Administrative law is a heuristic science or an organized knowledge based on experiment which is

flexible and changing.

Branch of public law [constitutional law and administrative law]: it deals with the relationship
between private individual with organized state. Private law regulates the relationship between two
persons.

Administrative law is anti-authoritarian whereas constitutional law is anti-majoritarian.

Democracy is majoritarian but not constitutional democracy.

Administrative law:

 There is a possibility of misuse of power, this law checks that people do not misuse the power. It
is based on certain assumptions:
o No administrative power is unlimited
o Every power is likely to be misused
o Every power is a public trust [it is not a personal power, it remains a trust of the people in the
hands of the officer]. Power should be used in the beneficiary’s interest. Anti-authoritarianism
makes it people centric.
 It enforces rule of law on the government and make it responsible and make good governance.

Rule of man: rule by a monarch

Rule by law: pre-decided laws govern

Rule of law: rule not by every law but rule by a law that is just, reasonable and fair [Natural law]

Rule by justice: justice must be done

Administrative law tries to enforce legality on the administration as well as rule of law.

Maneka Gandhi Case: post decisional hearing

Law:

 Positive: it is not valid if it violates the higher law

 Higher: principles of natural justice, concept of rule of law

Illus: kingdom of thapes: king ruled by decrees – dies- 2 sons and 1 borher- brother occupied the
throne- sons rebelled- formed an army – declared war – elder son killed – younger fled away –
 king decrees: younger son is a traitor and therefore he is to be arrested and killed, his body to be
throw on street to be eaten by animals. Anybody who gives a burial to his body would also be a
traitor and killed, son areted and killed. Sister argues to himself that everyone is entitled to decent
burial after death. She goes and buries her brother. News reaches the king. he asked the sister that
did you know the law? Yes. Why violated? Because law isn’t valid and it violates a higher law of
the gods and is unreasonable and everyone has a right to violates such a positive law.

Natural law is inherent to humans for being a human. It is an inalienable right which cannot be
violated. It is based on the natural instincts of a man which are always just and reasonable.

Scope:

 It checks the abuse of power by the administration

 To ensure impartial determination of disputes by the administrative authorities by emphasizing on
a fair procedure. Administration follows the procedure give by law or procedure laid down by
themselves or procedure suggested by the higher law
 To protect the people from unauthorized encroachment by the admin on their rights and interests
and to make them accountable. They do so through the instrumentality of law.
 To keep the administration within legal limits.
 Administrative law is always used in two senses:
o Meaning according to the civil law system/continental law system: a different system of justice
delivery was setup for solution of administrative disputes in France. The dispute between two
private individuals would go to the normal courts. Civil suits – law of parliament would apply.
Dispute between private individuals and government servant: law developed by administrative
courts on case to case basis would apply. This law is called administrative law
o Common law countries: all disputes go to the same courts and governed by the same laws.
Administrative law: the special rules and regulations developed by the courts to control and
regulates the powers of the administration.

Administrative law is a by-product of a welfare form of government: why generated

Purpose: to protect the people against the abuse of power by the administrative authorities

If one has suffered by the misuse, then how the government can be held responsible.

Government did not want to make the tribunals as independent as was desired but they also
wanted to take the jurisdiction of the traditional courts away.
 In UK,

Definition: initially the role of the administration as limited, but after world wars, most of the states
became welfare state and it lead to the huge growth in the administrative process and it lead to
emergence of a separate branch. In continent, it was existing right from the time of French
revolution.

J. F. Port (1929, Administrative Law): Administrative law is made up of all legal rules either
formally expressed by statute or applied in prerogative [inherent power of the crown] which have
as their ultimate object the fulfilment of public law [purpose is to regulate the relationship of the
private individual with the administration]. There were certain limitations on the inherent powers
also.

A. V. Dicey: He has in mind the continental system of administrative system. It is a separate

portion of law. Administrative law is that portion of legal system which:

 Determines the legal status and liabilities of the state officials

 Defines the rights and liabilities of a private individual in their dealing with the public officials
 Which specifies the procedure by which those rights and liabilities are enforced.

K. C. Davis: administrative law concerns the powers and procedures of administrative agencies
including specially the law governing judicial review of administrative actions. He put more
emphasis on the procedure which the administrative authority follow. We, in the common law,
concerns more on the judicial review.

Prof. Endy Cott: administrative law includes a complex variety of processes and doctrines that
confer and control public power and impose rule of law [fairness, reasonableness and justness] on
public authorities.

Prof. Baxi: administrative law is a weapon in the hands of the middle classes to secure their rights
and entitlements against the administration.

Prof I P Massey: administrative law [it is a law in the realist sense of the term and not in the
lawyer sense of the term. Lawyer sense: law passed by the parliament and rules and regulations
formed by the administrative authorities. We include here: statute law, delegated legislation; Judge
made law; higher law, principles of natural justice, procedural fairness; those particular things
which are generally not considered a law, e.g. policy decision, government memoranda,
government resolutions, administrative directions; long customs and traditions followed by the
administrative authorities] is a branch of public law [public laws deals with the disputes between
private individuals when he is in conflict with a public authority] which deals with the structure,
powers and functions [how an administrative authority has been constituted, what are the
powers conferred, what functions the law requires the administrative authority to perform. This is
the focus of public administration] of administrative and quasi-administrative authorities [1.
Administrative authority which is created by law; 2. Authorities which are created not by law but
under the law e.g. authorities registered under the societies act; authorities registered under the
companies act [quasi-administrative authorities]; those authorities which are considered as State
under Article 12 and something else as well; 3. Authorities which are agencies and authorities of
the state, they are not created by law but they are controlled by the government; 4. Private
authorities which are exercising public functions, e.g. BCCI] and prescribes principles and rules
[for good governance so that these authorities can perform their functions in a reasonable fair and
just manner. E.g. post-decisional hearing] by which administrative action [law making action,
adjudicatory actor, administrative action, purely administrative action. We are not concerned about
the rightness of the decision, we are concerned about the procedure] is reached and thereafter
controlled [by the higher administrative authorities, by the judiciary [writ jurisdiction, original
jurisdiction], informally by mass media, unions, civil societies, quasi-administrative authorities such
as ombudsman, Lokpal] in order to reconcile power with liberty of the people [power of the
administration which is likely to be misused. To maintain a balance between power and rights of
the subjects].

Administrative law is a chemotherapy for a cancerous administration: the administration always

tries to misuse power.

Administrative law deals with the pathology of power in a society and relates with the control of
government powers: what are the real state of exercise of power in a particular society [pathology
of power] e.g. arrogance of power, chaotic exercise of power, corruption, factionalism, low
performance of public institutions. Our emphasis in administrative law is how to control this
pathology.

There is a Syllogism: method of thinking: no power of an administrative authority is absolute.

Every power can be misused. Therefore, the conclusion is that every power is to be controlled.
 If the functions of the state can be divided into three: legislative, judicial and executive or
administrative, then administrative law deals with the administrative branch of the state. E.g.
judiciary and legislative powers also exercises administrative functions.

S Schwartz: administrative law is an equalizer between powerful administration and disempowered

citizens. If there is not a good administration, then even the most economically advanced countries
would collapse under its own weight.

Administrative law attempts to regulate administrative space national or international in order to

infuse fairness and accountability in the best interest of the individual in the society.

Administrative law is pervasive and covers an uncharted areas whenever there is an allegation of
misuse of power by the administrative.

Purpose of administrative law:

 To ensure impartial determination of disputes by the administration.

 To check the abuse of power by the administration.
 To protect the rights of the people when violated by the administration
 To enforce fairness and accountability in the administrative actions.

Nature of administrative law:

 It is an insecure science. It deals with contextuality: in what context an action is being taken.
Therefore, the application of principles of administrative law differs in every case. It is done so
that justice is done fairly in individual case. Administrative law brings the law nearer to the lifeline
of the people.
 Administrative law does not belong to the area of philosophy of law but to the sociology of law:
constitutional law belongs to the philosophy of law area. Philosophy of law: we deal with the law
as a metaphysical concept, we take into account whole cosmos of law and then try of develop
certain fundamental principles out of it which are universal and then we try to apply them in the
administration of society. Sociology of law: we emphasis justice to the individual. We emphasize
rule of law and fairness, reasonableness and justness. It tries to solve the problem of the people
which the people daily face while dealing with the administration.
 Administrative is not logic but is experience. This is not merely argumentative, we don’t believe
on syllogistic thinking, we believe in helping the people in their dealings with administration. It is
people centric.
 Administrative law cannot be divorced from socio-economic and political realities of the society.

Approaches to administrative law:

 Circumscriptive approach [Red light approach]: administration having legislative, judicial and
executive power emerged as new monarchs. Give as less power as possible. Circumscribe their
power and it must be clearly identified and limits must be laid down. If this is not done, the rights
and liberties of people are at a great risk.
 Prescriptive approach [Green light approach]: when states became welfare states, people started
demanding that the give the administrators as much power as they need. Because it is necessary
for properly executing the socio-economic programmes which are going to benefit the
disadvantages sections of the society. Hand in hand, provide control mechanism. It is presently
followed approach, mainly in developing countries.

Scope of administrative law: Administrative law deals with six basic aspects.

 What sort of powers the administration exercises [they exercise quasi-legislative, quasi-judicial,
administrative powers, ministerial powers];
 What are the limits of the those powers
o They may be given in the constitution
o Arise from the law of the land
o The limits may be implied from the higher law
 What are the strategies to keep the administration within those limits
o The constitutional strategies
 Writ jurisdiction of the SC and HC
 PIL
o Non-constitutional strategies
 Ordinary courts
 Special courts [labour courts, Human rights courts, sc and st courts]
o Statutory strategies
 Ombudsman [a friend of the people, Sweden origin]
 Lokpal
 Commissions [women commission, children commission, SC and ST commission]
o Higher administrative authorities:
 Education tribal in UP
o Non-formal strategies
 Pressure groups which keep a control over the administrative authorities: mass media, unions and
associations
 Civil societies: NGO
 Lobbying institutions:
 Commission of enquiries:
 What procedure is followed by administrative authorities while taking administrative actions:
administrative procedure act, 1946 [America]; tribunals and enquiries act 1992 [England]
o Procedure is laid down in the Act under which the administrative authority is constituted
o Administrative authority shall follow the ordinary procedure of the court
o Law allows administrative authority to develop its own procedure
o When nothing is laid down, administrative authorities are required to follow the minimum
procedure laid down by the principles of natural justice.
 What are the remedies available against the misuse of power by the administration:
o Remedies available under the Act itself
o In common law countries, the real control is provided by the constitutional courts through the
mechanism of writ jurisdiction
o In civil law countries, the real control is provided by the administrative courts
o Civil courts [provide compensation for damage, specific relief, injunction, declaratory remedies]
 Globalised administrative authorities: remedy to the either to a country or to private individual.
WTO [trade disputes]

Reasons for the growth of Administrative law and process:

 Administrative process is a by-product of an intensive form of government or the concept of

welfare state. Social contract theory  some sovereignty surrendered to the authority formed by
the agreement among the masses  Era of laissez faire [the government was supposed not to
interfere in human life but for security from external aggression and for maintaining law and order.
It was an era of individualism (individual must be left free to decide what is good for him, individual
is the centre) opposed to today’s collectivism; free enterprise (no licensing no regulation); self-help
(no state intervention, no state activism); freedom of contract: it is known as the GOLDEN
VICTORIAL ERA OF HUMAN FREEDOM]. Communities were basically agriculture based. In
16th century in England, industrial revolution started (mass production, mass employment, mass
migration to cities; many problems started like exploitation of the labour by the employer: no fixed
working hours, no minimum wages, no provision for health and therefore it resulted in huge
exploitation of the poor workers by the capitalist). From this exploited section, there was a demand
 that state should protect them and then we moved to an Era of Paternalism (they started talking
that state must protected them as the father protects the family). They simply wanted the state to
lay down rules and regulations for the capitalists. They did not want the state to open industries.
Again it was felt that the rules formed by the states did not help much, because these were not
followed. So, the demand changed and then we came to the ERA OF MATERNALISM or state
activism. Here, people started talking that it is not sufficient that state just lays down norms, it
should come forward and solve the problems which they daily face. State must take care of the
society same as mothers. State must help people from cradle to grave. This is known as concept
of intensive form of government or the concept of welfare state. Thus in 20th century, almost all
states became welfare states. For this, state needed huge army of officers with wide powers.
Therefore, government officers were given law making, adjudicatory and executive powers. So that
they may efficiently executive the government policies and programmes for the people. Then came
21st century, there is a recoil back. We do not want the state to undertake everything and be
businessmen or an entrepreneur or direct everything the economy or social sector. People must
be given initiatives. Therefore, ERA OF ECONOMIC LIBERALISATION, Privatisation and
Globalisation started. Government role in this era would not perhaps decrease because
government still has to perform four major roles:
o It has to act as protector [it has to save people from external aggression and protect the integrity
and sovereignty of the country. It has to act as protector for the disadvantaged sector of the
society];
o It has to act as provider [provider of education, food, health, basic services, employment, economic
development]
o It has to act as facilitator, this role has perhaps increased [for the development of the society, it
must provide infrastructure in order to facilitate the economic growth. It is under a duty to
strengthen the democratic process; facilitate a good system of justice and without this, economic
and social growth is possible, foreign investment is not possible]
o It has to act as a regulator, this role has perhaps increased [it has to regulate competition, market,
the exploitation of the natural resources, every system so that it works in the best interest of the
people. the role which the state was performing and which lead to the growth of administrative
process, it has not diminished in present as well. It might have changed but not diminished].
Earlier, everything was being done by government’s department, but when services were not
properly provided, government started building autonomous institutions for delivering
government services. In the 21st century, the trend is towards contractualization of the services.
 Instead of doing it by itself or by autonomous bodies, government is looking for contracting out
government services. This is the reason of growth of administrative process.
 The paradigm shift in the demand of the people that the government should not only define their
rights but solve their problems and also create conditions, social and economic, in which the rights
of the people can be meaningfully realised. When slavery was practiced in America, the slaves
demanded that the government should define their rights. In the Constitution of America, slavery
was abolished and they talked about no discrimination. However, there was still discrimination and
they realised that just laying down rights is not sufficient. Government must come forward and
solve their problems.
 All problems are solvable and must be solved by the State. All the problems, economic, social,
political, are solvable. E.g. Our family problems are our personal problems and state has nothing
to do with it. In this century, it is considered as social problems and state considers its role to solve
them through family courts. Same is the case with labour courts. In Agriculture, dispute between
tiller and the landlord was considered as personal problems. Now, the scenario is changed. The
problems which required personal consideration back then is considered as requiring state
consideration.
 To control the forces which science and technology has unleashed. It may act as boom of the
society till its regulated property. E.g. atomic powers, if not property controlled, can be disastrous
for the society. E.g. rapid transport. Government cannot deal with such problems with the existing
institutions and it has to establish specialized institutions where the people are experts. This leads
to growth of administrative process.
 Inadequacy of the traditional system of passing law: initially, agricultural societies required very
little law and one required simple law. Therefore, the legislatures with the representatives and their
humble qualification were able to understand and pass law for the society. But, in today’s world,
the quantity and quality of the law has changed. It has become highly technical and dealing with
technical subjects. E.g. cyber crimes. Legislator with their humble qualification cannot understand
and therefore, they have to pass skeleton legislation and give power to the administrative
authorities to frame rules and regulations. If the parliament sits 24 hours and per day, it will not
be able to give us the quantity and quality of law which is required for the governance for modern
state.
 Inadequacy of the traditional judicial system to give us that quality and quantity of adjudication
which is required for modern India: tribunalization of the adjudicatory powers. The chances of
getting in conflict with the State were limited, thus, the courts were sufficient to decide the disputes
initially. In today’s world, the requirement of technical adjudication cannot be made by the original
 constitutional court. The judges are not specialist, they are generalist. The courts would not be able
to give us the quantity and quality of adjudication which is required by the modern state. When
cases before us are argued which has highly technical details, then it appears to us that as
if surgery has given to a barber and medicines to an astrologer. The way out is the growth
of the administrative process and establishment of special courts and tribunals. The chances of an
individual coming in conflict of the administration has grown more.
 Socialization of law: initially, the purpose of the law was to regulate the relationship of the
individual with the state. Now, we are moving towards socialization of the law, meaning thereby,
law is considered to be an instrument of social engineering where the law must take care of every
conflict in the society, private or public, and must find a solution for it. This is not possible without
the growth of administrative process.
 To control the socio-economic forces which neo-liberal economy policy has unleashed: it is an age
of liberalization, privatization and globalisation. It brings its own problem with it. Globalization
has generated many trade problems and problems of capitalism. The biggest problem is
corporatization. Big corporates are so powerful that they can drive the policies of an country.
Corporates generally works on three principles
o Efficiency: competitiveness.
o Economy: they only work for profit motives
o Effectivity: they always work to acquire dominant market position.
Thus, unless one adds two more Es to them, they cannot be serviceable to the society:
Ethics and equity. The social responsibility of the corporates. Fairness and reasonableness of their
actions.

DIFFERENCE BETWEEN CONSTITUTIONAL LAW AND ADMINISTRATIVE LAW

Why early English writers could not differentiate:

 They did not have the written constitution;

 They did not know where to classify the prerogative power of the crown;
 They thought that administrative law is something which is foreign to the common law system.
They though it to be administrative law as found in civil law countries. They though that it violates
equality in the sense that one treats government officer as a special class and put them under special
law and special courts.
 A V Dicey says that we have nothing like administrative law in England. We do not know about
administrative law and do not want to know administrative law.

Keith: he says that difference between the two is logically impossible.

Hewart: he says that administrative law is a constitutional garbage, meaning thereby, there is
nothing like administrative law.

According to them, the difference between the two is of convenience and not of logic and principle
because both interlock closely, overlap considerably, both are mutually exclusive and not
selectively exclusive. They would constitute a whole only when they combine together. Both have
common concerns [good governance]. Good governance is something which is limited by law,
which is effective, efficient and is accountable.

Both of identical mandate [to not abuse the power, service to the people and care about the rights
of the people].

Both have similar trajectory: constitution basically deals with three organs of the government and
administrative law deals with the three organs of the government.

Both have identical horizons: democracy, secularism, socialism, justice, liberty, equality, fraternity
and dignity of the individual.

In democracy, people’s will is the supreme constitution. therefore, why need a constitution.
majoritariainism should be subject to democratic values, otherwise it remains a statistical
democracy.

Differences:

 Constitution is anti-majoritarian. Administrative law is anti-authoritarian. Constitution tries to put

limits to the majoritarianism. And in order to protect the people from misuse of power by the
administration, we need administrative law.
 Constitution law is value-laden document; administrative law is value neutral strategy of
administration: it is based on certain political theories whereas administrative law is not based on
any political theory. It is based only on the fact that administration must exercise its power in the
benefit of the people.
 Constitutional law deals with the government at rest and administrative law deals with the
government in motion.
 Constitutional law is a source of policies and programmes and administrative law is a policy
delivery mechanism.
 Constitution may be either a product of revolution [French Revolution] or it may be a product of
assignment [Britishers gave us Act of 1935 which was the constitution of this country from 1947
to 1950], it may be a product of gradualism [British Constitution is a product of gradualism,
unmodified and unwritten] or it may be a product of agreement [American Constitution], or it may
be a product of consensus [indian constitution]. Administrative law is always a product of
evolution. Basic bones of the administrative law is provided by judiciary. This may be
supplemented by other things such as statute, administrative legislations but basic fundamental
principles of administrative law are product of judicial activism.
 Constitution is a grundnorm and administrative law is only a norm. administrative law is a norm
laid down either by the statute, or by the court or by higher law.
 Constitution is an open textured expression and is descriptive. Administrative law is prescriptive.
Besides this, there is lot of silences and gaps in the constitutions.
 Constitution is a reflection of rights of the people, while administrative law is the implementation
of those rights.
 Constitution deals with the constitutionality while administrative law deals with legality.
 Constitutional law is ought; administrative law is ‘is’.
 Constitution is generally a product of history and tradition and societal concerns, while
administrative law is a product of statutory law, constitution, precedents, higher law and
international law and many others.

Benjamin Field and Whitmore: don’t waste time in differentiating the two because both overlap
and interlock. If one draws two circles, then at some point they would overlap and this overlap is
the area which is a watershed area. Therefore, a student of administrative law and constitutional
law must cover that overlapped area. Overlap: Judicial control of administrative action [Articles
32,226,136, 227, 141, 300, 311]; Part III of the Constitution: it imposes restrictions on the
government and the administration; about constitutional limits on the delegation of power
[legislative and judicial] to the executive; both have to study certain administrative authorities
which are created under the constitution [financial commission art 280, inter-state council 263,
inter-state water dispute authority 202, election commission 329, public service commission 315].
 CONCEPTUAL OBJECTIONS TO THE GROWTH OF ADMINISTRATIVE LAW AND
PROCESS:

When it was rising after industrial revolution to undertake beneficial schemes for the society, they
were given wide powers for search and seizures and arrests. So the people who were trained in the
laissez faire system became apprehensive: with great difficulty we were able to do away with the
kings, now administrative officers have come with great discretionary powers. They feared
jeopardizing their liberty. They did not want the growth of administrative process. They used two
weapons to check the growth of administrative process:

 Rule of law [England]

 Doctrine of separation of powers [America]

RULE OF LAW

The people started talking that this new development of the growth of administrative process
which threatens our liberty and freedom violates rule of law and thus should not be allowed to
grow.

Rule of law is an ethical code for the administration. It is a part of the concept of natural law. Rule
of law means government under law and not law under government [government must also be
under some kind of law or restriction, there cannot be anything absolute and final]. It is an eternal
value of constitutionalism which implies belief in limited government. Any government which is
established under a constitution must be a limited government and limited by constitutional law.
Rule of law is neither a rule nor a law. It is a doctrine of political morality to establish a correct
balance in the society between power and liberty. Perhaps, it was thought earlier that correct
balance could be maintained by a rule of man, but it was negated when such people started using
their powers arbitrarily. So it was negated because it was a rule of decree, the decision of the king
was a law for that particular case only. So came rule by law.

Rule by law: lay down the law in advance. So that one can know the limits of his activities.

Law laid down in advance was found to be not ethical, fair and just. This could not maintain a just
balance in the society. Then it was thought that only rule of law can maintain the correct balance
between power and liberty. Law should be based on certain principles. It was termed as rule of
law.

