribunal

o
.

1 A court of law is a part of An Administrative

. the traditional judicial Tribunal is an agency
system whereby judicial created by the statute
powers are derived from the and invested with judicial
state. power.

2 The Civil Courts have Tribunal is also known as

. judicial power to try all suits the Quasi-judicial body.
of a civil nature unless the Tribunals have the power
cognizance is expressly or to try cases of special
impliedly barred. matter which are
conferred on them by
statutes

3 Judges of the ordinary courts Tenure, terms and

. of law are independent of conditions of the services
the executive in respect of of the members of
their tenure, terms and Administrative
conditions of service etc. Tribunal are entirely in
Judiciary is independent of the hands of Executive
Executive (government).
4 The presiding officer of the The president or a
. court of law is trained in member of the Tribunal
law. may not be trained as
well in law. He may be
an expert in the field of
Administrative matters.

5 A judge of a court of law An Administrative

. must be impartial who is Tribunal may be a party
not interested in the matter to the dispute to be
directly or indirectly. decided by it.

6 A court of law is bound by An Administrative

. all the rules of evidence Tribunal is not bound by
and procedure. rules but bound by the
principles of nature of
Justice.

7 Court must decide all Administrative Tribunal

. questions objectively on the may decide questions by
basis of evidence and taking into account
materials on record. departmental policy, the
decision of
Administrative Tribunal
may be subjective
rather than objective.

8 A court of law can decide Administrative Tribunal

cannot do so
 . vires of a legislation

Commissions of Inquiry:
Before the ratification of the Commission of Inquiry Act, 1952, the government used to order the public either by
giving executive order or notice under the Public Servants Inquiries Act,1850 or by making ad hoc committees
(committees made for a special purpose and after the purpose is fulfilled it gets dissolved). The Act is not specific to
any kind of matter, in fact, it includes almost all kinds of matters. The Chagla Commission is the first inquiry of the
independent India which created a bustling interest among the people and was set up by the government of India to
examine whether the funds of the life insurance corporation of India have been properly utilized. The procedure that
has been ratified by the government was found to be burdensome and faulty. So to satisfy the ever-growing need for
the ever-increasing demand for public inquiries by the independent and impartial authority. Hence, the need was felt
that a suitable Act is brought out on the subject, which results in the introduction of the Commissions of Inquiry
Bill, 1952 in the Parliament.

Commission of Enquiry Act, 1952

This Act is made for the appointment of commissions to inquire into matters which are related or concerned or
affects the public at large. This Act applies to the whole of India provided it shall also apply to the state of Jammu
and Kashmir. When the central government may, by notification in the official gazette appoints a commission from
that day only the act shall come into force. Under Section 2 of the commission of inquiry Act, it has provided certain
definitions for reference which are further used in this act like “appropriate Government” which means only Central
and State governments has the right to appoint a commission to make an inquiry related to any of the entries which
are mentioned in List I or List II or List III in the Seventh Schedule of the Constitution. It has also explained the
meaning of commission which means a commission of inquiry appointed under Section 3, “prescribed” means that
rules which are made under this act should only be referred. Appointment of the commission was there in section 3
of the Act, Section 4 defines the powers of the commission. Section 5 has additional powers which are been given to
the commission. Section 6 deals with the provisions of the statements made by the person to the commission in this
section it also mentions that commission cannot force any person to disclose the secret process of manufacture of
goods except in some cases. Section 7 says that commission can cease to exist whenever it is notified. Section 8
deals with the procedure that needs to be followed by the commission. Section 9 deals with the protection of action
that should be taken against the person who acted in a good faith. Section 10 says that any member of the
commission appointed should necessarily be a public servant. Section 11 says that this act is applicable to other
inquiring authorities also in exceptional cases or wherever the need is found. Lastly, Section 12 of the Act which
gives power to the commission to make rules to carry out the purposes of this Act.

Main provisions

There are almost 12 provisions which are defined under the Commission of Inquiry Act, 1952 but only some of the
provisions are main:

Section 3

This Section deals with the appointment of commission and says that an appropriate government by giving
notification in the official gazette can appoint a commission of inquiry to look into the matters of public importance
within a specified period of time as given in the notification. Also, no state government can appoint another
commission to inquire into the same matter. The commission can have more than one member appointed by the
appropriate government also when the commission has more than one or more members then one of them should be
appointed as the Chairman of the commission. The commission also has to submit the report of inquiry along with a
memorandum of the action taken within a period of six months of the capitulation of the report.
Section 4

Under this Section, powers of the commission has been defined which says that the commission has the power of a
civil court under the Code of Civil Procedure, 1908 with respect to the following matters:

1. Asking and prosecuting the attendance of any person from any part of the country and examining him
on the day of the oath.
2. Matters which requires any discovery or production of any document.
3. Matters which are receiving matters on affidavits.
4. Matters related to any requisitioning of public record or copy thereof from any court or office.
5. Issues related to the examination of witnesses and documents.
6. Or any other matter which may be prescribed.

Section 5

Additional powers of the commission have been described in this section which says:

1. The commission has the power to require any person or individual, or subject to dispense information
on such matters which in the opinion of the commission might be useful or relevant to the subject
matter of inquiry.
2. No officer below the rank of a Gazetted Officer is not authorized to enter any building for inquiry. but
those who are above in the hierarchy can on the behalf of the commission enter any building or place
where they believe that any document or the book of accounts which are relevant to the subject matter
of the inquiry and can also seize under Section 102 and Section 103 of the Code of Criminal Procedure,
1898.
3. Any offence under Section 175, Section 178, Section 179, Section 180, or Section 228 of the Indian
Penal Code and after the recording of any facts or the statement of the accused was taken the case
should be forwarded to the magistrate who has the jurisdiction to try the same.
4. Any proceedings shall be deemed to be a judicial proceeding under Section 193 and Section 228 of the
Indian Penal Code.

Section 8

Section 8 deals with the procedure that needs to be followed by the commission. Though the commission has the
power to regulate or make its own procedures but still are bound by certain provisions:

1. The inquiry should not get interrupted by the reason for any vacancy in the commission or any sort of
changes that occur in the constitution of the commission.
2. At any stage of the inquiry, if the commission wants that it is necessary to inquire into the conduct of
the person or the commission is of the opinion that the reputation of any person will get injured because
of the injury, then the commission should give a reasonable amount of time to the person to produce
evidence and also the person should get an opportunity of being heard. All this can be done only when
it doesn’t discredit the witness of the case.
3. The appropriate government, or any other person, with the acknowledgement of the commission,
whose evidence is being recorded has the right
1. to cross-examine a witness other than a witness that has been produced by the commission before.
2. Can address the commission, and
3. Also, it should be represented by a legal practitioner.
Amendments

Due to the loopholes in the original Act, there was a need to amend this act quite a few times and due to the
flexibility in the constitution of our country, it was made possible. In the meantime of 68 years, this Act has been
amended over five times:

1. The Commissions of Inquiry (Amendment) Act, 1971 (79 of 1971)

2. The Delegated Legislation Provisions (Amendment) Act, 1985 (4 of 1986)
3. The Commission of Inquiry (Amendment) Act, 1986 (36 of 1986)
4. The Commissions of Inquiry (Amendment) Act, 1988 (63 of 1988)
5. The Commissions of Inquiry (Amendment) Act, 1990 (19 of 1990)

Status and relevance

A commission of inquiry is not a judicature. The commission has the power to investigate, make laws, can record
the evidence and can make recommendations but without having any superior authority who can properly enforce
them. Even the reports or the inquiry cannot be looked at as a judicial or administrative inquiry rather it is being
exercised as a so-called administrative function. The members of the commission don’t have immunities to claim for
otherwise, immunities are available to an officer governing over a court of law. There was a famous case of Biju
Patnaik (P. V. Jagannath Rao & Ors vs State Of Orissa & Ors.) which made us clear the fact that a court of inquiry
can be set up even if certain matters were pending in the courts. The commission of inquiry in the case had nothing
to impede or interfere with the powers of the court by acting in good faith and ejecting statutory functions under the
Commission of Inquiry Act. The commission of inquiry is also not competent enough to penalize anyone for the
distaste of his proceedings or for infringing its orders. The commissions are for an interim time period and also their
sittings are not even on a regular basis.