Where the appointed by the people themselves, then perhaps such a government can maintain fine
balance. So we shifted from monarchy, to dictatorship to democracy. But then it was realised that,
in democracy as well, many of the time it becomes the tyranny of the majority over the minority.
Majoritarian democracy cannot maintain the correct balance. Then it was thought that democracy
which is based on rule of law can maintain a correct balance. Thus, democracies gave way to
constitutional democracies. Therefore we say that rule of law is an inherent attribute of democracy.

Rule of law has been derived from French principe de legalite. The principles of legality. Meaning
thereby, that the law which rules in a society must be based on the principles of legality. It must
be based on certain fundamental principles.

The whole history of human civilization is nothing but the struggle between people and organized
power for their protection.

For the protection of people only, whole concept of natural law and law of god developed. From
there, the concept of rule of law developed.

Rule of law is a very ancient principle. In England, this concept is associated with Edward Coke
[1608, when he was the Chancellor of England]. James I was the King. He was the keeper of king’s
conscious, a chief advisor of justice and keeper of the great seal of king. Coke was trying certain
cases. In those cases, there were certain cases which were directly against the crown. So, king came
to Edward coke and said that don’t try these cases and transfer these cases to me. Coke denied.
King cannot be made a judge in his own cause, it would be a violation of higher law or the
principles of natural justice. King: do you think king is under man? Coke: King must be not under
man, but must be under law and god [rule of law].

Another illustration is the Magna Carta [1215], where the king entered into an agreement with the
parliament. It is considered to be the fundamental law relating to the protection of liberty of the
people. it was said that here is the law which is above the kign and even he is bound by it. I stated
that: No man shall be imprisoned or punished or destroyed or exiled except under a lawful
judgment according to the law of the land.

In eastern jurisdiction, we find the trace of rule of law in Vedas and Upnishads. Veda: Rule of law
is called as dharma and the righteous path. The king is bound by the principles of fairness and
reasonableness as any other person. Upnishads: law is the king of kings. Law is more powerful and
rigid than king. there is nothing higher than law [higher law]. That law must rule the country by
which the weak can prevail over the powerful.

A V Dicey was the first constitutionalist who gave rule of law a concrete shape that could be
applied. He brought the concept of rule of law in reality from philosophy. His two lectures in the
University of Oxford became the fundamental principles of British constitutional law. They were:
 supremacy of the parliament and the rule of law. On these two principles, the whole super-
structure of the British constitution is based and this is called the common law system of
governance. The will of the majority of the people is the suprema lex. It was experienced that even
majority could go wrong sometime. Majority may become permanent majority and may impose
their superiority over minority. So, he said that this majoritarinism must be conditioned by rule of
law. Then only the correct balance in the society can be achieved.

In India, incorporated the rule of law in the form of the constitution and the supremacy of the
parliament is subject to constitution. it lays down fundamental values of the governance.

There is an agreement on the concept but no agreement on the content of the rule of law.

Dicey developed the contents of rule of law by peeping from foggy England into sunny France.
France had witnessed French revolution: there is not equality even though king’s power has been
curtailed. He said that two system of judiciary and governance on the same land is causing
inequality and from here he developed the contents of rule of law.

Four principles of rule of law:

1. Pre-eminence of law
a. The principle of supremacy of law
b. The principle of legality
c. In a society, law must be supreme and not man. He was not in favour of rule by law. Government
must be under law and not law under the government. It means that any law that government
passes may not be law but government is under every law is passes. However high one may be,
the law will always be above you.
d. Law must be same for every person but that does not mean that classification cannot be made
classification is possible but it must be reasonable. Those wo are like must be treated as likes.
e. Every power of the government must flow from law. Whenever any government officer take any
action against you they must show authority of law. There must be some provision under which
power is exercised by administrative authority.
f. All law must come from ordinary legislative organs of the state. It means that every law of which
you are governed must be passed by an elected person. Thus, Dicey was against judge made law,
administrative rule making. All law must come from ordinary legislative organs.
g. Absence of wide discretionary powers with the administrative authorities. Direction is something
where there is absence of law. Admin authorities should have limited powers, which are defined
 and regulated by law. In frame, he was watching that wide discretionary power are there with the
government. According to him, some discretion can be given but not wide because discretion is
‘no law area’.
h. Dicey says that pre-eminence law does not mean any legislature but law which is based on
fundamental principles of common law.
i. Natural law:
i. Principle of fairness: law must be fair and reasonable. Law must not be arbitrary. Arbitrary law
passed b legislature is no law. It can be declared as unconstitutional. [Rupa Huraz case: brought
concept of arbitrariness into article 14]
ii. Fairness means law with the help of which the poor can prevail over the rich
j. Law must be informed by public good. Law must protect the basic right of people. law must be
such which makes the holder of power accountable to the people. all must have equal access to
justice.
k. Law which is government people in the society must be based on generality. It means that it
forecloses many majoritarian options. Law should not be specific: should not be passed by one
person. Generality: less chances of arbitrariness.
l. There should be predictability: law should not be vague.
m. There should be prospectivity: law must always be for future application and it should not be made
for retrospective operation unless it is reasonable and is on fair basis. In criminal law, retrospective
criminal law can never be made.
n. From this, Dicey concludes that in france, there is violation of this principle of law.
2. Pre-eminence of equality before law.
a. Every person must be subjected to same system of law and the same system of courts. Common
man and government were subject to different courts. He says nobody can enjoy special privileges.
In france, government servants were enjoying special privileges.
b. Everybody irrespective of his status, must be subjected to same system of courts which are
independent and decides the matter independently. He was saying that court system must be
independent because they aree the real protector. He saw in France that court system was not
independent and impartial.
c. He was against special courts. He did not want special system for administrative purposes. He
want unified judiciary. In India, HC and SC exercises jurisdiction over administrative authorities.
Thus India does not violate rule of law by having special courts like labor courts etc. decision of
such courts can be challenged.
3. Pre-eminence of equality:
 The courts must be independent and impartial, otherwise there is no justice. In France, the Judges
are appointed and governed by the government and thus they are not impartial.
 There should be no special courts. There should be only one system of court and everybody should
be subjected to it.
4. Pre-eminence of accountability:
 Every administrator must work within the limits of his power, otherwise he must be held
accountable to the people;
 Every government officer must exercise the power for which it is give, other he must be held
accountable;
 Every government officer must exercise the power with due process, fairness and justness.
 Dicey says that the common courts must hold them accountable. Their cases must be tried by
common law courts.
5. Pre-eminence of common law rights:
 That the fundamental rights of the people must not flow from any legislation or any book, they
must flow from the common law of England, i.e. natural law. The source of fundamental rights is
the human person himself because of which he has certain inalienable and inherent rights. Habeas
Corpus case: Article 21 is the source of the rights. Constitution can only be the reflector or
consequence of the fundamental rights.

Purpose of rule of law:

 To limit the power of the government: to control the arbitrary, capricious and oppressive exercise
of administrative state power. The law is always above the administration.
 To fortify the fundamental rights of the people
 To control many majoritarian options in democracy.

Contents of rule of law: Dicey did it to foreclose the majoritarian option. But he menat that rule
of law would be a limitation on the sovereignty of the parliament. It would be a limitation only on
the exercise of administrative powers. Two guarantees that Parliament would not misuse their
powers:

 Wisdom of the people: the way the people elect their representative in a democracy. It supposes
that the people would select them wisely
 Values and principles of common law: common law means the customs and traditions of the
people recognized by the courts in the administration of justice. It places a restriction on the
majoritiarinism of the supremacy of the parliament.

These limitation are vague, so the system of constitutional democracy developed.

Buchman:

 the central normative principle of rule of law is generality: if the law is general, then there is a rule
of law, if the rule is specific for any particular person or a group then there are chances of
discrimination and bias and thus it would not be a rule of law principle and it would cease to be
objective. It must be the same and equally apply to all. All does not mean everybody. Classification
must be based on reasonable differentia which must have a reasonable relationship with the object
that the class tries to achieve. Why generality is the core value of law:
o it forecloses majoritarian options. If the majority has the temptation of passing a law specially for
a specific minority, they would not be able to do it.
o More generality more acceptability:
o More generality, more oppressiveness and discrimination
o More generality, more inclusiveness in the society: society becomes a whole when the law for
everybody is same.
o More generality more individual freedom. Law is not for the individual. It has been made keeping
the ultimate benefit of the society in mind.
o More generality, more contractual freedom:
 Law must be fair: fair is reasonable and rational. Fair is something which maintains a property
balances between the instrument of law as a means to achieve an end. It must be based on the
doctrine of proportionality. Wednesbury’s reasonableness: how to decide that a particular law is
reasonable or not. The test laid down is that if the law is so outrageous in defines of logic and
standards of the morality of the society and that no sensible and a reasonable man can come to
that conclusion, then the law would be unreasonable.
 Law must be prospective: always for future application. Criminal law cannot be retrospective. Civil
law can be retrospective. However, there must be a power to make a law with retrospective effect
and there must be some social purpose for retrospectivity.
 Law must be impartially applied: the judicial system must be independent and impartial. It must
be open and transparent. There should not be any exception unless expressly provided by the law.

How UN defines rule of law:

 Rule of law is a principle of governance in which state and all entities, public and private, are
accountable to law publically promulgated, equally enforced and independently adjudicative. Law
must be known to the public, equally enforced by the executive and independently adjudicated by
impartial courts. Law must are consistent with the human rights norms and standards. System
must be independent and law based on human right.

Indian Constitution and rule of law:

 Supreme Court has held that rule of law is the basic feature of the Indian Constitution. it has
become a juristic norm on the basis of which court shall have power to declare any act as
unconstitutional.
 Rule of law is reflected in the preamble. Law must be based on the ideals provided in the preamble
of the constitution.
 Independence of judiciary and power of the judicial review. They are also held to be the basic
feature of the Indian constitution.
 The whole chapter on fundamental rights is a limitation on the power of the legislature and thus
the law must be based on the international standards of human rights.
 Article 21 contains due process. A. K. Gopalan v Union of India case: any procedure laid down
by the law is a good procedure. In Maneka Gandhi: law means a law which is based on certain
fundamental principles of justice, fairness and reasonableness. Rule of law principles are imported
to Article 21. Procedural and substantive due process.
 300A: property cannot be taken away without the authority of law.
 The courts have held that the british doctrine that king can do no wrong or that the king is not
bound by its own law is not applicable in India. Government is bound by the law in the same
manner a person is bound unless exempted expressly or by necessary implications.

Now rule of law has become a positive concept. In 1959, international commission of Jurists,
meeting in Delhi, made a declaration that positive and socio-economic contents. They said that
rule of law means existence of such socio-economic, political and cultural condition in society by
which every human person has equal and ample opportunities to develop his personality to the
fullness.

Under rule of law, we are not concerned about who rules, but also about how he rules.

In America:
Doctrine of separation of power: if violation, the freedom and liberty of people cannot be safely
guarded. It is fundamental principle of American constitution. the purpose of this doctrine is to
protect people from arbitrary, capricious and oppressive exercise of the power by government.
This doctrine is also derived from natural law. It is a conception derivation from that higher law.
Montesquieu gave it a concrete shape. He got content of his theory from England. At that time,
there was monarchy in England, powers were misused, excecised in arbitrary manner and thus
there wa a movement agiainst this. Thwere was a agreement between parliament and king that
parliament will exercise all legislative and taxing powers. Judiciary will exercise judicial powers.
Kiing will exercise executive power.

In 1748, he wrote a book called espirit de lois, i.e. spirit of the laws and in this, he wrote when the
legislative and executive powers are united in the same person or body, there is no liberty. Again
there is no liberty if the judicial power be not separated from legislative and executive powers.
When judicial power is joined with legislative power, the life and liberty of people will suffer for
that the judge will be legislator and judge both and where the judicial power is joined with executive
power, they may act with violence and oppression.

There will be an end of everything where the same man or body to exercise all the three powers.

People in America said that administrative actions are given law making and adjudicatory and
executive powers. This is against freedome and liberty of people.

When admin process starts rising, everybody criticised. People from England come to America to
protect rights, liberties and righteous freedoms.

Thesis behind doctrine of separation of power: if anybody is violating your right, all 3 organs
should co-operate in helping you out. If one person has all the powers, he can put you in jail
anytime.

Use of this doctrine in democratic setup: Jefferson [architect of amercian constitution]: and
Madison: accumulation of all power, legislative, executive and judicial in the same hands, whether
of one, few or many and whether hereditary, self appointed or elected may be pronounced as the
definition of tyranny.

Jefferson: concentration of legislative, executive and judicial power in the same hand is precisely
the definition of despotic government. It is no alleviation that these powers will be exercised by
plurality of hands and not be a single person because 173 despots will be as oppressive as 1. This
is known as elected dictatorship. This, it is not like that in a democracy. There is no chance of
dictatorship.
 What kept check on legislature: difference lies in 2 thing:

 Wisdom of people in electing their representatives

 Unilateral values of common law, tradition, custom etc.

In India, democracy is there, but soil still remains undemocratic.

Secret of human liberty lies in the separation of powers. In France, there is no security of the
liberty of people because there was monarchy at that time and English men are enjoying liberty.

According to him,

 separation of power means separation of the organs exercising the powers.

 One organ must not exercise the functions of the other organs of the government. There must be
total separation of functions
 There must be separation of personnel who constitutes the government. Executive should not sit
in the legislature. Ministers should not be the members of the parliament [in the classical sense].
In America, there is a presidential form of government. Congress represents legislature, President
represents executive, SC represents judicial powers. In India, only the executive power is vested in
the President of India. Other powers are not vested through the Constitution. in the parliamentary
form of government, the classical separation of power does not hold implications. Because here
we have a parliament system where the executive is the inherent part of the legislature. Instead of
parliament directing the executive, executive directs the parliament. The doctrine of separation of
power means independence of the judiciary only. Because judiciary is separate and the other
powers are combined. Execulature and judiciary are the two organs in parliamentary form of
government. Independence and impartiality of the judiciary is the only way to secure the
constitution. In America, they have mutually checking arrangement. Both houses of the congress
check each other. Lower house is constituted based on population of the state. Upper house is
based on the equality concept, each state have 2 votes. President check legislature: exercising veto
power. President checks judiciary by appointment the judges. The proposals are made by the
president, senate may or may not accept it. He also exercises law making powers. He has power to
issue notification and they have the power of law. He has the treaty making power and in exercise
of that power, the president can even modify any provision of law. Still, strict separation is not
possible. Congress passes budget and if the budget is not passed, president cannot function. They
have the power to pass procedural laws which the judiciary has to follow. They have the power to
fix the number of judges. They have the power to establish special courts and give them
 jurisdiction. They have the power to impeach the president and the judges. The doctrine of
separation of power in a classical sense is not applicable anywhere in the sense in which
Montesquieu took it. Judiciary interferes into the functioning of the other organs as they have the
power to declare on the constitutionality of the laws. In 1803, by Marbury v. Madison, the court
held that they have the power to declare a law unconstitutional.
 In India, the doctrine of separation of power has not been specifically recognized. Only executive
power is vested and other powers are not vested. Therefore, president exercises legislative powers.
Article 123: ordinance making power. Article 357: legislative powers during Emergency. Judicial
functions e.g. deciding the disqualifications of the MPs, deciding on the dispute about the age of
the high court judge, he appoints judges. Now, the Court has amended the situation and now
collegium suggests the name of the judges. Government can delay the appointment.
Legislature interferes with the functions of other organs as they can impeach president and the
judges. Judiciary can interfere with both the organs of the government as it can declare their actions
as unconstitutional.

Has the doctrine lost relevance in the modern system of governance? No, the logic behind the
doctrine is still valid though the application may not be valid. If one combine all the three powers
into one hand, it would lead to absolutism on the people. therefore, not separation but mutual
check and balance is necessary. Divide the government against itself: the logic is still alive. Put
power against the power. Only power can check power. John Randorf: one may cover whole
constitution with limitation, it means nothing. Because only power can check power. Logic behind
this doctrine is not separation but is mutual check and balances. Separation of power in 21st century
means inter-dependence. Separation does not mean water tight Compartmentalisation of the
government, but interaction. It means not autonomy of organs, but reciprocity, they must respond
to each other. Threat to liberty lies in blending and no in connecting the power. Not amalgamation
or assimilation but interaction.

We are not talking here that one must check the other, we are concerned with co-operation of all
the organs of the government for achieving public good. Wer are not talking about co-operative
federalism, we need not fight on power but concerned with public good. For co-operation, if we
exercise the power of the organs of the government, it does not mean violation of separation of
power.

In America, residuary power belongs to the state and the people and there is a weak centre. We
wanted opposite. America has against become a strong centre country. Union Government has
become strong by exercising vast powers: we have move away from separation to co-operation.
 In America, they use the doctrine of separation of power to check the process of growth of
administrative power. Therefore, they argued that first growth of administrative process should
not be there, but if it is there, give them as little power as possible. They is known as red light
theory. Now, they say that given them as much power as possible but keep that power under
control [green light theory].

Sources of power must be different but the power that flows from those sources can flow in one
channel, there is no violation of rule of law and separation of power. Law that checks them is the
administrative law.

Droit Administratif:

 Droit: law
 Administratif: administrative
 In 1789, French revolution happened. Napoleon became the council general and the monarchy
was defeated. King the running the whole country with the aid of King’s court called the Conseil
Deu Royale. It was an advisory body and also acted as King’s court to decide big disputes among
landlords. Small disputes to other ordinary courts. They felt no importance as they were given only
petty matter, salary was meagre and no court fees. So they interfered with administrative scheme
whenever a case came before them. They tried to hamper or delay the administrative process. So
when Napoleon became the general council, he wanted to bring socio-economic reforms in the
country and he wanted a system which does not hamper his reforms. Therefore, he abolished
Consein deu Royale and he established separate court system to decide administrative dispute. This
developed two system of law and courts came in existence. One system was called droit civile,
where the dispute of the people inter-se were decided. There were district courts, appellate court
and Civil Supreme Courts. They decided disputes according to the laws passed by the French
Parliament. In order to quicken the pace of reforms, he established administrative courts to decide
disputes among the government servant about their service conditions and of private people with
the administration. The law developed by the Conseil D’ Etat [established in 1799, In the
beginning, it was not a court. Its function was simply to advice the minister. It was a mere advisory
body. Initially, anyone having dispute with the administration was to file a petition to the minister.
There was no direct filing, direct case or direct decision. Right at this time, Dicey was observing
the system and he said that how justice is possible in this system. It is something that is in violation
of rule of law as the court’s are not independent as they are part of the executive itself. In 1872,
 Napoleon passed an executive order called Blanco executive order. In this, Conseil D’ Etat was
made a court but no case could be directly filed before the court. The case was to be filed before
the minister, he would go through it and only on finding some merit in the case, it would go the
court. In 1889, Another executive order was passed and by this direct filing before the court was
allowed]. Precedent system was followed. This law was called the administrative law.

CLASSIFICATION OF ADMINISTRATIVE ACTIONS:

 Conseil Des Conflict: which case will go to administrative court and to the civil courts. They have
developed the theory of governmental liability. Administrative function: it can be classified into 4
categories:
o Quasi legislative actions
o Quasi-judicial actions
o Administrative actions
o Ministerial actions
 Why study classes of actions? The type of action will determine the extent of power of judicial
review of the courts. If the action is Quasi-legislative or administrative, judicial review would be
less. If the actions quasi-judicial action, judicial review will be of first order. If the action is
ministerial action, no judicial review.
 Quasi-Legislative Action: those actions which are administrative but they have certain trapping of
law as passed by the legislature. They have the trapping of the ordinary laws. This is called the rule
making actions of the administration or delegated legislation. Administrative authority as such
cannot make law, but because of certain difficulties, they have started exercising law making
powers also. This power must be specifically delegated to them by the legislature; it should not
violate the principle of the constitution which says that the essential legislative powers cannot be
delegated. Only ancillary powers can be delegated. How to determine that an action is quasi
legislative:
o Rule making action is a essentially an administrative action
o Generality: Rule making is often general in character
o Predictability: if the action is such which limits one’s actions then law must be specific and
predictable.
o It must be prospective.
o It must be published.
o Principles of natural justice are not attracted: it is not necessary to consult every subject of the rule.
Noting and hearing are not necessary in this kind of actions
o Such power cannot be sub-delegated unless authorized by the legislature.
o There is no duty to give reasons.
o Based on policy and not objective criterions.
o Express newspaper v Union of India, 1958: government passed working journalist wage fixing
act. A wage board is created which is an administrative body. They wer given power to decide the
wages of the working journalists. Wage board heard the arguments of the working journalists,
accepted certain documents to prove their claims, invited the owners of the presses and papers
and they asked them about the demands of the journalists. They showed their profits and expenses
and submitted their own documents. Board allowed the lawyers of journalists to cross-examine
the owner and vice versa. After all the hearing, Board decide a particular wage for the journalists.
The other party argued that it is not a law making action but an adjudicatory action, so it is a quasi-
judicial action. But the action had all the characteristics of the rule making actions. The SC did not
decide on this matter. Where a rule has to be framed which is to be based on facts, which are to be ascertained
objectively, then that particular rule which is made would be under a rule making power of the administrative.
o State of Punjab v tehel Singh, 2002: whether the action of the administrative authority
determining the area of the Gram Sabha is quasi-legislative actions? They had to action evidences
for deciding the same. It was held to be quasi-legislative action as it is based on policy and there is
no objective criteria which would be applied as it is in the courts. The courts generally do not
interfere unless there is a violation of any constitutional provision of express provision of a statute.
o Union of India v Synamite India ltd, 1987: government wanted to fix the price for essential
drugs. Whether fixing of the price is what function? It being a matter of policy, therefore it is quasi-
legislative decision.
o Automotive Tyres Manufacturers Association v Designated Authority, 2011: under the anti-
dumping law, to decide on the dumping duty, what kind of a function it is? It is a quasi judicial
authority as there is an objective criterion and anti-dumping law has to be applied. They need to
take evidence as to the injury to the local industries. There is a provision of appeal also.
o Difference between law passed by the legislature and law made by the administrative authority:
 Nomenclature: law passed by the legislature is considered as statutes or legislation or supreme
legislations. Law by administration is called rules and regulations and are sub-legislations.
 Source of the power is different: legislature  constitution; administrative  statute
 Quasi-Judicial Action: administrative actions having some characteristics of judicial action.
Committee on Ministers Power appointed in 1932: government appointed this high power
committee to decide the power of the ministers when administrative law was rising. A question
was asked that what is a quasi-judicial action:
o an administration action having trapping of judicial action
o there is a lis [dispute], there is dispute between two parties and one is a deciding party. There can
be only one person as well in administrative adjudication as well. Lis can be presented by only one
party to the judge.
o There is a presentation of the case
o Deciding the question of facts by presenting evidences.
o Court decide the laws through legal submissions.
o They dispose of the matter by applying the law to the facts
o In quasi judicial actions, point 2, 3, 4 are there but deciding the question of law may be there may
not be there [Point 5]. Point 6 is never there. These actions are taken by applying the policy to the
facts. They decide it on their own discretion. This criterion is no correct but is fallacious. E.g.
Income tax courts: but they exactly act in a manner in which courts act.
o 2nd test is known as Lord Atkin’s test. It was laid down in R v. Electricity Commissioners, 1924.
He says that where an administrative authority has power to decide on the rights of the people and
is under a duty to act judicially, its actions will be quasi-judicial and court will issue certiorari to
quash the action.
o When can we say that the authority is under a duty to act judicially?
 Express provisions of the law: if the law imposes an obligation over the authority to take evidences,
hear the parties and decide the matter. e.g. province of Bombay v. Khusal Das Advani, 1953:
Bombay land acquisition ordinance, 1947: government can acquire any land if in its opinion it is
necessary and expedient to do so. Bungalow was acquired for residence of a minister. What kind
of a power it is? As the Act says the authority is not under a duty to act judicially, it was deemed
to be an administrative action.
 Radhe shyam v state of AP, 1959: municipalities act: Section 53A: if the municipal corporation
is not working efficiently, then government shall have power to suspend municipality for 18
months for improvement. Section 57: if the government decides to suspend the municipality for
an indefinite period, then they shall have to give municipality notice and hearing. In 53A: the
authority is not under an authority to act judicially, so the action is administrative. However, under
57, the authority has to act judicially, so the action is quasi-judicial action.
o Sometime, duty to act judicially may be implied from necessary implications. Then also the act
would be deemed as quasi-judicial. E.g.
 One has to see the nature of the functions and the framework of the authority. E.g. if there is any
dispute, authority is asked to make inquires first, they have to apply a law to a particular fact, law
also provides for appeal. If these characteristics are there, no matter the law may be silent, but the
 authority is under an obligation to take judicial actions. The authority has to act critically and
judicially. E.g. Anti-dumping duties.
 Where the administrative authority has the power of a civil court. Then it shall be presumed that
authority is under a duty to act judicially.
 Seriousness of the consequences of the actions of the authority: where there is no lis, there is no
appeal, authority does not have the coercive power of the court, but where the action of the
authority has serious consequences of the person e.g. loss of property, loss of reputation, stigma,
or any adverse serious consequences of civil nature, then no matter expressely authority is not
under an authority to act judicially, but it shall be implied that it is under a duty to act judicially.
E.g. Lord Hewitt, R v. Legislative Committee of Church Assembly, 1928: when one can say
that authority is under a duty to act judicially. He says that look to the express provisions of the
law and not the implied provisions. And for this decision of lord Heyward, the application of the
principles of natural justice to administrative decision were overshadowed for a long time. It would
be deemed as administrative actions and thus the courts would not interfere. Lord Reid, in the
case of Ridge v. Baldwin, 1964, House of Lords, duty to act judicially may be inferred from
circumstances also.
 Position in UK
 Nakuda Ali v Jayaratne, 1951: government has advertised that anybody who is interested in running
a coal mine can apply for a license. Ultimately, they decided that A will get the license. Question:
what kind of a function it is? It was held that granting of a license is an administrative action for
being a matter of policy as no one has a right to get license. It was also held that revoking of license
is an administrative function as they are not deciding the rights but deciding something based on
policy, thus authority is not under a duty to act judicially.
 R v. Metropolitan Police Commissioner, ex parte Parker, 1953: taxies are to be registered and no
person can drive a taxi unless he has license. The authority under law has the power to cancel the
license as well. Law does not say that before cancelling the license one has to give hearing. License
of Parker was revoked on ground of lack of efficiency. He was deprived of his livelihood without
giving any opportunity to explain. Court held that it is an administrative action as law does not say
that notice and hearing is to be given before cancelling the license.
 Cooper v. Wandsworth Board of Works, 1963: municipal rule that anybody who is constructing a
house, he has to give a 7 days notice to the municipal committee. Law says that if the notice is not
given, municipal committee has the power to demolish the building. Law does not say that before
demolishment, they have to give the person notice and hearing. Cooper was making a house. His
1st storey was completed. While building the 2nd storey, a squad from the municipal committee
 came and demolished the building. Why? Demolishing the building is an administrative function
as law does not require giving notice and hearing. Cooper claimed that he did sent the notice but
somehow it did not reach the municipal corporation. The case went to the House of Lords: it is
true that law does not require notice and hearing, but what about the injustice being done to the
person. His money and effort is gone. Where the law is silent, common law will supply the
omission. Some kind of a hearing shall be implied in law no matter that it is not expressely laid
down. This case stands for the proposition that even if the action is administrative, notice and
hearing is not required by law, but if some apparent injustice is being done, the authority may not
be acting judicially but it must act judiciously.
 Ridge v. Baldwin, 1964: a person was in the police force. He had a good service record. Somehow,
his name was involved in a case which was going on in a court of law, where there was a charge
against him that he has tried to hamper the course of justice. The court acquitted him but made
an adverse remark that person of his stature should not have done this kind of thing. There is a
Police Act. There is an administrative authority [a watch committee] under it. They have the power
to appoint a police officer and also to dismiss him. There is not provision that before dismissing,
the watch committee should give such person notice and hearing. On the basis of the remark, the
watch committee took suo moto action and dismissed him. He challenged it. What kind of function
it is? He argues that it may be an administrative function, but the stigma attached to it huge. House
of Lords stated that where even if a function is administrative but if the administrative action have
serious consequences for a person [loss property, stigma, loss of reputation], then the authority is
under a duty to act fairly: one cannot take a decision without notice and hearing to that person.
Therefore, this case stands for the proposition that the distinction between administrative and
quasi-judicial function has become very thin is gradually obliterated.
 Position in India:
 A. K. Kraipak v. Union of India, 1969: India also started following the change. The forest services
in J & K were considered to be state services. But later on a law was passed and it was made a
central service. Under that Act, there was a person who was assistant conservator of forest, he was
appointed on temporary basis. The government decided that we will hold the selection committee
and we will make certain promotions to the forest service. But they decided that all the persons
who are still working in the cases, only service records will be considered and interviews will not
be conducted. A selection board was constituted under the forest Act by the Central government.
The conservator of forest who was officiating by designation by made a member of the selection
board. That assistant conservator was made the member. Application called. People applied for
the post of forest conservator. That person also applied as he wanted a permanent job. Junior
 colleagues of him also applied. He was writing their confidential report. The record of all the
person were brought before the selection committee. His file even came before the court. He left
the room during his file’s turn. Then he again joins the Board. Who is to be appointed? He was
selected for the post of conservator of the forest. Central government accepted his selection. It
was challenged before the SC. There is a gross violation of the principles of natural justice as a
person has been made judge in his own cause. Though he deserved it being a senior member, but
justice should not only be done, but it should be seen to have been done. In this case, the second
principle is violated. Court asked as to what kind of a function is it? It was argued that principles
of natural justice are not attracted for it being an administrative action. Other party argued upon
the injustice done to other applicants. The SC changed the whole law based on Ridge v. Baldwin
case and held that no matter the action may be administrative but if the consequences are bad,
then authority is under a duty to act judicially, or at least judiciously. One cannot acted in complete
disregard to the principles of natural justice. Now the distinction between quasi-judicial and
administrative has become thin for the purposes of fairness and reasonable.
 This was followed in Maneka Gandhi’s case: as the act of impounding of license affects the rights
of the people, therefore fairness demands that hearing should be given. No matter that the action
is administrative.
o Fundamental characteristics of quasi-judicial actions:
 There is a lis [two parties are not necessary. It is enough that there is a proposition from the side
of the administration and there is an opposition from other party];
 The decision must be made on objective criterion. The decision should not be made on subjective
satisfaction or total discretion.
 Authority must be under a duty to act judicially and duty to act judicially may arise from law itself
or may be implied if it has a serious consequence for the person concerned.
 The authority is not bound by the precedent.
 Quasi-judicial actions cannot be delegated because law gives a particular office the power to decide
a matter judicially. They have given such power as they trust the efficiency of such person.
 There is not power of review or recall. Once the decision is given, they become functus officio.
Only alternative is going before the court.
 No strict rule of evidence is applicable. Authority is simply required to render decision by the
minimum procedure of principles of natural justice. Rule of evidence act does not apply.
 Principles of res judicata applies in case of inter vires decisions.
 Administrative action: Ram Jawaya Kapur v. State of Punjab, 1955: in this case, Justice Mukherjee
stated that ordinary executive power connotes the residual of governmental functions that remains
after the legislative and judicial functions are taken away.
o Characteristics of administrative decisions:
 They are residual decision
 Generally there is no lis.
 It is based on subjective satisfaction rather than objective criterion. Authority is simply required
to consult its own mind.
 It lacks generality. It is concerned with the treatment of only 1 problem.
 It does not decide a right though may affect a right.
 It can be delegated.
 Judicial review will lie against an administrative action if the action is unreasonable and ultra vires.
o General examples of administrative actions:
 Appointment of trustees of a temple. Government wanted to control the administration of temple
in public interest. Government published a list of trustees. Such decision was challenged for
arbitrariness. Court held that the power is administrative unless one brings some important
evidences to show that how this decision is arbitrary. Similarly, election commission has a power
to cancel the result of the election if they feel that elections have not been conducted fairly. The
person who won the election challenged such decision on the ground that I was not given any
hearing. The court held that no matter the action is administrative, but reasonableness demands
that person should have been heard. In S. L. Kapur v. Jagmohan: power was given to the
government to suspend a municipal corporation if it is not working properly. In 1981, without any
notice and hearing, the corporation was suspended. Challenged in court. Court held that no matter
the action is administrative but the authority must act judiciously and they cannot suspended the
corporation without any notice and hearing as it carries some kind of stigma. Distinction between
quasi-judicial and administrative action has withered away and we are being liberated from the
psittacine incantation of administrative action. We have been liberated from the parrot like
repetition of the word administrative action as government always claims its decision as
administrative action to save itself from judicial review.
 Power of the collector to give permission to the tribal for transfer of agricultural land to a non-
tribal: it is an administrative action and therefore elaborate provision of notice and hearing is not
necessary.
 The power of the government to grant or refuse a reference of an industrial dispute to an industrial
tribunal: courts held that it is an administrative power and only minimum natural principles are
not required.
 Internment and externment orders: power has the power to either intern or extern a person. In
the interest of peace and tranquillity, the police may order a person to not leave a city [internment];
not to return to a city [externment]. It was held that it is an administrative power but police cannot
exercise such power in an arbitrary and unreasonable method.
 The decision of the chancellor in case of difference in the recommendation of the selection
committee and the executive council of a university. Appointments is made after the executive
council accepts the recommendation of the selection committee. If the recommendation is
rejected, then matter shall be referred to the Chancellor whose decision would be final. A lecturers
matter reached Chancellor, but he rejected his appointment without giving him notice and hearing.
It was held that decision of the Chancellor is administrative and therefore elaborate procedures
are not necessary.
 Termination of the service of an employee on probation: law provides that if a person is appointed,
he would be put on probation. After it is over, the authority is to decide whether to retain that
person or not to retain that person. If they decides not to retain that person. It is an administrative
action and thus notice and hearing is not necessary. The decision is based on the subjective
judgment of the officer concerned. However, where there is a charge against the probation which
will carry a stigma, no matter the action is administered, yet, the officers must act judiciously and
give him notice and hearing.
 Entering names in surveillance registers. One person challenged his name in the register on the
ground that my right to life and personal liberty is violated and I have not been given any notice
and hearing it is an administrative function as authority by law is not under an obligation not act
judicially. If hearing is given in this case, there would be a total loss of the administrative action.
The court will interfere at a minimum level.
 Granting a license: many people applied for licence of petrol pump. One person challenged his
rejection before the court. It was held that it is an administrative action and one has no right against
the government to get license. But if the license is given arbitrarily, then it can be challenged.
 Revoking a license: granting a license is an administrative action but revoking a license is quasi-
judicial as one’s rights are being violated.

Delegated Legislation [Administrative Rule Making/Administrative Legislation/Quasi-

Legislation]
 The law which comes from the chambers of the administrators is known as administrative
legislation. From 1937-1977: parliament passed only 32 legislations, under which the power was
delegated to administrative authority and they passed 25414 rules and regulations. The law passed
by the Parliament is incoherent if read without regard to the administrative rules and regulations.
There is growing tendency to pass skeleton legislations. E.g. Essential Commodities Act, it has
only 16 Section, rest everything is regulated by the administrative rules. Import and Export Act,
1947: only 8 sections.

We call it delegated because constitution gives law making power to legislatures only. Therefore,
the doctrine of separation of power requires that executive should have no power to pass law.
Thus, it is not their power when they makes rules and regulations. They undertake the power of
legislature while making rules and regulations.

Earlier, the functions of the State were highly limited. Therefore, the parliament was able to give
us the quantity and quality of law which was required for good governance. Now, governance has
become intensive and thus the quantity and quality of law required for functioning of the modern
States cannot be met by the legislatures.

Delegated Legislations:

 When an instrument of a legislative nature is made by an administrative authority in exercise of

the powers delegated to them by the legislature, it is delegated legislation.
 Salmond: when legislation proceeds from any other authority other than the supreme authority
and is dependent for its continued existence for validity on the will of the supreme authority, then
it is delegated legislation.
 Outsourcing of law making power by the legislature to the administration and the exercise of this
power by the administration is delegated legislation.

Reasons for the growth of delegated legislations:

 Delegated legislation is a natural concomitant of intensive and welfare form of government.

During British rule, government was kind of Police government who only protected people and
maintained law and order. After Constitution, India became a welfare states and thus government
had to undertake various other functions like employment, facilitate business, create conditions
for social justice, had to remove inequalities. Therefore, the amount of law required for these
activities was so enormous that it was not possible for the government to pass all the laws. They
only passed laws creating a basic framework leaving the other rule making power to the
 administration. After globalisation, a global space which requires regulation has been created which
has added one more dimension to delegated legislation.
 The fact that the law falters before the specifics of life. So, there was a need for individualisation
of justice. Generality of law may not do justice in every specific situation.
 Need for socialization of law: parliament makes laws based on research. Research may not be
genuine. Therefore, the ultimate law may not fulfil the requirement of the people and law will go
into disrepute. Sometimes, immediate amendments are done. Thus, the best law can be made only
if those people who are going to be governed by the law are made to participate in the making of
the law. This direct participation is not possible when the parliament makes law. Only indirect
participation is there through representatives. The first draft of the law must come from those
people who are going to be governed by the law. This is even not possible. E.g. under the Mines
Act, the law relating to the safety in mines. The first draft of the law must come from the owners
of mines. They are at the helm of the affair and understand their needs. The draft is submitted to
the inspector of mines. Ultimately, it comes before the final administrative authority and rules are
made. This procedure is not possible with Parliament. Thus, socialization of law demands that
administrative authority be given the law making powers.
 Where experimentation is needed: where the requirement is that law should adapt to the changed
circumstances. When constant modification is required, it is possible only if the law making power
is given to the law making authorities.
 Technicality of law: during British rule, the kind of law required was not technical. Today, law has
become very technical and legislators cannot under such technicalities. E.g. Nuclear power.
Parliament can made expert committees and give them the power to make laws. E.g. Trade by
Corporations, intellectual property, education.
 Where a crisis legislation is needed: where one needs law immediately. E.g. Flood situation, spread
of epidemic, immediate law and order situation. Administrators need to be given the power for
such situation.
 Where secrecy is needed: sometimes secrecy is necessary for the effectivity of law. Law of the
parliament cannot be kept secret. No one should know the law unless it comes into effect. E.g.
demonetisation, Zamindari Abolition laws.

Benefits of Administrative law making:

Inherent dangers of Administrative law making:

 Wide delegation may subvert the constitutional order: democracy, wherein all the laws must come
from the elected representative; separation of power and rule of law
o It violates separation of power and rule of law [law making power is given to administrative
authority conclusively combining two powers into one. It violates rule of law which means that
law must come from only legislature and all should be bound by it. However, due to delegated
legislations, rules are coming administrative.]
o It disturbs the delicate constitutional balance which has been created in the Indian constitution:
balance between the powers [their powers and function have been defined. When one organ of
the government is made strong, then the balance is disturbed. This danger is inherent in
parliamentary form of government as executive is the part of legislature and dominates it. No law
can be passed by the legislature unless approved by the executive. This is not possible in the
presidential form of government].
o It violates the constitutional trust: all the legislative powers, all the taxing powers will be decided
by the elected representatives. Now, the law is coming from the administrators which violates the
trust.
o It may be erosive of democratic ethos: law made by the executive and enforced by it is a definition
of absolutism and sounds absolutely undemocratic. For all the problems, one must look to the
elected representatives. In America, there is an opposition to an institution like ombudsman. Why
to go to ombudsman and not elected representatives. It lowers the level of trust which one has in
the elected representatives.
o Executive isolated from popular pressure and insulated from parliamentary audit may make law
which is less acceptable and effective: in 2010 Prevention of Torture Bill was presented. Section 6
provided that no police officer can be prosecuted under this Act unless there is a permission of
the central government or the state government. Lok Sabha passed it, but owing to public pressure,
it could not be passed in Rajya Sabha.
o There is no parliament audit. There is process of examination of Bill by committees.
o Social scrutiny is not possible
o Administrative rule making sometimes become a source of corruption and bad governance.

There must be rational delegation of power. There must be a mechanism for proper exercise of
power. There must be proper vigil by the parliament and review by the court.

Constitutional Ethos of delegated legislation:

 Constitution neither allows nor prohibits the delegation of law making power;
 From the scheme of the constitution, it appears that our constitutional is not averse to
administrative rule making.
o Indian constitution does not recognize separation of power in the classical sense as recognized by
the American constitution.
o Article 13(3), it defines what is law. Law means and includes ordinance, order, bye-law, rule,
regulation, notification, customs and usages having the force of law. Highlighted refers to
administrative laws.
o Article 353, 357: if a president rule is declared in any State, then, law making power of the state
legislature is taken over by the parliament. Parliament has the power to delegated the power to the
President and president has the power to delegated such power to the officers.
o President has the ordinance making power. Executive can make laws.

Constitutional Objections to the delegated legislation:

 Delegation is a threat to the liberty of the people because we are giving powers to the executives
which has the power to executes it also
 It violates separation of power and rule of law.
 It violates the theory of constitutional trust.
 It violates the principles of democracy

Delegated legislation term is used in two senses:

 Out sourcing of legislative power: when the parliament passes the law, it is known as enabling Act
or parent Act if it contains the provision for delegated law making power.
 The exercise of out sourced power by the administrative authority: when administrative authorities
makes rules and regulation as an output of the delegated power.

Parliamentary legislation v. Executive Legislation:

 Nomenclature: one is called as Act and Statute; other is called rules, regulations, ordinance, bye-
laws, notification
 Authority of law which emanates from legislature is called as legislation. Authority which emanates
from administrative authority is called as delegated legislation.

Classification of delegated legislation:

 Title based classification:

o Law of parliament is called statute and Act
o Law of administrative authorities is known by multiple names. Rules of municipal corporations
are known as bye-laws.
 Nature based classification: keeping in view the nature
o Normal delegation: where the legislature has performed essential legislative functions and
delegated subsidiary functions. Essential function are two:
 Laying down the policy of law
 Enacting the policy into a binding rule of content: guidelines are made.
o Exceptional delegation: Henry VIII clause (1539): parliament through a proclamation granted him
wide powers to legislate, even the power to amend the law of the parliament itself. where:
 Power is delegated to administrative authority to amend, modify or repeal the parent Act which
only the legislature should have done. Executive becomes dictator. Rule of law is turned into rule
of man.
 Same powers were given to Hitler, power to the executive to amend any Act of the parliament and
also to amend any provision of the Constitution. such delegation is considered to be
unconstitutional.
 Where the legislature delegates the law making power without laying down the policies and
guidelines.
 Where one has provided power with judicial immunity. It is considered invalid
 Where on has given administrative authority very wide discretionary power. E.g. Dwaraka Prasad
v. Union of India: the law said that no person can have any trade in coal unless he gets a license
and a coal authority was established. It was given power that it can grant or refuse license to any
person at their discretion. The Court held that it was exceptional delegation and held it as
unconstitutional for putting unreasonable restriction on right to trade.
 Exceptional delegation under a constitutional democracy is not permissible. It is possible in
England, where the Parliament is supreme and it can delegate law making power in any form. In
England, there is a regulatory reform Act, 2006. This Act gives power to the minister that in order
to effect efficiency and economy in your ministry, you can even change the provision of this
particular Act. Because Parliament is supreme, no body can challenge such delegation. Human
Rights Act, 1998: there is a European human rights convention, under that, there was a
requirement that you will incorporate the provision in a domestic Act. Power has been given to
the ministers that if any Order of incompatibility is passed by the SC, you shall have the right to
remove that contradiction even if it amends the Act of the parliament. But it has to be placed
before the Parliament for approval. Order of incompatibility: the Act of the Parliament is not in
consonance with the EU Convention.
 Discretion based classification:
o Normal delegation: where the legislature has laid down the policy and then the power is laid down
that administration can make rules within that framework. The executive have certain discretion
as to what rules they can frame.
o Conditional or contingent delegation: where the power has been delegated to the administrative
authority which is of a legislative nature but administrative authority has not been given any
discretion in the matter of such legislative delegation. This is a hangover of the British period:
Indian legislatures were considered to be the delegates of the British Parliament. They had no
power to further delegate the law making power of the administrative authority [delegatus non
potes delegare]. In this kind of system, the gun is provided by the legislature, gun power is provided
by the legislature, only pulling of the trigger is delegated. E.g. A new territory has been created.
The administrator of that territory has been given power that the law can be extended to this
territory which has been already passed by the legislature. The administration cannot tinker with
the law. E.g. Zamindari Abolition Act: power is degelated to the administrative authority that it
can issue notification making the applicable on a particular date. E.g. power to add or delete from
the schedule without changing the text of the law shall be considered as contingent delegation.
 Authority based classification: there will be supreme legislation [where legislature makes the law]
and subordinate legislation [when administrative authorities make the laws].
 Purpose based classification: power to extend, power to declare, power to act to the schedule or
to exclude from it.