Conclusion

As we have seen that how the Commission of Inquiries Act, 1958 works, its purpose of formation, powers,
procedure, appointments, current status its amendment, etc. but even after amending it for five-time the loopholes
were not eradicated till now because of the possibility that we still don’t have any established permanent body. In
order to dodge multiplicity of commissions and to have a uniform structure or procedure, it seems necessary that
there should be a permanent body or organization should be there to integrate all the activities of the commissions
like it is there in England when they enacted the inquiries act in 1958 they created a permanent body called Councils
of Tribunals. Also to maintain uniformity in the laws it is suggested that instead of authorizing central government
or state governments to fabricate rules for the procedure to be ratified by the commissions, the Government of India
should make an extensive set of rules which are applicable to all the commissions present also it will help in
reducing or eradicating chaos among members and will develop a sense of belongingness in the system. Also, there
is no specific definition of public importance was given in the act which should be there because this is so subjective
in nature for someone a particular issue might not be of public importance but for some, it may be an issue of public
importance so there is a need to provide a specific definition of public importance through which we can easily
determine whether the issue is of public importance or not. If we see France and Italy they both had special courts
for administrative issues thus it clear aways the need for a special commission of inquiry. As we all know that we
live in a growing and developing country where changes are common, so sometimes the laws need to be stricter and
sometimes it needs to be lenient so as to accord with this change. Therefore due to the flexibility present in our
system, this need is somehow achieved. But the surveys regarding the ground level implementation of these acts
points the other way. After implementing these changes as mentioned above, there might be a possibility that the
proper functioning of the system can be accomplished.

Public Corporations.
What's a public corporations definition? A public corporation is a legal entity that is separate and distinct from its
owners. Public corporations enjoy most of the responsibilities and rights that an individual possesses. For example, a
corporation has the right to loan and borrow money, enter into contracts, sue and be sued, own assets, hire
employees, and pay taxes. A public corporation is often referred to as a "legal person."

Public Corporation Law and Legal Definition

Public corporate law is related to contract and commercial law and deals with the operations and formation of a
corporation. A corporation is a separate legal entity that's created through the state laws in which it was
incorporated. It's treated as a legal person that has the ability to sue and be sued, definitively distinct from its
shareholders.

Corporations are taxed at a lower rate than individuals. A corporation has a perpetual life, meaning the deaths of
shareholders and officials don't change the corporate structure. State laws regulate the organization, creation, and
dissolution of corporations. About half of states follow the Model Business Corporation Act.

Registration laws require all corporations that incorporate in foreign states to request permission to do in-state
business. In 1933, Congress passed the Securities Act, which regulates how securities are issued and traded.

Corporations need to follow specific federal licensing and regulation guidelines based on the industry in which they
do business. For example, the public transportation and communication sectors are highly controlled and regulated.

A public purpose corporation is a company that's been formed and chartered by the state to fulfill a government
function. It may also be referred to as a public benefit corporation. Some states will define a public purpose
corporation as a charitable corporation or a nonprofit, even if it's created with private funds.

Public Purpose Corporation Function

A public purpose corporation is formed to help society. In fact, many are used in highly regulated industries, such as
public transportation and broadcasting. Some examples of public purpose corporations that were formed by state
governments include:

● Senior centers
● Libraries
● Aviation and port authorities

Some examples of public purpose corporations formed by the federal government include:

● Amtrak
● United States Postal Service
● Corporation for Public Broadcasting
Public Authority Public Purpose Corporation

A public authority is another category of public purpose corporation. It's formed by a governing body that will use it
to assist the public. A public authority will tend to have increased bureaucratic control and will often regulate federal
and state infrastructure. Upon being formed, a public authority is operated by the government as an independent
legal entity and is usually protected from political pressure.

Some examples of public authorities include:

● Medical centers
● Affordable housing
● Highway and bridge management

Quasi-Public Purpose Corporation

A quasi-public purpose corporation is a variation of the public purpose corporation. Although similar, a quasi-public
corporation is formed with the intention of benefiting the public. The main difference between the two is that a
quasi-public purpose corporation is operated privately. The private or independent owners of the business will
usually benefit from receiving some amount of government funding.

The stock of a quasi-public purpose corporation may be sold on the open market. The purpose of the business is not
to generate a profit, but instead to carry out original purpose. For example, Sallie Mae is a type of quasi-public
purpose corporation. Sallie Mae's intention is not to make a profit, since it was created to assist in the advancement
of student loan improvement.

Difference Between Publicly Held Corporation and Public Purpose Corporation

It's important to remember that a public purpose corporation should not be mistaken with a publicly traded or
publicly held corporation, where shares are traded in the off-exchange trading market or on a securities exchange.
Publicly held businesses may refer to a large variety of corporations, but most importantly, they don't require that
any public benefit or purpose is involved.

What Is an Indian Public Corporation?

In India, a public corporation is a business that's created by the legislature or an act of parliament, and its name is
notified in the official gazette of the state or central government. There are many businesses that were created in
India by the government in the form of a service organization, including:

● Air India
● Unit Trust of India
● State Bank of India
● Food Corporation of India
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