Sub-delegation: when the power is given to the administrative authorities that they can further
delegated to other authorities, then the rule made are called sub-delegation. When the
administrative authority can delegate the power? It is generally done by two methods:

 The law passed by the legislature itself authorises that power can be further delegated. E.g.
Essential commodities Act, 1955: section 3, this Act is a skeleton Act and it empowers the central
government to make rules and regulations under this particular Act so as to make the essential
commodities available at reasonable rates. It is further laid down that this power can be further
delegated to the State government. The state governments have been further empowered to
delegate this power to any other authority as they deem fit.
 Legislature passes a law under which an administrative authority can make rules and regulations
and if they want they can delegate it to other authority as they deem fit. If there is no such
authorisation, delegation of law making power is unconstitutional. There must be express
authorisation or implied authorisation before such delegation. Authorisation cannot be in violation
of the parent Act. E.g. A K Roy v. State of Punjab, 1986: Prevention of Food Adulteration Act:
they created a food authority under this Act. It laid down that all prosecutions under this Act shall
be in the name of the food authority. Government had been given powers to make rules and
regulations under this Act. One of such rule was that food inspector can initiate prosecution in his
own name. this is in direct contradiction to the Parent act and prosecution were allowed only in
the names of the food authority. Therefore, sub-delegation is possible only if it is authorised
directly or is allowed by making rules and regulations. Quasi-judicial powers cannot be sub-
delegated.

Constitutionality of delegated legislations:

England: The Parliament is Supreme. Constitution is not codified. The fundamental principle of
democracy is that the will of the majority is supreme. If the majority misuses its power? It was
thought that the sovereignty of the Parliament is subject to the common law of England. Common
law is the customs and traditions of the people recognized by the Courts in the administration of
justice. Dr. Boniham’s case, 1610: the parliament passed an Act to regulate medical practice in
Britain and therefore a committee of Doctors was created in Cambridge University that you can
grant and revoke license to any doctor and regulate that practice. The Act further says that you
can collect license fees, half of the license fees will be deposited with public exchequer and half
would be kept with self. You can also impose fine. Half of it can be kept and half to the exchequer.
Dr. Boniham was held guilty for malpractice. License was cancelled and fine was imposed. This
was challenged on the ground that it violates the fundamental principles of common law that no
person can be made judge in his own cause [They can impose fine and half they can keep. They
have an interest in imposing fine]. Court held that supremacy of the Parliament is subject to the
common law of England.

However, this approach was abandoned after 1688 when the glorious revolution took place and
the king was made the mere constitutional head. All the powers were vested with the Parliament.
It was held then that there is no limit on the powers of the Parliament. They can pass any law and
Courts have no power to declare any law as unconstitutional.

Today, again the supremacy of Parliament has come under limitation. The Parliamentary
supremacy is subject to EU conventions. After the Brexit, perhaps the old position may be
restored.

Under this kind of constitutional dispensation, there is no limit on the parliament to delegate
powers to the administrative authority. The parliament has always delegated wide powers. E.g.
 Statute of Proclamation, 1539: Henry VIII was given wide powers, extending to amending the Act
of the Parliament as well; Human Rights Act, 1998 was passed in compliance with the EU
Commission on Human Rights, then the Courts were given powers to issue the Order of
incompatibility of the Parliament law with the human right Act and the EU Convention of Human
Rights.

Regulatory Reforms Act, 2006: the power was given to the ministers that they can make any rule
or regulation, any change in any law if it is necessary to effect economy and efficiency in the
ministry.

After the WW, wide powers were delegated to effectuate the social welfare policies of the
Parliament. This created a criticism that instead of being governed by law passed by the Parliament,
we are governed by the law passed by the executive. The government has become government of
man.

1932: Committee on Ministers Power to find out the problems with delegation. The Committee
provided that delegated legislation is both legitimate and permissible and constitutionally desirable
but for certain purposes, within certain limits and under certain circumstances.

USA

Delegated legislation is not acceptable in USA for:

 Every law by which the people are governed should come from the Congress;
 Doctrine of Separation of powers which is the foundation of the American Constitution;
 Delegatus potus non delegare: The congress is the delegate of the peole, people have given powers
to the Congress to govern them. Therefore, delegates cannot further delegate.
 Fundamental Principles of constitution of America is government under law passed by the
Congress.

However, the delegation of law making power is a necessary evil. Government cannot be run by
still separation of the three organs in water tight compartment. Essential law making powers
cannot be delegated, only ancillary power can be delegated. Cushman’s syllogism: syllogistic
reasoning is reasoning from general to particular. On the major promise, law making power cannot
be delegated. Minor promise: however, it is essential to delegate some law making power. What is
being delegated is not the essential law making power.
Field v. Clark, 1892: a law was passed by the Congress relating to import and export. In that law,
they allowed free import from those countries which allow free exports from America. President
was given power that if you see in any case that some countries which are exporting free goods,
but they are no allowing free import of our country, then you can prohibit free import from such
countries. This was challenged the power is law making power and thus the delegation is
unconstitutional. The Court said that certainly law making power cannot be delegated to the
administrative authorities by the Congress. However, it is not a case of delegated legislation but a
case of conditional/contingent legislation.

In India, there are two sources of administrative powers: inherent powers and delegated by the
Parliament.

In England, only one source, i.e. Parliament.

In America, Presidential notification can be issues, he has treaty making power, power to regulate
foreign affairs. So, inherent powers as well as delegated power.

After the World wars, the economy of America was shattered. Parliament thought to divest more
and more powers to the President.

Industrial Recovery Act, 1933: President was given wide powers to mend the American economy.

Panama refining Company v. Ryan, 1935 or the Hot oil case: the Congress passed a law under
which power was given to the President that he can put the oil quota for every state which they
can produce and see that no one ships oil in the international trade and commerce in excess of
that particular quota. President can seize such oil. This was challenged as no policy guidelines were
given by the Parliament, President has been given powers to make his own rules and regulation
and thus violates separation of powers. The Court quashed the delegation and held that no policy
and guidelines have been laid down by the Congress, it is a delegation of essential law making
functions.

Schechter Poultry Corp v. US, 1935 or Sick Chicken case: shortage of Poultry. Under the
industrial recovery act, power to president to develop a code for fair competition in Poultry and
enforce it on all State. Any violation of such code was made a criminal offence. Challenged. Held:
Unconstitutional. The code should have been framed by the Congress itself. it have abdicated its
powers and transferred it to the President. This violates the principle of separation of powers.
During 1930s: Congress made all efforts to boost economic recovery by giving wide powers to the
President. But SC was putting blockades. In that conflict, Congress wins for being the
representative and responsible party. Roosevelt threatened for Court packing [He threatened that
if SC does not change its attitude, then I will extend the number of judges and appoint judges of
my own choice]. In the above cases, the majority ratio was 5:4. He made a plan and sent it to the
Congress, Congress also did not appreciated the Court. The Congress rejected the plan on the
ground that whatever it may be, we cannot do anything which affects the honour and dignity of
the Court. Justice Jackson changed his side from conservatives to Liberals, thereafter, not a single
case of delegated legislation has been held as constitutional. Shift of 1 saved 9. When he changed
his sides, National Broadcasting Co. v. US, 1943 came. Under the communication Act, a federal
communication commission was appointed. Commission was given power that it can grant license
for broadcasting whenever it thinks that it is necessary in public interest, convenience and
necessity. It was argued that essential legislative functions have been delegated without Congress
laying down any framework. SC held that delegation is constitutional because these words lay down
a sufficient standard of policy. The Court is trying to upheld even wide delegation of law making
power to the administrative authority.

In Yakus v. U.S., 1944: Prices were fluctuating of essential commodities. Government wanted to
stabilize the prices. So, emergency price control act was passed by the Congress. The power was
given to the government that if it thinks that the prices are rising abnormally which in your
judgement are not fair and equitable, then you can fix the prices of essential prices that you thinks
are equitable in order to achieve the purposes of this Act. It was argued that wide powers have
been delegated to the government without laying down clear policy. The court held that delegation
is constitutional because they said that sufficient policy has been laid down when they say that any
price can be fixed to achieve the purpose of the Act. The court is allowing wide delegation because
they are taking into consideration the pragmatic considerations but not theoretical objections.

Lichter v. U.S., 1947: during the war, it was observed that the government contractors exploited
the government and they made huge profit at the cost of the State in execution of the contracts.
Power was given to the president that he can renegotiate with those contractors and see if they
have made undue profit, then they must return that profit. It was challenged that no policy have
been laid down. The court held that delegation is constitutional because ‘excessive profits’ lays
down sufficient policy.

Mistretta v. U.S., 1988: it was noticed that when judiciary sentences people, law gives them a
range of punishment. There was no guidelines as to how to fix a particular sentence between the
range. Lot of deviations were seen. Legislature passed Sentencing reforms Act and a sentencing
commission was appointed. It was given power that they can develop guidelines that how judges
can sentence between the maximum and the minimum. It was challenged on the ground that this
is unconstitutional because it is delegation of law making power. Court held that it is constitutional
on the ground of pragmatic consideration and court has come out of theoretical framework.

Whitman v. American Trucking Association, 2000: under the environment protection Act,
power was given to the environmental protection board to lay down the criterion for air quality.
It was challenged on the ground that instead of legislature laying down the norms by the legislature,
delegation has happened. The Court held that this is a function which can be undertaken only by
an expert administrative body and not by generalists who are sitting in the Congress.

Delegation has become a rule and non-delegation has become an exception.

India:

Pre-constitutional era:

When the Privy Council was the highest Court of appeal:

Privy Council advised the Crown on legal questions that came before them from British colonies.
In India, in constitutional matters, it was the highest court of appeal till 1935 and in all other
matters, it was highest court of appeal till 1949.

R v. Burah, 1878: An important constitutional matter took place in 1866. In 1866, Indian council’s
act was passed under which legislative bodies were established in India. Indian Legislature passed
an Act and they removed Garo Hills from the administration of Bengal and made it a separate
territory for administration. A lieutenant Governor is appointed to control that Garo Hills. Instead
of legislature passing a law for garo hills, they gave power to the LG that he can extend to garo
hills any law which is enforced in Bengal area with such incidental changes as you wish to make.
Criminal law was extended. A person whose name is Burah was tried under this extended this law
and was given death sentence. He challenged this before Calcutta High Court on the ground that
the delegation is unconstitutional. Instead of legislature directly legislating for Garo hills, they have
given the powers to the administrative authority to legislate in the garo hills. The sentence was
quashed on the ground that the Indian Legislature is a delegate of British Parliament and delegated
powers cannot be further delegated unless specifically authorised. Government went in appeal
before the Privy Council. It said two things: Indian Legislature is not a delegate of British
Parliament. The Indian Council’s act has been passed under which legislature has been created
with certain powers and for the exercise of such powers, they are sovereign. Another thing decided
was that it was not a case of delegation of law making power but a case of conditional legislation
because LG cannot make any change in the law, only incidental changes are possible. Power of
extension with incidental changes is a conditional legislation and not a delegation of law making
power. Now, when this case was decided, then it was interpreted in India in two ways: 1. That
delegation of law making power is not allowed, only conditional legislation is allowed; 2. Privy
council says that Indian Council is not a delegate of the British Parliament therefore, there is not
limit on their power of delegation of law making authority to the administrative authorities.

R v. Benori lal, 1945 PC: in order to control the law and order situation in the States, governor
general passed special courts Act in which there was a provision that certain offences shall be tried
by special courts which must be constituted according to the provisions given in the Act itself and
their procedure was summary for quick decision. Power is given to the provinces that if they think
that there is a need for Special Court in their State, they can issue a notification and make this Act
applicable. Privy Council held that it is a case of conditional legislation and hence it is valid. Law
making power cannot be delegated, only conditional legislation is possible.

In these cases, delegation was considered valid as the delegation was only conditional delegation.

Federal Courts were established and Constitutional matters were going there as per the
Government of India Act, 1935.

Jatinder Nath Gupta v. Province of Bihar, 1949: Bihar maintenance of public order act was
passed by the legislature. Its life was for 2 years and delegation was that the government can extend
the life of this act by one more year with such modification as they deem fit and proper. Whether
it is constitutional to delegate the power in such a manner. Federal Court held it unconstitutional.
Law making power cannot be delegated by the Indian legislature. Power of extension with
modification is a delegation of law making power. Justice Fazal Ali gave a dissenting Judgement
holding that it is a conditional delegation. The word modification does not mean that one can
modify the policy of law. Only certain changes can be made to make the law workable.

Indian Legislature cannot delegate its law making authority to the administrative authority.

In the Constitution, the State has become a welfare state. There a huge task to remove rural poverty
and unemployment. For this reason it is a compulsive necessity to delegate some law making power
to the administration. So they were eager to know that under the Indian Constitution, can we
 delegate law making power to the administrative authority, if so, what is the limit. Reference was
made to the SC by the President under Article 143. This reference is considered to be the bible of
delegated legislation.

In re Delhi Laws Act, 1912: President selected three Acts. One at a time, when the privy council
was the highest court of appeal, second when the federal court was of the highest court of appeal,
and third law when the SC was of the highest court of appeal. President wanted to know the
constitutionality of the Acts. 7 separate judgements were written. This can turn the democracy into
dictatorship if we do not put any limit on the power of the parliament to delegate the power to the
executives, then the executives can become the dictators. Patanjali Shastri was the CJI. Two things
are clear from these judgments:

 now, delegation of the law making authority to the administration is a compulsive necessity.
Constitution cannot be executed, the concept of the welfare state cannot be realised unless some
law making power is delegated to the administrative authorities.
 Delegation of law making power to the administrative authorities cannot be without limits.

The Statutes were: Delhi Law Act, 1912. In this Section 7 was involved. Delhi was part of Punjab.
It was separated from Punjab and LG was appointed. Power was given that you can extend to
Delhi any law which is in force in British India with such restrictions and modification as you deem
fit. Power of extension with restrictions and modifications is given. Court held that it is
constitutional as this power does not mean making changes in the essential provisions of the law
but merely to bypass contradictions.

Section 2 of Ajmer and Mewar Extension Laws Act, 1949: Government can extend to the area of
Ajmer any law which is in force in any other province with such restriction and modification as it
may deem fit. Court held that such delegation is constitution on the same reasons.

Section 2 of the Part C States Laws Act, 1950: government may extend to Part C states any law
which is in force in Part A states in the Indian territory with such restrictions and modifications as
the government may deem fit. Again the court held it constitutional.

The second part of this Section created the issue. Government can repeal or modify any law which
is already applicable in Part C states. The court held it unconstitutional. The power of the Indian
Legislature in delegating the law making power is no unlimited. The power of repeal and modifying
the existing law cannot be delegated for being a legislative power.
 The government was represented by M C Setalvad: in constitution there is no specific prohibition
against delegation of law making power. And it is also decided that legislature is not a delegate of
the people. separation of power is also not the basic structure of the Constitution. therefore, there
is no restriction on the parliament so far as delegation of law making power to the administrative
authorities is concerned. The parliament can delegate any law making power to the administration.
Even then, there are two limitation: parliament cannot abdicate itself completely and cannot create
a parallel legislative authority. Parliament cannot delegated that power which it does not possess.
Parliament cannot delegate power which is in the State list.

N C Chatterjee argued against Setalvad: under the scheme of our constitution, no power can be
delegated to administrative authority. It will be a violation of the doctrine of constitutional trust.
No matter separation of power is not the part of the Indian Constitution, but division of power
is. The power is clearly demarcated. Therefore, legislative power cannot be delegated. A delegate
cannot further delegate because delegate is a delegate of people. parallel legislative authority cannot
be created. If legislature is allowed to delegated its power, it would be creation of parallel legislative
authority. There is an implied prohibition on delegation. This arises from the fact that when the
constitution vests power on legislation on certain authority, it means that it impliedly prohibits
delegation to anyone else. It will become a case of colourable legislation. What parliament cannot
do directly will be done indirectly.

Wisely, SC takes a via route.

 Delegation is a compulsive necessity. However, no delegation is possible under the express and
implied provision of the Constitution.
 Parliament cannot delegate its essential legislative functions.:
o Laying down the policy of the law
o Enacting that policy into a binding rule of conduct. If the legislature has done this, then they can
delegate ancillary law making powers to the authorities.
o Provide sufficient guideline for administration to make rules and regulations. This is the implied
limitation on the power of the legislature to delegate.

Same is the position in America.

Post Constitutional era:

CHECK PDF ENTITLED POST CONTI ERA

Jalan Trading Co. v. Milk Majdur Sabha, 1967: payment of bonus act, 1965 was under
consideration. This Act provided for paying statutory bonus. Every company has to pay statutory
bonus compulsorily. Section 37 provided that government shall have power to make rules not
inconsistent with the Act as are necessary and expedient for the removal of doubt. Another clause
of this Section provided that the rule shall be final. It cannot be challenged in a court of law.
Delegation is unconstitutional: held by the court. Wide power has been given to make rules and
regulations, to remove any doubt or contradiction. Rule has been made final: unconstitutional. A
strong minority view by Hidayatullah: power has been delegated to make rules which are not
inconsistent with the policy of the Act. This is sufficient restriction on the unlimited exercise of
power by the administration.

H R Banthia v. Union of India, 1970: Gold Control Act, 1968. Under this Act, the power had
been given to the government to make rules relating to the sale, manufacture and distribution of
gold as it may deem fit. The court held it as unconstitutional as nowhere policy has been laid down.
This is criticized as policy is very clear by the title of the Act and the statement of objects and
reasons: to stop the smuggling of gold and to make sure that it is available at a reasonable rate.

Gamon India Ltd. v. Union of India, 1974: the provision was similar as that was involved in the
Jalan’s case. Power to make rules and regulation not inconsistent with the Act to remove
inconsistencies and difficulties. The difference was that there was no finality clause. The court held
that the delegation is constitutional. It virtually overruled the above cases. Court is realising that
delegation of law making power is a necessity and thus some space must be given to the legislature
to delegate the power.

Gwalior Rayon Silk Mill v. Central Sales Tax Authority, 1974: 5 judge bench. Central sales tax
Act, 1956 was involved. Parliament did not fix the rate of tax. Central government was given power
to adopt tax which is there in any state and impose that particular tax. They will that in which state
the sale tax is more rational and appropriate and make such rate as appropriate. It was challenged
as unconstitutional delegation. Nowhere the policy is laid down. No guidelines. However, all the
five judges gave unanimous decision and held that delegation is constitutional. Three judges gave
one reasoning and other two something else. Justice Khanna [on behalf of 3 judges]: sufficient
policy has been laid down in the Act itself. The power has also been not unlimited. They cannot
fix any arbitrary rate but adopt a rate of any appropriate state. Policy is there. Repeal test is not
valid under a parliamentary form of government, let say government is given the power to make
law and the parliament has power to repeal the law, however, the parliament is against the
government itself. the repeal test is possible only in the presidential form of government. If the
government has formed the rules, they will never allow the parliament to repeal the law as the
Council of Ministers will not allow so. Repeal is not a sufficient guarantee in a parliament form of
government. Concurring opinion by other two judges. Justice K K Mathews: it is futile to try to
find out the policy and the guideline in the Act. This test is useless. To look into the Act or outside
the Act is not an edifying function for the SC. Let us change the basis on which one declares the
delegated legislation constitutional or unconstitutional. He laid down the repeal test. So long the
legislature retains the power to repeal the parent Act under which the power has been delegated,
then it is constitutional. If the legislature feels that the limits are violated or the power is misused
by the administration, the legislature itself will repeal the Act.

M K Papiah v. Excise Commissioner, 1974: Karnataka excise Act, 1966. Legislature gave power
to the government to fix the excise rate and to make rules and regulation under this Act as they
deem fit and proper. K K Mathews is the senior judges in this 2 judge bench. He applied his repeal
test. Because the legislature has kept the power to repeal the Act, so the delegation is constitutional.
Earlier case was not even mentioned in this case.

Registrar Co-operative Society v. K Kunjabamu, 1980: 5 judge bench. Madras co-operative

society Act was involved. Legislature wanted to organize a strong co-operative movement in the
state. This Act was to regulate such societies. The government shall have power to exempt any co-
op society from the operation of the Act and it may also apply this Act by making rules to a co-op
society with such modification as it may think fit. Court again restored the policy and the guidelines
test. It was held that policy is clear from the preamble and the other provisions of this Act and
therefore this delegation of law making power is constitutional.

Bhatnagar and Co. v. Union of India: Import and Export control Act was involved. It is a
skeleton legislation [where the legislature lays down only the policy and the purpose. Lays down
for the creation of authority and leaves everything to such authority for operationalization of the
activities]. The activities were conducted by the central government through rule making.
Challenged: whole system is governed by the rules and regulation by the central government. Held
that the policy of the law is very clear in the Act itself. The purpose is clear and thus the delegation
is constitutional.

D S Grewal v. State of Punjab: All India Services Act, 1951. Skeleton Act. AIS are administered
by the rules and regulations of the government framed under this Act. Challenged: all power has
been given to the central government, nowhere the policy has been given. Held: the policy has
been given in the Act itself. Rules and regulations have to be formed to enforce efficiency and
discipline in the services.
 Avinder Singh v. State of Punjab, 1979: Punjab Municipal Act was passed. Power is given to the
Municipal corporation that it can impose any tax for the purpose of this Act. Challenged:
unconstitutional delegation for absence of policy. The court said that the word for the purpose of this
Act, they lay down sufficient policy. For the purpose of this Act means: every municipality prepares
a budget showing expenditure and required income so that expenditure will operate as a limitation
on the collection and imposition of tax. They cannot impose higher tax than they need for running
their activities. Though the taxing function is an essential legislative function, the court has allowed
wide delegation for necessity.

To what extent taxing powers can be delegated? Power to tax is always considered to be an essential
legislative function. Under US Constitution: only congress shall have power to levy and collect
taxes. Article 265 of the Indian constitution: no tax shall be collected or levied except by the
authority of law. There are three powers which are considered to be inherent in the State:

 Power to tax
 Power to eminent domain [taking private property for public property]
 Police power [regulating private conduct for public welfare].

The power to tax is a very important power of the State because it is not only a method of collecting
revenue but also a method of socio-economic control of the society. In the same manner, arbitrary
imposition of tax and forcible collection of tax violates right to life and personal liberty. History
tells us that taxing power had been very much misused. In England, the crown had the power to
impose any tax, arbitrary imposition and forceful collection made the life of the people miserable.
This was the problem in British India as well. In England, there was a movement of people to
restrict this power to the Crown. First attempt was made in 1215 when the Magna Carta was
signed. One clause in this was that no tax can be levied by the Crown without the consent of
commune concilium [body of the people living in a particular area where the tax is going to be
imposed. From this, the concept of Parliament developed] except in three areas: land use, defence,
church. This imposition on the power of the crown to impose tax was later on affirmed by Act of
Settlement, 1688 and Bill of Rights, 1689. In Bill of Rights it was laid down that levying of money
for the use of the crown by pretext of prerogative without grant of the parliament is illegal. Still,
no tax can be imposed without the authority of the law. No tax can be imposed by delegated
legislation unless specifically authorised by the Parliament. There must be express authorisation to
the administration. If the power is given to the minister to regulate the sale of milk in exercise of
 this power, he cannot levy tax on milk for no express authorization. Even if the diary companies
agree, even then it shall be considered as illegal and government shall be restrained from collecting
such tax [Attorney General v. United Diary Company].

In India, what taxing power can be delegated? It can be delegated only by specific authorization
and not be implied construction.

 Power of exclusion and exemption from tax can be delegated [Orient Weaving Mills v UoI, 1963:
State statue levied multi point sales tax. Power was given to the government to make it a single
point tax on certain goods selected by the government. Court held that such delegation is valid as
specific authorization is given.]
 Power of inclusion of a person or a property can be held valid;
 Power to determine rate of tax can be delegated. The earlier approach of the Court was that it can
be delegated only when the parliament has laid down the range of tax. Courts became flexible later
on and said that power to determine the rate of tax is okay provided the maximum rate is laid
down. Further, the Courts held that power to tax can be delegated if the minimum is laid down.
Further, power to determine rate can be delegated without laying down minimum and maximum.
Avinder Singh v. State of Punjab, 1979: power to municipal corporation to impose tax on liquor.
Neither maximum nor minimum rate laid down. Challenged that it is unlimited power. First, the
municipal corporation is a representative and responsible body and second, there is a provision in
the Act itself that tax can be levied for the purpose of this Act. For the purpose of this Act is a
sufficient maximum limit which state cannot violate. Purpose of this Act: they cannot collect more
tax that what is needed for their budget purposes. The courts are trying to be liberal if the power
to impose tax is delegated to a body which is representative and responsible.
 Power to extend tax laws to an area is valid. E.g. power to municipal corporation to extend tax
laws which is applicable in the neighbouring corporation. Power to extension is only limited to
existing tax laws and not to future amendments.
 Sub-delegation is possible if it is specifically authorised.

Control mechanism of delegated Legislation:

 In India, there is no special law to control the exercise of legislative powers by the administration.
Statutory Implementation Act in England lays down such guidelines. America: Federal Register
Law and Administration Procedure Act by which provisions are made that how the rules and
 regulations will be published and made. The law under which the power is delegated may itself lay
down the control mechanism.
 There are basically three types of control:
o Parliamentary control
o Procedural control
o Judicial control
 In common law world, we put more emphasis on judicial control. In America, they put lot of
emphasis on procedural control because if the procedure by which the rules and regulations are
democratic in character, then it is the best control relating to the relevancy and the acceptability of
the administrative legislation. If the administration is required to make the rules in consultation
with the subjects of such regulation is the best method. It will have more acceptability and
effectivity. Judicial control is always aspired for when the administrative authority exercises its
power in an arbitrary manner.

Parliamentary Control: it is something which is inherent in delegated legislation therefore it must

be a living continuity and a Constitutional imperative. Constitution requires parliamentary control
because one cannot delegate law making power without first exercising essential law making power
by yourself. Power delegated by the Parliament is subject to the continuity of the legislation.
Parliament can repeal the Act. This basic control mechanism has become very weak and
ineffective. One reason is that in a parliamentary democracy, there is a gravitation of power
towards the executive and not the parliament. No law can be passed in the parliament unless it is
sponsored by the executive. In America, no legislative proposal can be sponsored directly by the
executive. In India, no law can be passed by the parliament unless it is first approved by the cabinet.
If the Congress wants to pass any law, they can do it even against the wishes of the Executive [In
America]. When executive controls Parliament, the control by the parliament of delegated
legislation is illusionary and not substantial. Other difficulty can be, no person can vote against the
party mandate for the whip mandate in India. Thus the members have no right to express their
independent opinion. Third reason, the lack of concern. We have so many other important matters
and thus we cannot waste time on scrutinizing the delegated legislation.

CONTROL MECHANISM IN ADMINISTRATIVE LAW

How the parliament exercises control?

 Memorandum on legislation which provide for delegation: Lok Sabha Rule 17; Rajya Sabh Rule
65. If any bill comes before the parliament where there is a provision for delegation of law making
power, it must be accompanied by the memorandum, it must clearly lay down the details as to why
power is being deleted, to whom delegated, whether there is sufficient guidelines, what are the
checks.
 Inherent control as parliament delegates power. If it is not being exercised properly, it can be taken
back. Delegation is important:
o When it requires technical skills
o On and huge legislations would create difficulties for check and control
 General control:
o Debating on bills: asking questions, vote on grants, proposing resolutions.

REFER TO PDF FOR THESE NOTES!!!

Procedural control of delegated legislation:

 Drafting of the delegated legislation: done by ordinary office personnel and therefore the drafting
suffers from many difficulties besides language difficulties and whether the rules and regulations
violate the constitution and the parent legislation or not. In Australia, the rules and regulations will
be checked by the Parliamentary drafter and checks whether they are aligned with the law and
constitution. New South Wale: rules and regulations must be checked by the Attorney General.
 Ante-natal Publicity: before admin authority makes final rules and regulations, they must be
published and suggestions must be invited by the people. after taking into consideration their
suggestions, the rules must be given the final shape. This brings transparency and democracy in
the delegated legislations. In Britain, there is a Rule Publication Act and statutory instrument Act,
1946. In America, they have Federal Register Act and also they have the provisions in the
Administrative procedure act by which the rules are published before they become applicable and
the suggestions are invited by the people. In India, there is no formal law. However, whenever a
parent Act lays down that before the rules take final shape suggestion should be invited, in these
cases, Section 23 of the General Clauses Act is attracted which says that if there is a provision for
Ante natal publicity in the parent act, then rules must be published in the official gazette or in any
other manner which the authority deems fit. The sufficient time must be given and a date must be
mentioned by which the suggestions are to be invited. In USA there is a time limit of 30 days. In
Indian and Britain there is no such time limit. The suggestions are not binding but only informative
 and rules must be reframed in lines of the final rules. IN America, people are invited to seminars
and discussion and even lobbying groups are invited. This publicity makes rules and regulations
relevant to the needs of the people. What is the validity of the rule which was required to be ante-
natally published but this is not done? Court generally see that if there is no literal compliance, but
still there should be substantial compliance and it must not be deliberately avoided. In America,
we have sunshine Act which lays down that if any ministry or any admin authority is holding any
conference or meeting in which a public interest issue is discussed, then a notice must be published
and the meeting must be open to public and lobbying groups. In Raza Buland Sugar Mill v.
Ram Munic, 1965: the provision in the Act was that before the government makes final rules and
regulations for imposing tax, the draft rules must be published in a hindi daily and then suggestions
are to be invited, considered and then rules must be given the final shape. The rules were published
in Hindi but in Urdu daily because they thought that such daily has wider circulation in that area.
Challenged. Held: there is a substantial compliance and no interest of the people has been violated.
In govind lal v. agricultural produce market committee, 1975: under Gujarat agricultural
marketing act, it provided that before the marketing committee makes rules and regulations, they
shall published the draft rules in a Guajarati newspaper, then consider the suggestions and then
the rules be given final shape. The rules were not published at all. The court held that the rules
and regulations are invalid before the process of ante-natal publicity has been deliberately violated.
Bengaluru woollen mills v municipal corpo, Begaluru, 1962: law required that before you
make final rules and regulations, first publish the draft rules in the gazette, invite objections and
suggestions and then given the final shape to the rules. The rules were published in a newspaper
which was widely circulated in that area. The court held it to be sufficient compliance as the
people’s interest are not jeopardized. State of Orissa v shreedhar kumar, 1985: it was the
requirement of the parent act that government before making final rules and regulations shall
publish the draft rules the in odia newspaper, suggestion invited and then rules finalized. They
were published in English Newspaper. Court held that the rules and regulations are invalid because
the local people who don’t read English paper had no access.
 Consultations with the interested persons: this really makes the admin rule making transparent,
participate and inclusive because the best rules and regulations can be made by bureaucrats.
Research of bureaucrats may not be efficient. Therefore consolation is the best form to make the
rules relevant to the needs to the people. how this happens? It may be of various types: oral, written
or both. Instead of demanding written suggestion, we may invite the persons directly for a public
hearing or invite the civil society people who are working in that area, or invite unions for personal
hearing. This hearing may be open or personal. Hearing may be auditive [hear them and then its
your own decision to accept it or reject it] or adversary [where one has to make rules and
regulations on the basis of the facts ascertained. E.g. Government wants to impose statutory bonus
and what should be the rate of the bonus would depend on the capacity of the industry and
requirements of the labourers]. There may be interviews and conferences. Hearing through writing:
they may circulate questionnaires, proformas, ask for written proposals and statements. In India,
there is no separate law which provides for consultation as a mandatory requirement for all the
delegated legislations. Only if the parent Act provides it is there. generally, it takes 6-7 shapes in
the present time: consultation with the named body in the Act [Banking Act lays down that before
the reserve bank makes rules and regulations, recognized unions must be consulted]; Consultations
with statutory administrative boards [Mines Act, 1901: a administrative board has been created to
oversee and regulate the mining in India and the requirement is that if government wants to make
any rules, this board must be consulted]; consultation with statutory body in-charge of a subject
[Tea Board Act and Coffee Board Act, these boards are in-charge of the entire subject of Tea and
Coffee, everything is controlled and regulated by these boards. If government wants to make any
rules, they must consult these boards]; consultations with the affected persons [land acquisitions
Act, person whose land is going to be acquired should be consulted in a public hearing. If the
minimum wage is to be decided, the labour union is to be considered. If we are deciding the wages
for working journalists, then the unions and industrialists must be consulted]; preparation of rules
by affected persons [Mines Act: if the government wants to makes rules for the safety of the mines,
the first draft must come from the owner’s of the mind. They are the persons who are at the helm
of the process and they know the best interests]; preparations of rules by the recognized
associations [forward contract Act: recognized association should be consulted]. If there is a
provision for consultation and consultation has not taken place, what shall be the validity of such
rules. Whether process of consultation is mandatory or directory [The court will see what prejudice
has been caused and on that basis it will decide]. Tulsipur sugar co. v. tulsipur notified area
committee: the provision was that the committee can make rules and regulations and before
making rules, they must consult the persons affected by it. They had already allocated certain areas
to a particular sugar mill and the produce of that particular area to that sugar mill. Later on, they
wanted to change these areas. But the persons who were cultivated sugar cane were not consulted.
Court held that tell us what prejudice has been caused? They were not able to show any prejudice.
The court said that if prejudice has not been caused in a common sense approach, then the court
will not quash the administrative rules and regulations. Every case has to be decided on its own
merits. In America, it has always been held as mandatory. In a case, where the consultation
opportunity was given, but it was not real [there is a case ex parte Sharpe, 1989:there was a
provision for consultation, notice was issued and it did not mention any date by which
recommendations were to be send. Challenged. Court held that rules and regulations are invalid
because the opportunity which you gave was not real and substantial technically.] R v. Rich Mond
Council, 2001: the law was there to regulate traffic and there was a provision that you have to
consult the pedestrian associations and also the residents living near those roads. They consulted
only the pedestrian association. Held: substantial compliance and no prejudice to the residents and
thus rules and regulations are valid. If any consequence is provided in the parent act,
then consultation is deemed as mandatory. Courts take into consideration contextual pragmatism:
every case has to be decided on its own merits. Court will see whether the consultation has been
deliberately affected or not, what prejudice is caused when consultation is not done. E.g.
Agriculture, Horticulture and Forestry Industry Training Board v. Aylesbury Mushroom,
1972: there is a industrial training Act in Britain, 1964. Minister has been given power to make
rules and regulations under the Act after consulting substantial number of persons employed in
agriculture, Horticulture and forest industry. Minister consulted national farmer’s union but did
not consult mushroom growers associations. Court held that it cannot be applied to mushroom
industry because they have not been consulted as the consultation was mandatory. Grunwick
Processing lab v. Advisory Consultation and Arbitration Service, 1978: there is an
employment protection act, 1975 under which the minister can make rules for the recognition of
labour union but after consulting all employees. When the rules were framed there was an industrial
dispute [strike] and therefore it was not reasonably practicable to consult them as required under
the Act. Therefore, the rules were framed and made applicable. It was argued that there is an
administrative difficulty. Court held that consultation is mandatory and administrative difficulty is
no ground. If the consultation is not done it will frustrate the very purpose of the Act [protection
of the employment]. If no prejudice has been caused to anybody and then no
consultation is immaterial, the requirement for consultation would be deemed directly. R v.
Secretary of State for Social Service, 1986: the minist3er was given power to make rules and
regulations under the social service Act after consulting housing bodies. Intimation was sent to
them. However, the time which was given, nobody turned up. But before that time, the bodies
sent a letter to the ministers to extend the time for time being short. They received no reply. Rules
and regulations were framed without consultation. There was a housing benefit scheme which was
dropped. consultation was deemed as mandatory as prejudice has been caused. In the same
manner, the court will look into the circumstances of the case, consequences to the people. R v.
Secretary of health, 1994: state bone marrow transplant facility. Public health required that for
taking any major public health decision, the organizations which are working in the public health
 must be consulted. Rules were made and funding of this unit was stopped. Held that because of
this decision of the government, they have stopped the funding without consulting the bodies
which are operating public health. The people’s interest has been grievously jeopardized without
even thinking of alternatives. Therefore the rules and regulations are not valid as consultation was
considered mandatory. What if law does not provide for consultation? If the government
had made rules and regulations without consultation and those rules and regulations cause a serious
prejudice to people, can one claim consultation as a requirement of natural justice. Principles of
natural justice are not attracted in the legislative matters. For e.g. a particular company was in a
particular area which was notified. In that area, there was no octri duty. Thereafter the government
changed the rules and in new rules this company was outside the notified area and it is subject to
the octri duty. Can the company say that it was not consulted? Court will held that there is no
provision for consultation in the Act. Additionally, it being a legislative matter, principles of natural
justice are not attracted in these matters. However the courts have said that where rule making is
based on factual situations which is to be ascertained by the administrative authorities, there the
consultation can be claimed as a matter of natural justice. Where rules are to be made after
ascertaining a factual situation, then even if the law is silent and rules have been made without
ascertaining those factual situation, natural justice may apply. State of TN v Sabanayagam, 1998:
there is a Payment of Bonus Act. Statutory bonus is to be apid by every industry whether it have
profits or not. Schedules attached telling the industries where it would be applied. However, the
government can exempt any category of industry from the schedule on the basis of taking into
consideration its financial position. Court held that there is a requirement of consultation before
you exempt an industry. Where a vested right has been divested, there the consolation can
be provided as a matter of natural justice. E.g. Godawal Pan Masala Product v. UOI, 2004:
rules were framed under tobacco Act and production and sale of Gutka was prohibited. The court
held that at least companies which are producing paan masala of a different varieties should have
been given an opportunity to rebut whether the rules would prohibit the production of paan masala
or not. They should be consulted.
 Post-Natal publicity: if the rules have been made and no effort were made to publish them.
Ignorance of law is no excuse. But this does not mean that if rules and regulations have not been
brought in the public space, then how a person would know about the rules. This doctrine pre-
supposes the presence of rules in the public domain. Even personal knowledge of the law would
have no effect unless published. Actual knowledge irrelevant. Harla v. Rajasthan, 1951: under
opium Act, a person was allowed to have certain quantity of opium which was valid to carry.
However later on government changed the rule and made it 50 gm from 100 gm. Rules were never
 published in any form. One person was arrested. Court held that the person cannot be prosecuted
as the rules were not brought in public space. Narendra Kumar v. UoI: rules were framed under
the essential commodities Act, 1955. Law required that the rules as soon as they are made must be
published in the official gazette. Court held that rules are not binding because they have not been
published. State of Mah v. M H George, 1965: Gold Control Act. Government had power to
make rules and regulations. Only a certain quantity of gold could be imported. Rules changed and
quantity decreased. These were published on 8th Nov. Mr. George is out of the country and he
reaches India from Germany on 24th Nov and carrying gold which is now in excess to the revised
rules and he is arrested. He pleaded that I am not guilty for no knowledge of the rules. Held:
ignorance of law is no excuse. The rules were there in the public space. Kerela v. p J Joseph,
1958: changed the rules and made a rule that if a person who is holder of a liquor license if willing
to pay 20% commission then he may be granted extra license for liquor. Never published.
However, one person knew this rule. He applied to the government. Government is taking the
plea as the rules are not valid for they being not published. Therefore, one cannot demand as a
matter of right something on the basis of the rules which are not valid and legally binding. The
court held that if the rules are not published, no right vests in anyone.

Some experiment in Kerala: Kerala Police Act, 2011. Government was given power to frame rules
and regulations relating to police service delivery. The draft of rules and regulations were put on
website, published in newspaper, sent to civil society people through email and feedback was
received. In October and November 2011 an all-party select committee was constituted which was
headed by the Home Minister. This committee toured whole state district by district. In advance
they informed the districts as to their arrival. In advance, a public meeting had been arranged that
all those who are interested should come to a particular place. All the districts were covered. This
committee attended about 500 meetings. As a result, this select committee suggested about 790
amendments to the proposed rules. Out of these, 250 were accepted by the government.

JUDICIAL CONTROL:

Parliament control which is inherent is very weak. Procedural control is not very effective.
Therefore, we need to depend lot on judicial control because people put trust in the judiciary. The
judicial control occupies the central stage and all other mechanism are weak and superficial.

Judicial control of delegated legislation in USA:

 Separation of power is prevalent. One organ cannot interfere into the functioning of other organ
of the government. Additionally, one organ cannot exercise the powers of the other organ.
 Executive cannot exercise law making power and the judiciary cannot quash any action of the
executive or the congress. However, it is not applied in its structural sense. It is applied in the sense
of mutual co-operation and one organ exercises checks on the other organ. The Congress delegates
lot of law making powers to the administrative authorities because it is a compulsive necessity.
Without this, no government can function. Congress cannot delegate law making power because
it is unconstitutional. Therefore, what is being delegated is not the principle law making power but
an ancillary law making power.
 Can the judiciary declare the delegated legislations as unconstitutional or interfere in the
functioning of the Congress or the executive. First answer was that judiciary cannot. But now,
judiciary is continuously interfering in the functioning of the judiciary and executive.
 In Marbury v. Madison, 1803: in this case, for the first time, CJ Marshall established the
supremacy of the SC of America and allowed exercising the power of declaration of law as
unconstitutional. In America, there is always a tussle between unionist and federalists. Unionists
always held that real constitutional power rests with the state because American constitution is
merely a union of State and therefore sovereignty of the states is important. They wanted strong
states and weak center. That’s why the federal legislature exercises only specifically defined powers
and the residuary powers are with the states. In America, the standing army is not very huge
because everybody is supposed to have military training and bear arms. Every state has its own
flag, constitution, legislature, executive and judiciary. But, today the federal government has
become very strong. American has become a nation and this has happened because of the role
played by the SC in strengthening the power of the federal government. In Marbury v. Madison,
Jefferson, who was the President of US, was a federalists. Elections were held, federalists lost and
unionists won. Now, Adam is the president. Elections held in November and posts were to be
transferred in January next year. During this period, Jefferson passed the Judiciary Act. The
number of federal judges was increased. Power was given to the SC to issue the writ of mandamus
in exercise of its original jurisdiction. In Constitution, the original jurisdiction of the SC is highly
limited. He appointed more than 50 judges once the number was increased to various federal
courts. These are known as mid-night judges. Unfortunately, one appointment letter could not be
issued. That was of Marbury. In the mean time, the new government has taken over and Madison
is the secretary of the State. Adam is not issuing that appointment letter. Case is filed in the SC
that kindly order the delivery of the appointment letter. Question before the court? Can the court
order the secretary of the state to deliver the appointment letter. CJ Marshall initiated with the
fundamental question as to whether the court has the power to issue the writ of mandamus which
the congress has authorised it to issue under the Judiciary Act. It was argued that court has not
such power and the courts cannot decide on the constitutionality of the law. Marshall says that the
constitutional says that all the judicial powers shall vest in the SC. Constitution is supreme.
Therefore, whenever there is a challenge that anything violated the constitution is covered under
judicial power and thus court shall have power to decide the matter. So the court can decide on
constitutionality. Further, Judiciary Act has extended the original jurisdiction which is given in the
constitution. He deemed that this is a constitutional amendment and this cannot be done by simply
passing the law. Therefore, again it being a judicial matter, courts shall decide this. He did not tell
that whether the SC can order the executive but establish that if any violates the constitution,
judiciary has the power to declare it as unconstitutional. From there, for 50 years no law was
deemed as unconstitutional. The doctrine of self-restraint was shown. Thereafter, for the first time
in 1857 a law of the Congress which is known as Missouri Compromise Act was declared
unconstitutional in the case of Dred Scott v. Sandford.

Judicial review of Delegated Legislation in Britain:

In Britain, executive has no inherent legislative power. In India, executive has inherent legislative
power because executive power extends to all matters where Parliament has power.

There should always be a statutory authority for every executive actions. Either law passed by
Parliament or rules and regulations framed by administrative authority. Executive rule making is
allowed under law of the Parliament.

What are the grounds of judicial review or control in the UK? Substantive ultra vires and
procedural ultra vires.

Substantive ultra vires: where rules and regulations framed by administrative authority are beyond
the powers of the parliament; where exercise of rule making power is in direct conflict with the
parent act; after 1998, administrative rule making can be challenged if it violates the Human Rights
Act, 1998 or other EU regulations; it can also be challenged on ground of unreasonableness or
arbitrariness.

Procedural ultra vires: while making rules and regulation, executive not followed procedure laid
down in Act by Parliament; when violation of statutory instrument Act, 1940 where procedure is
laid down; where administrative rule making is in violation of principle of natural justice; where
rule is to be framed on factual matrix and opportunity to be heard is not given, rules and regulations
are not valid.

In England, wide delegation because executive not having inherent legislative power but this is
how it gets controlled.
Can Judicial review be barred? No because Judicial review is part of the basic structure.

If Act is put in 9th schedule, can 9th schedule bar Judicial review of delegated legislation? No because
in I R Coehello’s v. State of Tamil Nadu, court made it clear that even if act is put in the 9 th
schedule along with rules and regulations, court has the power to see whether the rules and
regulations are violating the constitution or not.

What if the act is put in the 9th schedule but not the rules and regulations? No, even Act can be
challenged and rules and regulations can be challenged. Thus, in India, delegated legislation cannot
be saved from Judicial review. It can be challenged on the following grounds – violate the basic
feature; violate the fundamental rights; rules are malafide and motivated by extraneous
considerations.

But in England, parliament is supreme and if it said that the acts of minister in Act cannot be
challenged then court has no jurisdiction.

Institute of Patent Agents v. Lockwood, 1894: Parliament passed an Act, under the Act,
government can make rules and regulations but rules and regulations have to be deemed as enacted
by the Parliament and contained in Act itself. rules challenged. Court laid down Hershall
doctrine/lockwood doctrine and held that Parliament is supreme. If Parliament says so, court
cannot have jurisdiction.

Minister of wealth v. Yaffee 1931: Parliament passed a law. Laid down rules and regulations
under the Act and deemed as enacted by the Parliament under this Act. Question was that whether
court’s jurisdiction was barred. Lockwood doctrine was overruled by this case. Yaffee doctrine:
court said no matter rules and regulations shall be deemed as enacted by Parliament, Court’s
jurisdiction cannot be ousted if there is substantive ultravires.

Anisminic Limited v. Compensation commission, 1969: Egypt nationalised the Nile river.
They also took over many British co. working in that area. Treaty was entered into by Britain and
Egypt under which Egypt gave Britain lump sum amount for taking over British Co.

Read from PDF titled SATURDAY

Principles:
 Presumption of constitutionality of the delegated legislation: the burden of proof is on that person
who challenges the rules and regulations
 When two interpretations are possible, courts generally accepts that interpretation which upholds
the constitutionality of the legislations
 Court do not judge the constitutionality based on idealism or dogmatism but on contextual
pragmatism
 Court take into consideration the generality and they are not guided by freak exceptions: if
delegated legislation appear to be valid in a majority of the cases, then the court may ignore a few
cases where such delegation is unconstitutional
 They can even read up or read down the law to make it constitutional
 The judicial review of delegated legislation cannot be barred.
 In the rules and regulations, if the Act is put in 9th schedule, the rules and regulations can still be
challenged
 If the parent Act is deemed unconstitutional, then rules and regulations ipso facto become
unconstitutional
 Court cannot review policy matters unless there is violation of fundamental rights

Grounds of judicial review of delegated legislation:

 Enabling Act is ultra vires the constitution: the doctrine of excessiveness. The act passed by the
legislature is itself unconstitutional and therefore, the rules and regulations under it are also invalid.
Enabling act can be declared unconstitutional on following grounds:
o When it violates the express provisions of the constitution. e.g. that the enabling Act violates the
fundamental rights of the people [Chinta man Rao v. State of MP, 1951: Problem in MP that
during agricultural season, much labour was not available for agricultural work because they were
all involved in the manufacture of bidis. In order to solve this problem, law was passed and the
governemtn was authorized that if it thinks proper, it can completely prohibit the manufacture of
bidis during the agricultural season. Held that this blanket power violates the freedom of trade and
thus ultra vires the constitutions]; K Parsdurang v. AP, 1985: Under the essential commodities
Act, a list was given of 7 commodites and laid down that every trader shall sell all the 7 items and
he will display the price of these item, argued that it is against the FR of trade and we cannot
compel a person to sell something, held that act itself is unconstitutional.
o That the parent act violates the division of powers: parliament cannot delegate the power to make
rules on the subjects of state laws.
o Extra territorial operation: state law applies only to the territory of the state. If the Act authorises
the state government to make rules and regulations with extra-territorial application, it is
unconstitutional
o Ex-post facto legislation: criminal law cannot be ex-post facto
o Violation of the commerce clause: the parliament has the power to make rules and regulation about
inter-state commerce. State government cannot make nor can be given power to do so.
o Article 311: certain rights to the government servants. State cannot make a law which violates
Article 311.
 Enabling Act should not violate the implied limitations of the constitution: implied limitation
which are given in re delhi laws act. This is second part of the doctrine of excesiveness:
o If the enabling act does not lay down any policy or guideline and delegates law making power to
the administrative authority then it shall be deemed that the act violates the implied limits the
constitution. e.g. Mohini Jain v. State of Karnataka, 1992: there was a problem of capitation fee
by medical colleges. Legislature passed Karnataka education institution prohibition of capitation
fee act, 1984: capitation fee is to be prohibited. Act does not lay down the definition of capitation
fee and does not lay down the policy what it wants to prohibit. What fee will not come within the
prohibition is also not there. the Act says that any fee charged in excess of fee prescribed by the
government is capitation fee. Government decided that if the student is from within the state, his
fee would be 20000 but 60000 if he is from outside the state. Question: whether 60000 is a
capitation fee? Held that Section 2d of the Act is unconstitutional because it violates the implied
limits of the constitution as the legislature has not laid down any policy. Same is the Hamdard
dawakhana Case.
o St. Jose Training Institute v. National Council of Teacher education, 2003: in order to
improve the quality of the teacher training Act was passed. NCTE was established. Power to
regulate the teacher education. One of the provision: no person can open an education institute
unless he gets permission from the government. In this case, the permission was denied. They
challenged the Act: nowhere policy has been laid down as to acceptance or rejection fo the
permission. Held: if we see various notifications issued from time to time, then the policy becomes
absolutely clear and so far the policy is concerned we have to see 5 and 6 things:
 The subject matter of law;
 Scheme and purpose of the law
 Provisions of the statute
 Facts and circumstances of the case
 Nexus between rules and policy
 Rules are ultra vires to the constitution: act is constitutional. But rules and regulations are
unconstitutional.
o Dwarka Prasad v. State of UP, 1954: UP wants to regulate the trade in coal and therefore UP
Coal Act was passed under which a coal controller was established. Coal controller was given
power to make rules and regulations under the Act. There is no problem with the Act but controller
has made certain rules: controller can exempt any person from the requirement of license in
exercise of his discretion. This rule was challenged as violative of Article 19(1)(g) as blanket power
to negatively affect the fundamental right.
o Kerela Samasthana Chethu Thozhili Union v. kerela, 2006: there is an Abkari Act dealing with
intoxicating substances, 1902. Under this power is given to the government to make rules and
regulations and so government decided that all the trade in intoxicating substances shall be
nationalized. All the licenses of the private operators were cancelled. Government established its
own shops. Because of this, so many people became unemployed. So, government made rules in
order to help those unemployed people. relevant rule: every person who has lost his job will be
given 30000 as compensation; all the new license holder to whom the government may gave
licences, they shall compulsorily employ at least one person from the retrenched employee in order
of seniority. This rule was challenged and the ground of challenge was that compulsory
employment besides violating Article 19 1 g, also is invalid because it is beyond the policy of the
law laid down by the legislature [policy is only to regulate trade in intoxicating substances]. Power
to rehabilitate the retrenched worker is not the policy. Held: rules are invalid.
 Rules and regulations are ultra vires the enabling Act: they are beyond the scope of the policy of
the Act.
o That the rules and regulation are beyond the policy laid down by the Act itself: Kerela
Samasthana Chethu Thozhili Union v. Kerala.
o Ajoy kumar Banerjee v. UoI, 1984: general insurance business nationalization Act, 1972. The
administrative authority is created to reorganize general insurance and the rules and regulation
framed lay down the pattern of salary of the employees. Court held that rules and regulations are
in excess of the policy of the law.
o Kunj Bihari lal butail v. HP, 2000: ceiling of land holding act was passed. They fixed the land
holding. State was given power to make rules and regulations. One rule was that tea estates shall
be exempted from ceiling. Court held that rules and regulation are in excess of the policy laid down
by the law. The policy of the law is that the government has to enforce the ceiling law. The above
rule if for providing for exceptions.
 Rules and regulations are in direct conflict with the enabling Act. Second part of rules being ultra
vires the enabling Act
o A K Roy v. State of Punjab, 1986: Food Adulteration Act. Food Health Authority is created to
enforce this Act. Power to the authority to make rules and regulations. Act says that every
prosecution under this Act shall be taken in the name of the Food Health Authority. The Authority
made a rule that food inspectors can initiate prosecutions in his own names.
o DTC v. BBL Hazela, 1972: DTC Act was passed which laid down that a person with certain pay
bracket shall be dismissed or disciplinary actions can be taken only by the General Manager.
General Manager made a rule that this can be done by assistant general manager. Direct conflict
with the Act. Rules invalid.
o Corporation Bank v. Abharan Sale Bullion Merchants 2009: Act provided that if any excess
tax has been deposited by any person, it must be refunded. Rules and regulations framed under
the Act laid down that the if the excess tax has been deposited, it shall be readjusted against the
other obligations. Rules and regulations are in direct conflict.
 Rules and regulations are in excess in the power but not in the direct conflict:
o Dwarka Nath v. Municipal Corp Delhi, 1971: Government passed Prevention of Food
Adulteration Act. It provided that government can make rules and regulations to protect people
against misleading quantity and quality of food stuffs which are marketed in packages. Rules made
therein laid down that every manufacturer shall write on the label the name and address of the
corporation in Hindi and English both. A company was prosecuted because they had not written
the address in detail in both the languages, though the address was there. Court came to the
conclusion that rules are in excess of the power. Thus the rules are ultra vires the enabling Act.
 Rules are ultra vires the procedures laid down in the enabling Act [Procedural Ultra Vires]:
o Banwari Lal v. State of Bihar, 1961: Mines Act. Central government has the power to make rules
after consultation with the mines board. Rules without consultation. Procedure violated.
o State of Odisha v. shridhar, 1985: parent act laid down that before you make rules and
regulations, publish them first in a draft form in the odia and hindi daily. Invite objections, consider
them and then finalize the rules. The rules were published in the English daily and in the gazette.
The court held that rules and regulations suffer from procedural ultra vires because very few read
English dailies.
o District collector, Chittor v groundnut traders association, 1989: essential commodities Act
gives power to the admin authorities to make rules after consultation with the central government.
It was not consulted. Court held that rules suffer from procedural ultra vires.
 Rules and regulations are inconsistent with the general law of the land:
o Certain rules have been made which have the effect of repealing any existing law. E.g. Kerela
Samasthana Case, 2006: the government made rules under the Abkari Act which had the effect
of overruling the industrial dispute Act. It had made rule for the rehabilitation of the retrenched
worker. This had the effect of overruling the industrial dispute Act as this is the law which comes
into operation when a business is cloased down and there is a question of rehabilitation of the
worker. Held: invalid on the ground that they have the effect of repealing the existing law.
o However, rules by which we trying to avoid a direct conflict with the existing law. Contradictions
can be allowed but complete negation is not allowed. E.g. A V Nachane v. UoI, 1982: it was laid
down that the rules and regulations framed by the government shall have the effect irrespective of
anything contained in any other law for the time being in force. The rules were regarding the
pension. It was argued that rules are invalid because they had the effect of repealing the existing
law. Held: it is simply an attempt to bypass the contradiction which is there in the ordinary law. It
is valid.
 Rules and regulations are mala fide:
o They show bad faith. They show bad motive, a different purpose for which the law making power
has been given. They are motivated by extraneous considerations.
o Law passed by the legislature cannot be challenged on the ground of mala fide. Why? Because of
generality of the law, legislature is an elected body. Legislature is a responsive body. It is
accountable to the people. They represent the faith of the people. Their procedure for making law
is highly transparent and open.
o However, mala fide can be claimed against administrative rule making in certain situations because
administrative rule making cannot be so general as the law is. Admin authorities may not be a
representative and responsible body. The procedure may not be transparent. There is a possibility
that the power can be misused. Therefore, if the power used for other motives than warranted for,
then can be challenged for ultra vires.
o E.g. baily v. Conole, Australia, 1931: the Act was passed by the legislature to allocate bus routes
to the government buses and the private owners. Rules framed. They were framed in a manner
that those routes which were highly profitable and there was no competition with the trains, those
were taken over by the government. Rest of the routes were given to the private bus owners.
Challenged for extraneous motives. High court quashed the rules.
o Drugs and Cosmetics Act gives power to the controller to make rules for the availability of drugs
and cosmetics freely in the market at the reasonable price and quality. The drug controller makes
a rule and makes it compulsory for the clone manufacturers to add 1% poison to it. Reason was
that it was brought to the notice of the controller that there are many compulsive alcoholics who
 are drinking such material. Because this rule is made for this extraneous consideration however,
the power is to certify purity. Power is being used to promote prohibition. Therefore, held as
malafide.
o Law passed by the legislature cannot be challenged for mala fide. There is no guarantee that if the
majority institutionalizes itself, then why it will not misuse its power. In Subramanian Swamy v.
Director, CBI, 2005: the argument was that if administrative rule making can be challenged on
the ground of mala fide, why not the law of legislature, especially where majority has been
institutionalized. The decision has not come.
o When the mala fide is written on the face of the law, the court will not imagine that law of the
legislature cannot be challenged.
o State of Rajasthan v. Union of India, 1977: after the election, Congress came into power in the
centre. They took the plea that when the people have elected a congress government in the centre,
this means people have rejected any other government in the state. On that account, president
declared president rule in 9 states. Challenged on the ground of mala fide. Held: people elect centre
and state governments with different considerations. Mala fide.
o when action is mala fide.
 manifest error in the exercise of power. Doing something for which one is not authorised
 non-application of mind
 when one has considered irrelevant factor or not consider relevant factors.
o Karnataka State Transport Authority v. Karnataka, 1986: the power was given to the authority
to make rules and regulations regarding the issue of licenses and all other things relating to
transport. Regional transport officer shall grant license on preference basis to all those persons
who are recommended by the tourism ministry. Held: mala fide. Completely taken away the
discretion of the administrative authority.
 Violation of natural justice:
o When required by the parent Act during making rules
 Rules made ignoring natural justice. It would be violating the provisions of the parent Act.
 State of Tamil Nadu v. K Krishnamurthy, 2006: mines and mineral regulations and
development Act, 1957: this Act lays down that before the government terminates the license of
any person, he must be given three month’s notice and proper hearing. Power to authority to make
rules. Rules which allowed termination of a mining lease without notice and hearing. Held:
violation of natural justice and also the violation of the parent Act.
o Parent Act is silent, but if the body has made rules which have the effect of divesting a person of
a vested right, then principles of natural justice demands that he must be given notice and hearing:
 Gutka Pan Masala v uoi, 2004: rules and regulations made by which total ban on gutka was
imposed. Rules did not provide that notice and hearing should be given. Held: rules and regulations
should have provided for some notice and hearing because people are being devoid of their
business.
o if the rules and regulations have the effect of repealing the parent Act. E.g. In re Delhi Laws Act.
Power to repeal is an essential function and cannot be delegated. However, if one has certain rule
which allow one to pass certain contradiction, then such contradiction can be resolved.
 One has sub-delegated his power to make rules and regulations without the authority of law:
o Where the legislature has put the power to make rules and regulations, only that authority can
make rules and regulations. The authority cannot shift the locus of the power.
 Rules and regulations have been given retrospective operation without authority:
o Unless authorised by the parent Act, retrospective operation cannot be given.
o Even if the law allows, but if it violates the provision of the constitution, then such retrospectivity
can be considered as unconstitutional. E.g. criminal rules and regulations cannot be made with
retrospective operation under Article 20(1). These are known as ex-post facto legislation.
 If the rules and regulations are arbitrary:
o Arbitrariness and unreasonableness share the common space. Before 1974, Article 14 was
considered to be violated if the legislative classification is unreasonable. Equality does not mean
uniformity. Equality means that law must be the same for those persons who are equally
circumstanced.
o Unreasonable classification: no intelligible differentia, intelligible differentia has no relevance to
the object which the law strives to achieve. Article 14 was available only against this.
o This happened Royyappa v. Tamil Nadu: Article 14 is not merely confined to unreasonable
classification but also applies to arbitrary state actions. If any administrative action is arbitrary, it
can be challenged on the ground that it violates article 14.
o Municipal corporation made a rule to prohibit street singing. Sometimes, it crowds the pavements
and the user of the pavement will face difficulty. Without any research, that how the pavement
uses are getting inconvenience. People can apply for licenses if they wish to continue it. House of
lords held it to be arbitrary.
o In another case, municipal corporation made a rule that no one sing or play music within 50 yards
of any residential building. Held that it is not arbitrary.
o Marido Chemicals v. Union of India, 2004: law was passed. People were taking loans and not
returning money. Debt Recovery Tribunal Act was passed. Under this case, it was laid down that
 bank can file cases against defaulters but they shall have to deposit first with the tribunal 75% of
the claim that they are claiming. Held: arbitrary.
 if the rules and regulations are vague and uncertain, then it shall be considered to be invalid because
there must be clarity in the rules that the person can know which actions are prohibited and what
is allowed. But if the rules are vague, then the rules and regulations are invalid. E.g. Municipal
Corporation London made a rule that no person can fly gliders in any public park if it causes
annoyance to the persons in the park. What is annoyance? When it be caused? Therefore, the court
held that such rules are invalid. The court always takes into consideration contextual pragmatism.
E.g. Maharashtra State Board of Education v. Paritosh, 1954: 1000s of students sit for the
high school examination of the Maharashtra board. Education board makes a rule that no
revaluation or inspection of the answer sheet shall be allowed to any persons. This was challenged
before the court on the ground that this takes away the right of a person to a reasonable decision.
Held: the rule is valid keeping in view the inpractibility of revaluation and showing the answer
sheets to students.
 Where rules and regulations violate the common law rights of a person: Sophy Kelly v. State of
Maharashtra, 1976: common law rights are those which are given by long customs and traditions.
In convent education schools, there is a long tradition that everyone is not allowed to take the high
school examination unless he has shown a certain level of academic progress. It is the right to the
head master to detain any student from taking the examination. A rule was framed by the
Maharashtra government that no head of the institution shall have a right to detain the examination
form of any student. All the forms should be submitted to the board. Challenged by Sophy Kelly
on the ground that it violates her common law right. Held: rule is no valid because it violates the
common law right.
 Rules and regulations framed by the administrative authority are unreasonable:
o What is reasonableness?
o How to determine reasonableness?
o If we divide the human civilization into three phases: dark age, renaissance or the age of reason
and the present age (age of realism), then we find that when the age of reason began (17th century
onwards), people started talking that rule making action of administration is unreasonable. Dark
Age: the age of blind faith. One does not question anything and accept whatever is given. Absolute
faith in the authority. Blind faith. One cannot reason how and why but accept. It is an age of
absolutism. There was no dissent and experiment. No individual exception. When the industrial
revolution started, at that point, people started talking of science and technology and age of reason
began. No blind faith, people need proof. Relativism. Dissent allowed. Individual exceptions taken
 into consideration. In this age of reason, whenever any administration action was taken, people
started asking that whether the action is reasonable. The 21st century is considered as the age of
realism. We go beyond reason and concentrate on the benefits accruing to man. Therefore, the
courts developed this reasonableness as a ground for invalidating administrative actions and
decisions. People started demanding reasons from the administrative authorities for their actions.
What was the advantage?
o Concept of reasonableness enhances the faith of the people in the system. It made the
administrative system sound. It made the system transparent. It made it possible to know that all
the issues are addressed by the administrative authority.
o From where this ground of reasonableness emerges. In Britain, the requirement of reasonableness
may arise from the act of the parliament. They may say that administrative authority shall give
reasons for their reasons. It may also arise from the requirement of the common law. Common
law require that whenever an administrative decision is taken which deprives a person from his
right of legitimate expectation, then reasons must be given. It also arises from rule of law and
natural justice. It also arises from Human rights Act, 1998 and other EU obligations. It also arises
from Tribunals and Enquires Act, 1958: when a tribunal decides any matter the decision must be
supported by the reasons.
o In America, the requirement of reasons arises from
 Due process clause
 Administrative procedure Act
o In India, this requirement arises from
 The act of the legislature either expressly or impliedly: when the parliament delegates power, there
is always a presumption that the parliament intends that the power be exercised reasonably and
fairly
 Article 14: arbitrariness is the antithesis of reasonableness
 Article 19: only reasonable restriction can be imposed of FRs
 Due process of clause of Article 21
 Principles of natural justice and rule of law
 Power of judicial review
o When the rule making is reasonable? Every case has to be decided on its own merits.
Reasonableness means three things:
 The decision should not be arbitrary: it should not be based on whims and sentiments. There must
be substantial reasons to support it.
 Unreasonableness is something which is unjust: which is unfair
 Which is impartial: no inequality
o Two tests to determine reasonableness:
 Wendsbury’s test: laid down by House of Lords in the case of Association of Provincial Picture
Houses v. Wednesday, 1948: in England, the cinema houses were closed on Sundays. There was
a demand that they should remain open. So therefore, Wendsbury Municipal corporation had the
rule making power and they made a rule that cinema houses shall remain open on Sunday also but
no child below the age of 15 shall be admitted. Challenged on the ground of unreasonableness and
arbitrariness. A test was laid down: 1. If the administrative authority has no properly conducted
itself in law, they have acted beyond the authority of law, then it is unreasonable; 2. If the authority
while taking a decision has not considered all relevant factors; 3. That they have taken into
consideration irrelevant factors; 4. The decision shows bad faith and motivated by extraneous
consideration; 5. That the action is so outrageous in define of logic and standards of morality that
no man of ordinary intelligence and prudence can reach such a decision on given facts and
circumstances.
 Test of proportionality: Wendsbury test is more based on subjectivity and thus less trustworthy.
Here, the court will see: 1. The purpose of the law; whether that purpose is legitimate; whether the
purpose is constitution and intra vires. 2. What means have been achieved by the administrative
authority to achieve such object. 3. Whether the same result could have been achieved by some
less burdensome means. 4. What is the nexus between the means and the ends. This test was being
applied by the Indian Supreme Court earlier also in cases of violations of fundamental rights.
o Manro v. Watson, 1887: law passed by the municipal corporation prohibiting people from singing
on streets without license from the municipal corporation. Held: restriction is unreasonable. If the
singing does not disturb anybody, then why restriction has to be placed. They applied the
reasonableness test.
o Kruse v. Johnson, 1898: in this case, the municipal corporation made a rule that no person is
allowed on the street, but cannot sing within 50 yards of residential building. Held: rule is
reasonable because they had to balance the private peace and tranquillity and the right of the
persons to sing.
o Unreasonable: when the rules are manifestly outrageous, directed towards a secondary ends, no
reasonableness can be found, partial in applications. No justification can be found in the mind of
a reasonable person.
o Arlidge v. Islington Borough Council, 1909: in exercise of its rule making power, municipal
corporation made a rule that every owner of a property who has given his property on lease shall
be responsible for the cleaning and painting for such premises at least once in every year. There is
 a provision for penalty and criminal prosecution is provided for the same. One person challenged
this on the ground that this is unreasonable: suppose, one person is so poor that he is not in a
position to provide paint every year. It would be punishing a person for his poverty; when a person
has given his property on lease, then the owner cannot enter the premises without the permission
of the occupier and therefore, without his permission it is not possible for the owner to paint the
premises. He may not allow the owner for the occupier may be disturbed. Court held the rules and
regulations as unreasonable.
o Chester v. Badeson, 1920: the government made a rule that if any property of any person is in
the possession of a defence personnel, then he cannot get that premises vacated from him. He
cannot have the access of courts in order to get the premises back. This rule was based on the
requirement that when the soldiers were on the front, their families should not be disturbed.
Challenged on the grounds of unreasonable: access to justice is a fundamental rights of everyone.
Access to courts have been blocked which is also a common law rights. Held unreasonable
o Raymond v. Honey: a rule was framed by the prison authority that if a parole application is
rejected by the parole board, he cannot challenge it before the court. Held: unreasonable. One
cannot deny a person access to the courts.
o POSITION IN INDIA:
o Article 14: equality outlaws unreasonableness.
o Article 19: it bars unreasonableness. Only reasonable restrictions can be imposed.
o Article 21: due process clause. If the procedure laid down by the legislature or the rules framed
deprives one’s right to life and liberty, then the procedure must be just, reasonable and fair.
o Ancient Concept of dharma: government has to exercise its power in a reasonable manner.
o State of MP v. Laxmi Fabrics, 1975: the government in exercise of its law making power
imposed tax on fabrics. Challenged. It was proved that the tax is so high that it is also confiscatory.
Court held that generally the courts do not interfere in tax matter, but if it appears to the courts
that the rate of tax has been so arbitrary, irrational or confiscatory, then it can be declared
unreasonable.
o West Bengal Electricity Board v. Desh Bandhu Ghosh, 1985: in order to regulate the services
of the employees, the government made a rule in exercise of its power under Article 309.
Government can terminate the service by giving three month’s notice and employee can also resign
in the same manner. Court held the rules as unreasonable. Court takes into consideration the socio-
economic context. In the age of rampant unemployment, no person shall be ready to leave the job
by giving three month’s notice, however, government can use this rule in arbitrary manner.
Reasonableness has to be judged in the pragmatic context.
o Gujarat university v. Ranjit Bhat, 1996: government wanted to regulate admissions to the super
medical specialities. They made a rule that the first preference will be given to those students who
have done their post graduation from the same medical college. The second preference to those
who have done their post graduation from any other college within the state. If the seats are still
vacant, they will continue to be vacant. Challenged by a student domiciled outside. Held: the rule
is unreasonable.
o Air india v. narbish Mirza, 1981: air hostess case. Air hostesses were allowed to marry but their
services were terminated on first pregnancy. Held: patently unreasonable.
o Anil kumar v. board of education, Haryana, 1990: board made a rule that 10% marks may be
given as grace marks for entering into compartment exam. But, no grace marks were provided for
passing the examinations. Court held that such rule is unreasonable.
o Bombay dying and manufacturing co. v. Bombay environment action group, 2006: there is
a town and country planning act. Government has the power to frame rules and regulations. In
Bombay, there was a serious problem that the textile mills were in financial distress. They were
becoming sick. Lot of unemployment was taking place. Though they were located outside the city
earlier, they were within the city now due to growth of the city. They had huge campuses and lot
of land was lying unused. Government passed a rule and allowed the sick mills to change the land
use with the permission of the government. They were allowed to sell the open land to the private
developers so that they can build housing facility for the people. this was challenged by Bombay
Environment Action group: the rule is unreasonable because it will destroy the environment of
Bombay and the open spaces will not be available in future. The development has no commitment
for environment protection and inter-generational equity. Court did not deem it unreasonable as
the mills also require money for they are sick. However, the court made a remark: if the
development is completely violative of sustainable development and inter-generational equity, then
such rules and regulations can be deemed as unreasonable.
o Indra vadan v. state of Gujarat, 1996: high court made a rule that a civil judge who has completed
45 years of age will not be considered for any promotion. Court held that this is unreasonable.
o Meenakshi v. DU: medical college entrance examination. Rules framed that even if a person is a
resident of Delhi, but, if they student did not have the +2 education in Delhi, then he will not be
allowed to take the medical entrance examinations. What about those people whose services are
transferable. Court struck the rules.
 Rules and regulations cannot be made with retrospective effect unless the law authorises. Any
public power is not one’s person power. It is the people’s power which has been given by law in
 trust to the authority. When he is a trustee, he has to show that this power has been exercised for
the benefits of the people.
o B . S. Yadav v. State Harayana, 1981: government has power to make rules and regulations with
retrospective effect. In Haryana, for a very long time, the rule was that the seniority of a
government servant will be determined based on the joining date. Government decided to change
this rule. Seniority will be determined from the date of confirmation in the services and not from
the date of joining. This date is different for different persons. Suddenly the seniority list changed.
The challenges is before the SC. Even if the government has the power, it shall have to show to
the court what social purpose you want to achieve with such change in the law. When government
was unable to do so, the court quashed the amended rule.

Principles of Natural Justice

Also called as principles of procedural fairness, principles of universal justice, justice of the nations,
common sense justice, principles of fair play in action, procedural fairness, juristic humanism.
These principles share space with rule of law and separation of power because the whole purpose
is to confront the absolutism of the state. In American jurisprudence, they them as the principles
of due process. In continental juris, they call it principle of proportionality. In common law juris,
we call them as principles of natural justice. Considered as soul of admin law.

Even the most severe substantive law can be accepted by the people provided it is fairly and
impartially implemented.

Purpose of natural justice:

 The history of liberty is the history of procedural fairness because people were willing to accept
the harsh laws of the monarch but they did not like was that they were not fairly and impartially
implemented. E.g. Manga Carta, 1215. Purpose of this law was to introduce procedural fairness in
the administration of justice because during the monarch period, monarchs had the complete
discretion to provide death sentence to anyone. The whole struggle of the liberty was the history
of procedural fairness in the administration of justice. An agreement was reached between the king
and the people that no person can be punished unless a judge vocates [ask a person if he has
committed the crime], investigates and decides the matter.
 To bring fairness by limiting the powers.
 To protect the life, liberty and dignity of the individual.

How the concept developed?

 Whole history of human civilization is the history of the quest of the people for controlling the
abuse of power by the state and to protect the life, liberty, property and dignity of the individual.
People wanted an answer to this quest. This quest is eternal as this is relevant even now. In
democracy, it is against the tyranny of the majority, the quest is how to protect our life and liberty.
As long as, state is there, people is there, this quest would be there. due to this process, the concept
of due process, the concept of separation of power and rule of law and the development of the
concept of natural justice happened.
 This can be find in the writings of Roman and Greek jurists. In Roman law, they had two law
courts. One called jus gentium and other was called jus civile. In the civil court, law passed by the
parliament was applied and in the other court, the best practices of the Roman Empire, all the
countries around were laid down. Jus gentium was based on the process of fairness. Natural justice
can also be traced to Stoic Philosophers of 300 BC to 200 AD. They were struggling to find out
that how we can control the arbitrary exercise of power by the state and protect the liberty of the
people. They came with the philosophy that nature is based on certain fundamental principles,
those principles are rational and universal. By the exercise of right reason, we can draw the
fundamental principles out of the law of the nature. Man can know those principles by the exercise
of right reason. Those principles can be freedom, equality, uniformity, fairness etc. There is an
inherent rationality in them. These are universal. Therefore, they can be used to interpret the law
passed by the state. Any law which violates this principle is not rational and valid. If a state law
violates the principles of the higher law, then the state’s law is not valid. Everybody has a right to
violate such a law.
 During the medieval period, the natural justice principles were identified by the law of god [1225-
1274]. Thomas Equinas, Bishop: God is the source of all justice and fairness, God’s law must
prevail over the written law. There is a law of god which have been given and need not be proved.
 Modern periods: age of reason. They started questioning as to how nature can give law to the
people. where is god. They provided that these principles of procedural fairness is not based on
any derivation from the law of the god or law of the nature but based on the natural instincts of
men as to what is right or what is wrong. On this natural instinct, certain principles can be derived.
Those principles are inherent in every human being. They are based on reason and not faith. They
are like the rule of geometry which are exact and universal. Therefore, the source of this principle
of fairness it the men himself.
 In the modern times, these principles have been developed by the courts.

Definition of Principles of natural justice:

 These are the ethico-legal principles based on the natural sense of men of what is right or what is
wrong developed by judges to bring fairness, reasonableness and justice into the administration.
They are developed by the Courts to bring an element of fairness into all administrative actions.
Principles of natural justice are the principles of law and morality. What equity was to common
law, the principles of natural justice are to statutory law. They try to mitigate the harshness of
administrative actions. The earlier instances which we see about this concept can be traced in
England. The first case decided by the Courts is known as Dr. Boniham’s case, 1610. Another
case was Bagg’s case, 1615. A person was disenfranchised because of certain actions by the state
without any notice and hearing. The court held that the law of the parliament is invalid as it violates
principles of natural justice. Dr. Bentley’s case, 1723: Cambridge University cancelled the PhD
degree of this person. Ground: in one of the meeting, by asking a question to the Chancellor, you
insulted him. Without any opportunity to this person, his degree was cancelled. Held: violation of
natural justice. At that point of time, no matter the parliament was supreme, it was not supreme
to the extent that it can violate the higher law.

Characteristics of the principles of natural justice:

 They determine the level of civilization and culture of every society. In a society where the
principles of natural justice are respected and enforced, that the fairness prevails in the society,
then the society can be deemed as culturally and civilizationallu strong.
 It is a judge made and judge lead concept. Therefore, it is highly vague, complex and ambiguous
concept. The principles of natural justice are not like the provisions of law. They are highly vague
is because purpose of natural justice is to do fairness. If a concept is so vague and ambiguous, what
is the practical efficacy of such a concept.Iin Rich v. Baldwin, it was held that if a thing cannot be
nicely cut and dried, it does not mean that that thing does not exist.
 What spirituality is to religion, natural justice is to law. Spirituality means the moral consciousness.
The morality of the principles of natural justice enlivens law and give a touch of fairness,
reasonableness and justice to the principles of law. Thereby, they make legal justice, social, people
oriented and substantive justice.
 The principles of natural justice are flexible and not rigid. They are not like the provision of law.
They are highly contextual and pragmatic. Principles of natural justice are not like a bull in a china
shop or bee in the bonnet. Union of India v. P K Roy: the factors when natural justice principles
can be applied. It depends on the kind of action which is under challenged. If the action is quasi-
judicial, then the principles of Natural justice are attracted with full force. If the action is
administrative and quasi-legislative, then PNJ are not attracted with the same force. Also, nature
 of the right affected also decides the applicability of PNJ. If fundamental rights affected, then with
full force. Also depends on the policy and scheme of the law. It also depends on the other relevant
facts and circumstances of the particular case.
 Principles are natural justice are different from the principles of the justice of the nature. The
fundamental principles of the law of nature is the survival of the fittest. Survival of the fittest
means that the strong will always over the weak. The principles of natural justice ensures that the
weak shall prevail over the strong and the weak and strong both can exist in the state of fairness
and reasonableness.
 Principles of natural justice aim at individualization of justice. Many a times, generality of law
conflicts with the specifics of life. Therefore, the principles of natural justice make general justice
individual justice.
 Principles of natural justice were not developed to destroy law but to fill it. Therefore, in case of
conflict with law, generally law shall prevail. Where the law is silent on certain points and the law
is unfair, then equity shall fill that particular gap. Equity law can be compared with PNJ. In
England, justice was done with common law and customs of the people. Later on, it was found
that in certain circumstances, there is custom or tradition. There are certain problems before the
courts, where customs if applied will not result in justice. So therefore, equity courts where the
clergy presided, developed certain principles of fairness, reasonableness and justice. These
principles mitigated the harshness of common law. In case of conflict between law and equity, law
prevails. E.g. Cooper v. Wandsworth, the law is that if one trying to make new contruction, give
7 days notice to the municipal corporation. If notice not given, municipal corporation can
demolish the construction. Law was silent. Therefore, the court held that fairness demands that
notice and hearing should be given. In Olga Tellis case, people were doing their business for a
long time on pavements. Without notice and hearing they cannot be disbursed from the
pavements. No matter the fact that law does not require for notice and hearing, fairness requires
that notice and hearing must be given. Where the law is silent, the PNJ shall prevail. Can the
principles of natural justice be excluded by law? If the law is absolutely clear and vocal and is based
on reasonable grounds and excludes the PNJ, then law shall prevail. E.g. Article 311 of the
Constitution. it says that no government servant can be dismissed from service without proper
notice and adequate opportunity to defend himself. But, law says that there are two exceptions to
this: where it is impracticable to give notice and hearing to the government servant; where it is in
national interest and security of the state. Law excludes PNJ in these exceptions. If the law violates
the PNJ in a situation where fundamental rights are violated, then the PNJ cannot be excluded.
Where the application of the PNJ would result in unfairness, then PNJ can be excluded by law.
 When PNJ apply?

 Early approach in England was that the PNJ apply when the action of the administrative authority
is quasi-judicial.
 In local government board v. Arlidge, 1915: a building had been unfit for human habitation.
Therefore, the municipal corporation appointed an inspector to inspect and make a report.
Inspector went there. He inspected. He talked to the persons there and prepared a report. It was
presented to the minister. He approved that report. The building was ordered to be demolished.
Against this decision, the occupants of the bulding approached the court on the ground that when
the minister approved the report of the inspector, at that time, we were not heard. Even the report
of the inspector was not given to us. Therefore, there is a violation of PNJ. Court held: No. because
the action of the minister in approving the report is administrative and not quasi-judicial.
 Franklin v. Minister of Town and Country Planning, 1948: minister wanted to develop a new
township near London. For this purpose, whole land was to be acquired. Acquired. Before
acquiring land, there is a provision for public hearing. Public hearing given. Inspector prepared a
report. Gave it to the minister. Before this was approved by the minister, he went for a tour to the
area. He found people very angry. They shouted at the minister when he held the public meeting.
They insulted the minister. He became angry. He came back and approved the inspector’s report.
Land acquired. Challenged before the court for element of bias. He was not applying his mind
while confirming the report. Violation of the PNJ. Court: PNJ are not attracted because the act of
accepting the report of the inspector is an administrative action.
 R v. metropolitan police commissioner, ex parte Parker, 1953: Parker’s driving license
cancelled without any notice and hearing. The act of cancelling license is an administrative function
for being disciplinary matter. PNJ wont apply.
 Nakuda Ali v. Jay ratne, 1951:
 These cases made the growth of administrative process as dark. Light was restored to this area in
1964 when House of Lords decided Ridge v. Baldwin. If the person suffers any civil consequence
because of any administrative action which may be quasi judicial or administrative, the PNJs are
attracted.
 In 1969, change came in India. Kraipak case: Now for the application of the PNJ, the distinction
between administrative and quasi judicial has become thin. Justice must be seen to be done. When
a person suffers civil consequnces, PNJ applies
 When a person sufferes civil consequences;
o When he suffers an infraction of his personal or property rights.
o Where a person has suffered any pecuniary damages, material deprivations
o They are attracted even if one has not suffered pecuniary disadvantage, but rights have been
violated.
o PNJ are mandatory in criminal cases
o When there is a violation of one’s civil liberty
o Even if one has suffered non-pecuniary damages. It can be in aesthetic sense. E.g. taking away of
the passport
o When the action of an administrative authority carries stigma.
o No matter your no right is violated. Even if legitimate expectation [legally protected expectations]
are violated.
 If there is a statement of policy which government claims that they will follow. Policy is not law.
However, legitimate expectations arises out of that policy. If the government changes its policy
without any reasonable ground, then PNJ applies. The policy must not be in violation of law.
 R v. Secretary of State, Home Affairs, ex parte Khan: government issued a policy statement
that if any British national adopts a child from foreign country, he will be given entry visa. A British
National adopted a child from his family in Pakistan. When he applied for entry visa, it was refused.
He goes to a court. He argues that his legitimate expectations have been violated. Held: violation
of natural expectations.
 Policy can be changed. However, there must be a reasons for the same. The change must be in the
public interest and reasonable.
 Doctrine of estoppel: where state has made any representation to you either by conduct or by
promise, then State shall be bound by it if it has changed the situation to your disadvantage. In
Estoppel, the person can claim benefit when the other party has changed its position to his
disadvantage. But in legitimate expectation, even if the change does not cause disadvantage, still it
can be challenged.
 R v. Durham County Council, ex parte Curtis, 2000: there is an old age home run by the local
government. The government suddenly closed the old age home without any recourse to the
people of that area. The court came to the conclusion that the local government has violated the
legitimate expectation. Alteast people should have been informed about the closure.
 Bone transplant facility of the government. Suddenly, this facility was closed down. Held:
legitimate expectations of the people violated. Indeed that there is not probation to close down a
facility, but an opportunity to the people should be given to put forth their point of view.
 In India, SC welfare association v. State of Karnataka, 1991: there is a Karnataka Slum Area
Improvement Act, 1973 which provides that the government the condition in the slum area. Under
 this Act, government issued a notification. They gave a list about certain slum areas which would
be improved in the current year. Without any reasons, second notification was issued in which
certain slum areas were dropped. court held that this is the violation of legitimate expectation. It
is being done to enforce the concept of responsible government.
 Rashid v. Home Secretary, 2005: Home Department has made a policy that we shall grant
asylum under particular conditions. The government is acting on those particular policies.
However, this policy was not made public. But government is operating on that policy. Rashid
applies for asylum. His application of asylum was refused. It was challenged in a court of law. The
home department admitted that they have a policy and that they are operating but it has not been
made public. The question is that if he does not know what is the policy, how would expectation
even arise. The Court said that violation of legitimate expectation is a case of abuse of power. So
it is not material that policy must be in your notice and then it should create an expectation within
you. Even if there is a policy on which government is acting, if they do not grant policy benefit in
a particular case, it is a case of abuse of power. Therefore, it is a violation of the principle of natural
justice.

Can a difficulty in applying the PNJ can be a ground of violation of PNJ.

 Bhagwant singh v. Commissioner of Police, 1985: the court held that if it is impracticable, then
ofcourse the principle of natural justice are not applied. But PNJ cannot be violated on the ground
of mere difficulty. A right which is involved is basic right. Reasonableness demands that mere
difficulty is not a ground for denying PNJ. If an FIR has been filed, and after investigation the
government decides that there is nothing in this particular FIR and thus files FR in the court, the
court says that the person who filed the FIR must be informed and heard. Police argued that what
if the person is dead. Court held that next kin must be informed. How to find the kin? Mere
difficulty cannot be a ground for denying PNJ to a person. Impracticability and impossibility can
be reasons for denial of PNJ.

Principles of Natural Justice:

 Nemo judex in cuasa sua: no one should be made a judge in his own cause. The rule against bias.
 Audi Alterm partem: hear the other party before you take a decision which would adversely affect
the civil position. The rule of fair hearing.
 The rule of reason: one must give reasons for the decision. Americans call it right to speaking
order. When the admin authorities are giving decision, their decisions must be supported by valid
 reasons. Some say that this requirement of giving reasons is already covered within the rule of fair
hearing. The hearing is not fair if after the hearing, the admin authority does not give reasons.

Rule against bias

 This rule has been drawn from a French word biasis which means something which is oblique and
not very clear, straight. This doctrine of bias is based on the psychological principle that very few
people have the capacity to take decisions against their own interests. If a person has an interest
in the decision which he is going to take, then he cannot give an impartial, just, reasonable and fair
decision.
 Still there will be certain persons who can take decisions against themselves. Here, he may have
taken the right decision, but it may not appear to the people that he has taken a right decision.
Therefore, what is being violated is public confidence in the administration and the justice delivery.
Public confidence is at stake.
 Judge like Caesar’s wife should be above all suspicion. There should be no iota of doubt on his
impartiality. Otherwise, people would lose faith in the system.
 Dr. Boniham’s v. College of Physicians of Cambridge University: administrators have been
given quasi judicial power would be inclined to impose as heavy fine as possible has they have
interest in the quantum of fine. The action is violated by PNJ. The law of the parliament was
supposed to be under common law of England.
 Dictionary meaning of bias is one sided inclination or one sided swing impulse. It means prejudice,
favour, hostility, pre-disposition, disfavour etc. in admin law sense, it means an operative prejudice
in relation to a party or an issue before an administrative law.
 Non-apparent or sub-conscious biases are always there. e.g. bias in favour of family person,
religious persuasions of a person etc. One cannot eliminate certain kind of biases.
 However, if a person is sitting as a judge, then what level of bias should be there to disqualify a
person as a judge. However, courts have tried to identify certain types of biases which disqualify a
person from acting as a deciding officer:
o Apparent bias or real danger bias:
 PNJ lay down that there is an automatic disqualification of the adjudicator in these kind of biases.
This is present when we need no evidence to establish bias. E.g. if the adjudicator has the financial
or proprietorial interest in the subject matter. However, this interest must be substantial. In this
age, people are having a lot of investment. E.g. having minimal shares in the company does not
show bias. E.g. municipal corporation increased the fare of the buses. Case comes before the court
and one of the argument is that raise is arbitrary and unreasonable. Therefore, the rates were
 quashed. It was challenged before the court on the ground of financial bias that the judge also
travels by public transport. Court held that the financial interest should be substantial and different
from a common man.
 Where a person is himself a party to the dispute. E.g. In a factory, the manager was assaulted by
the labourer. Therefore, inquiry was instituted. This manage is now the enquiry officer. He is a
party to the dispute, therefore, there is bias.
o Real likelihood of bias: in likelihood of the bias, there is no automatic disqualification. Every case
has to be decided on its own merits. Everything depends on evidence. In this test, the judge
evaluates the evidences on record himself and tries to see the possibility if there is a substantial
possibility of bias. This test is inward looking. It does not go beyond the record. The court will
not see the actual bias because it is difficult to prove. Concern is not whether he was actually bias,
the question is that on the basis of material on record, whether the possibility of bias is there.
o Reasonable apprehension test: Here, the court will not look to the possibilities but to the
probabilities of bias. This test is outward looking. The court is trying to see the probabilities. Judge
would try to find out whether a man of ordinary prudence can come to the conclusion that the
judge was bias.
o EU courts in the matters of violation of human rights case use the phrase ‘appearance of bias.’
Real possibility of the bias. The House of Lords laid down that the test is whether a fair minded
and informed person having considered the facts and circumstances will conclude that there is a
real possibility of bias.
 In India, allegation of bias on the basis of religion, ethnicity, national origin, gender, age, class,
political affiliations, membership of the societies is not considered a sufficient bias.

Different kind of biases:

 Personal biases: there are factors which exists between the adjudicator and the person who is
adjudicated which are personal in nature and which create a possibility of bias. There may be
friendship, ill will, animosity between them etc. so in case of personal bias, one has to prove that
there is a real likelihood of bias. E.g. A K kripak v. Uoi, 1969: The selector had a type of personal
relationship with a competitors and there was a real possibility that there would be personal bias.
There was a clash between his personal interest and interests of the competitors. S P Kapoor v.
Uoi, 1981: a person was there as the head of the department in the officiating capacity and he was
writing the confidential reports of other persons. When it came to departmental promotions, he
was also a candidate. At the departmental promotional committee, confidential reports written by
him were considered. Held: personal bias. Mineral Development Corporation v. State of Bihar,
 1960: a person was the owner of a mine corporation which had the license from the government
to operate certain mines. It was a permanent lease. He received a notice from the minister of mines
that kindly explain why your license should not be cancelled as you have violated certain conditions
of the license. He replied that he has not violated any condition. Certain period of time passed,
nothing happened. Suddenly, notice issued and license cancelled. This decision was being
challenged and one of the ground was personal bias. Evidence was that the minister in the last
general election was also a candidate and was defeated by the mine owner. Thereafter, there was
so much animosity between the two that the minister had filed many false criminal charges against
the mine owner. This raised so much heat that mine owner approached the SC to transfer the case
out of Bihar. On these evidences, it was held that there is an element of personal animosity. State
of UP v. Mohd. Nooh, 1958: there is a police constable. He is a habitual absenter from duty
without application. Now, he is absent from duty for about a month. This time a departmental
enquiry was instituted against him. SP was the enquiry officer. The plea of this constable is that he
was severaly ill and thus could not communicate. Everybody believed that he was telling a lie.
Therefore, he was trying to produce medical certificates, brought witnesses from the village. This
SP he became so annoyed that he left his seat and offered himself as a witness against the constable.
He stated that the witnesses are fake and the constable is a habitual absenter. He submitted a report
that constable’s services be terminated. Challenged on the ground of personal bias. A person
cannot be adjudicator and witness at the same time. D C Agarwal v. State Bank of India, 2006:
D C Agarwal was working in SBI. Some problem with the colleagues and filed 3-4 criminal cases
some colleagues of the bank. Cases are pending. There is a question of his promotion. Bank
constituted a promotion committee. Some of the members of the committee were the person
against whom he had filed cases. They recommended that he is not fit for promotion. Challenged.
Held that there is a real possibility of personal bias.
 Doctrine of waiver: can personal bias be waived? The law is that one can waive personal bias and
it would be presumed that one has waived his right to challenge when the affected party submit to
the jurisdiction of the person against whom personal bias is alleged. One has to take an objection
against personal bias at the earliest opportunity.
 Doctrine of necessity: if under law, only one person can take a decision, and you say that this
person is bias, then who will take the decision. If this is the situation, then the doctrine of necessity
shall apply and the decision shall not be challenged on the ground of personal bias. Either accept
a bias decision or not decision at all. E.g. impeachment petition given by 50 members of the Rajya
Sabha against a judge. Speaker is the sole authority to admit or not to admit the petition. If the
judge says that this speaker is biased for presence of personal animosity. No other person can
 decide, therefore, decision by speaker is bound by the reason of necessity. E.g. Judge has the power
to decide the contempt case; speaker has the power to decide on impeachment of the judge; dispute
regarding age of the judge can be decided only by the president of India; whether RTI’s applies on
Supreme court or not can be decided by supreme court only. A K Yadav v. Haryana, 1985:
Haryana public service commission conducted the examination. Therefore, interview was held by
it. No other person can hold the interview except the public service commission. Many relatives
of the members of the public service commission were to appear for interview before them. When
the list was published, many relatives of those members were selected. This was challenged before
the SC on the ground of personal bias. SC said that doctrine of necessity shall apply. Therefore,
one cannot do anything and we need to except this state of affair. When it created controversy,
President in 2009 sought the opinion of the SC on this doctrine. Again, the SC reiterated the same
point. Kingsley v. UK, 2002, EU Human rights court: under the Gaming Act, a gaming board
was established. It had the power to grant or not to grant license to any person. The chairman had
the final authority. He was speaking at some function and during the speech he made a reference
to certain person and he said that a person like him should not be given license for him being the
most undesirable person for game like horse racing. Therefore, this person applies for the license.
He did not get it. He says that there is a gross violation of personal bias. Court came to the
conclusion that doctrine of necessity shall apply. From this decision, appeal goes to EU human
rights court. It decided that if there are situations like these, then either the court must itself decide
whether the license is to be given to be given or not or the court must appoint a board to decide
it. However, the controversy is whether any court has such power in the domestic jurisdiction.
 Pecuniary Bias: it is an apparent bias. If the deciding officer has a financial or property interest in
the matter, it disallows the person from giving the decision. Boniham’s case, 1610. Dimes v.
Grand Junction Cannel Co.: the case against the co., the person who was deciding this case
(Lord Chancellor) has some shares. Even then he decided the case. Held by house of lords that
there is an element of pecuniary bias. Actual bias need not be proved. One has to prove the
possibility of bias. Justice must be seen to be done. Jee jee bhoy v. assistant collector, Thana,
1965: a land was acquired for the purposes of the co-operative society. Ultimately, case comes
before the SC. He case is listed and bench is constituted. Justice Gajedragadkar is the member of
the bench. As soon as the case was open, it was mentioned that this is a co-operative society where
you have certain share. Justice said that he will not hear the case. In this kind of the scenario, the
problem is that when investment by the middle class is very common. If officers start recusing
themselves, then who is going to hear the cases. for this purpose, in USA in 1993, they framed a
recusal policy. It said that it would not serve any person if the judge recuses himself as an abundant
 caution where he has slightest interest or his relative has slightest interest in the subject matter of
the case. Judge should recuse only when they have substantial investment in the subject matter.
The judge shall reveal the percentage of interest in the subject matter, then if the party agrees to
proceed then he should go on with the case. If the parties disagree, then he should recuse. In 2007,
a case was filed in the SC against the Vice President, it was argued that one of the judge should
recuse. Court asked what is the personal bias. On many occasions, both the persons had gone for
hunting together and they are friends. Judge says that I will not recuse because if you think that a
judge of the US can be purchased so cheap, then this nation is in for a big trouble.
 Subject matter bias: r v. Deal Justices, ex parte curling, 1881: in England, there is a very
prestigious society: Royal Society for prevention of cruelty to animals. Cruelty to animals is a crime.
A person is being prosecuted. He is brought before the judge. Judge punished him. This was
challenged on the ground of subject matter bias: this judge is a very active member of the royal
society. Therefore, it is his commitment and thus he cannot be objective. The court said no, mere
involvement in the subject matter does not entitle the judge from recusing unless more evidences
are brought. Murlidhar v. Kadam Singh, 1954: election petitions were being decided by
tribunals. The BJP MLA has challenged the election of a Congress MLA. The wife of the chairman
of the tribunal is an active member of the congress party. Held: evidence not sufficient to prove
that the mind of the judge was so clogged that he was not able to think of anything else.
 Policy bias: Pre-conceived notion bias. In USA, policy bias is not considered as bias if the policy
is regulatory in nature. Government makes a policy and therefore all its officers are required to
faithfully believe in that policy and execute it. In England, sometimes, they take into consideration
that one’s mind is absolutely closed to justice owing to policy bias, then such bias can be
considered. E.g. Franklin v. Minister of Town and Country Planning, 1948: minister wanted
to acquire the property for airport and therefore he conducted an enquiry through an inspector.
People were angry. Inspector prepared a report. Minister went to the people for public meeting.
Minister became angry as people protested. He said that it is my policy and I will see that this
policy is executed. This was challenged on the ground of policy bias. In this case, House of Lords
did not decide that whether there can be something like policy bias. However, they said that
function of the minister in approving the report of the inspector is an administrative function. In
these functions, PNJ are not applied. Had it been a quasi-judicial decision, bias could have been
challenged. In India also, Policy bias is not recognized as a bias. Policy bias for the administrative
officer is very natural as the very work of the officer is to execute the policy. Other evidences are
required to be presented to prove that mind of the person concerned was completely clogged.
Public policy questions can be decided only when they violate the constitution and are arbitrary,
 unreasonable or mala fide. In Balco Case, before deciding on the policy, the workmen were not
heard when Balco was privatized. Court said that it is a question of policy and therefore the PNJ
are not attracted.
 Departmental Bias/Official Bias/Institutional Bias: where the prosecutor and the judge are part
of the same department, there is a combination of the function of prosecutor and the judge in the
same department, then there would be departmental fraternity and therefore, the action may be
vitiated by departmental bias. Where the government formulate a policy and the government itself
gives the hearing. E.g. G Nageshwar Rao v. Andhra Pradesh State Transport Corporation,
1959: the government of AP took a policy decision that road must be nationalized. Transport
department of the government prepared a scheme as to how a road is to be nationalized. It was
prepared, published in the newspapers and the private bus owners were given an opportunity to
make representations. The Secretary transport department gave them the hearing. After hearing,
he concluded that road will be nationalized. This decision was challenged on the ground of
Departmental bias. They argued that it is the scheme of the transport department, and he has
invited objections, he has given the hearing, it is simply a false attempt. The SC says that is a case
of departmental bias and it quashed the decision of the government. This decision was criticized
on the ground that when government makes a scheme, therefore if the hearing is to be given, it is
to be given by the government officer. When we say that he is biased, then who will give the
hearing. After the scheme was quashed, the department again issued the scheme and this time
minister of Transport gave the hearing. Minister also decided that there is no substance in the
objections and the roads are nationalized. Again challenged. This was known as G Nageshwar
Rao v. Andhra Pradesh State Transport Corporation II, 1959: Court by now had realized the
mistake and therefore here the court held that there is not bias. In the first case, the secretary gave
the hearing and being an employee of the government, he is bound by the policy. However,
minister is not an employee and therefore he is not bound as the secretary is bound. In America,
they have developed an institution of hearing officers. The federal government maintains a list of
all those persons who are qualified to be judges. From this list, federal government sends a persona
and hear the matters. Though the decision is not binding, but has recommendatory value. In
England, they have the institution of hearing inspectors. The government would call one hearing
inspector. They can take an independent decision. Hari v. Commissioner of Police, 1965: it was
brought to a notice of the court that a bad character person has entered the jurisdiction of the
police station and it was decided that this person should be externed from this area. Proceedings
initiated. Deputy SP was appointed as the hearing officer. The person was given notice and hearing
and after that report was prepared. It was decided that person has to be exterened. This report was
 placed before SP and he approved it. This was challenged on the ground of departmental bias.
Junior giving hearing and superior approving it. SC held that if the hearing and deciding officers
are different but they are from the same departmental, the departmental bias shall not be attracted.
Krishna Bus service v. State of Haryana, 1985: Government buses and private buses are
competing on roads. Government makes a rule and give the general manager of the Haryana
transport corporation the power of DySP. Therefore, he has the power to inspect any bus at any
place and take any action if there is a violation of any provision of law. He can impound the bus
also. He can cancel the license also. This was challenged on the ground of departmental bias. He
is the head of the department and that department is competing with us. Now the manager of the
department has been given police power and thus he shall be using it for the benefit of his
department. Court held that there is an element of departmental bias. Kondla Rao v. AP
Transport Corporation: Government wanted to nationalize road in AP. A core committee was
appointed. Secretary transport, minister, and other persons wer the members of the committee.
They came to the conclusion that it is feasible and beneficial and thus nationalization was decided.
Scheme was prepared, objections received, Home secretary gave the hearing. He was also the
member of the committee. It was argued that there is an element of departmental bias. The court
concluded that departmental bias is not attracted unless one brings more evidences to show that
mind of this person was completely clogged and was not able to apply reasons. Institute of CA
v. A P rao, 1986: Institute of CAs: there was some disciplinary matter. Inquiry committee. They
gave the hearing. Prepared the report. Placed it before the final disciplinary committee. This final
authority had two members which were common [members of the inquiry committee and the ex-
officio members of the final authority]. Approved the report. Challenged. Held: there is a
departmental bias as the final approval of the report is given to a committee where the two persons
were same who had actually prepared the report. Hindustan Petro Chemicals v. Yashwant,
1991: Corporation by law had been given power to lay pipelines on private lands also. Law provided
that if during laying of the pipelines, there is some damage to the property to the owners, then he
will be paid compensation and a member of the corporation can be appointed as the hearing officer
and he can recommend compensation. Corporation has damaged the property. Court held that
there is an element of institutional bias as the deciding officer shall have the interest of the
corporation in biased.
 Obstinacy bias: when one is not open to reason. One wants to stick to one’s own decision. State
of West Bengal v. Shivanas s Pathak, 1998: a workmen of a government organization filed a
writ petition that in this corporation, my promotion is due and therefore, court must direct the
corporation to finalize the promotions. The judge agreed to the petition and ordered the
 government to promote these people. This case went in appeal before the division bench. It was
overruled. After 2 years, the same people again filed the writ saying that my salary must be fixed
according to the norms to which I was entitled under the order passed by the single judge of this
court. Judge refused. Case goes in appeal. In DB, the same judge is also there who has decided the
petition of these people. There, he approved it knowing that his earlier decision was overruled by
the DB. He was so committed to the cause that he allowed the case. Case goes to the SC, it was
held that a judge should not be so obstinate that his decision should always be upheld. Therefore,
it is a case of obstinacy bias.

Rule of fair hearing [Audi Alterm Partem]:

In India, there is no code of fair hearing. In AMmerica, they have Adminstrative Procedure Act,
1946 which lays down the contents of the fair hearing. In England, we have tribunals and enquires
Act, 1977. Fair hearing is such a fundamental principle of fairness, reasonableness, rule of law that
it is said that even god does not violate the rule of fair hearing. Whenever a person suffers a civil
consequence, he is entitled to fair hearing. It is necessary because it shows respect for the
individual. Fair hearing will always improve the quality of administrative action. Any decision taken
without hearing the other party may make the administrative decision arbitrary, unreasonable,
unfair. E.g. Cooper v. Wandsworth. If they had given him a hearing, they would have come to
know that notice was given to the corporation. Fair hearing avoids the chances of arbitrary and
whimsical actions. Fair hearing enforces accountability. It infuses transparency and fairness in the
administrative actions. If a person has suffer penal consequence, there is absolutely no doubt that
fair hearing is inherent in the action. The earliest stance of rule of fair hearing was Bagg’s case,
1615. A person insulted the Mayor and without notice and hearing, he was disenfranchised. It was
held that this is a violation of common law. Another historical case is Dr. Bantley’s case, 1723:
in this case, Dr. Bentley was a PhD. Was Cambrigde University. The charge was that he has
insulted the chancellor of the University by asking certain questions to him. It was the principle of
common law that where a person suffers civil consequence, he shall be given hearing. No
agreement can substitute the requirement of PNJ. The PNJ are mandated by three sources:

 constitution:
o Article 21’s due process,
o Article 311
 Law:
o E.g. mining Act: if mining lease is to be revoked, the licensee must be given 3 months’ notice and
heard
 Mandated in situations where law is silent and person suffers civil consequence:
o the PNJ will be implied here
o Cooper v. Wandsworth:
o Olga Tellis case:

How much the PNJ shall be applicable? On what factors the PNJ are attracted?

 The nature of administrative action: if administrative action is quasi-judicial: where the authority
is under the duty to act judicially, the PNJ are attracted with full force and the court shall apply the
first scrutiny principle but if the action of the administrative authority is administrative, then the
PNJ are not attracted with full force. In that case, only requirement is that the authority should act
fairly because the purpose of PNJ is to judicialise the administrative process but to bring an
element of fairness into it.
 It depends on the consequence of the action: if the actions are severe, then the PNJ are applicable
with full force.
 It depends on the facts and circumstances of each case.

Components of fair hearing:

 Notice: if some actions is being proposed against a person which has a civil consequence, then the
proceeding shall start with a notice. The term notice has been derived from a latin word notecia
which means information, something being known. In legal sense, it means the knowledge of the
facts. Fact means a thing, state of thing, a relation of thing, or any psychological condition of which
one person is consciousness. One can get knowledge of a fact by two means:
o Actual: when one knows a particular fact
o Constructive: presumption of law where a fact may not be in one’s actual notice but law shall
presume that one knows that particular fact. In certain situation, keeping in view the normal course
of human conduct, the law presumes that if the situation is such that man of ordinary intelligence
and prudence would make inquiry and know the fact but he is deliberately denying inquiry, then
law will presume that one knows the fact.
o What a notice must contain? The facts and circumstances of the case, the summary of the charges,
the actions proposed, the authority, time and place where the enquiry is going to be held. It must
be adequate. It means that it gives one sufficient information that what is the case against you so
 that you can properly defend the case. Notice must be adequate. If notice is not sufficient, then
PNJ are violated. When it is adequacy
 It depends on facts and circumstances
 It is a justiciable issue.
 It must not be vague and must give an exact situation.
o E.g. a person had many license from a company. He receives a notice that show cause why your
notice should not be cancelled. It is vague as it does not specify which license.
o Difficulty in giving notice is not a good Defence. Unless it is impracticable, it’s not considered to
be a good defence. E.g. Bhagwant Singh v Union of India: person who filed the fir must be
given a notice before filing fr.
o Notice cannot be claimed as a matter of course or formality because PNJ are the principles of
reasonableness and fairness. Therefore, one cannot always claim that PNJ are violated as notice
was not given. One has to prove the prejudice caused. E.g. Keshav Mills v. UoI, 1973: keshav
mills after doing business for a long time, was in a trouble and at the threshold of being closed
down. The government took action under Industrial development and regulations Act and
appointed a inquiry committee to find the problem of this mill. The committee heard the propriters
and came to the conclusion that the reason for this is financial difficulty. They are not getting loans
from the bank. Report submitted. The government assumed the control of keshav mills. This take
over was challenged by the propritors on the ground that they were not given any notice before
this. The court held that committee had given you enough opportunity. The reason of closing
down would be financial difficulty. What is the prejudice caused to you? No prejudice and notice
cannot be asked as a matter of right.
o Illegal encroachment on the government property. Owner was given notice and hearing and was
asked to remove the structure. He did not and thereafter the property was demolished. This was
challenged on the ground that I was not given any notice before demolition. The court held that
PNJ are not like rules of law, they apply only when there is an element of unfairness.
o Notice may be individual or collective. Shiv Sagar Tiwari v. UoI, 1997: many out of turn
allotment of government property were made. It was challenged. The number of allotment was
not known. A general notice was released in the newspaper calling all those who have been given
allotment to appear. It was argued the individual notice was not given. Held: when the number is
indeterminate, collective notice can be given.
o If the notice is not given, the proceedings become irregular and not illegal. Instead of quashing the
action, the court may ask the person to start the proceedings de novo.
o How notice is to be served? It is to be served by personal service, post, may be published, may be
sent by electronic media or it may be published in any customary manner as to bring the fact to
the notice of a person. Notice can be pasted on the wall of the house.
o The requirement of notice can be waived by the person. But statutory notice cannot be waived.
Requirement of notice may be waived in following cases:
 When a person makes a suo moto representation.
 When a person has a knowledge of all the facts e.g. Keshav mills case
 When a person has not suffered any prejudice e.g. a person is on probation, after probation,
services may be terminated and for that notice and hearing are not necessary unless some charges
are raised such person.
 Can be waived when a person voluntarily participates it the proceedings.
 Right to know the adverse evidence: if the law provides a mode, then such mode must be followed.
When law is silent, then it can be brought to notice by various means: giving copies, giving
summary of documents [it can be risky unless it is faithful]; can be asked to come and inspect the
file, can be asked to take notes and photographs of the evidences. If there is some evidence which
is highly confidential, how it is to be given? E.g. in cases of espionage, terrorism. In England there
is a concept of special prosecutor or independent prosecutor. Such person is given the information
but he cannot transfer it to another. The fundamental rule is that one must have all the evidences
which are against you. Nothing should be used against a person unless it is brought to his notice
and he has been opportunity to rebut. Takshawari cotton mills v. Commissioner income tax,
1955: commissioner asked a report from the department. This report was used by him to take a
decision but it was not disclosed to other party. Held: violation of PNJ. The negative confidential
reports of government servants cannot be used against them unless they have been given a copy
of such report and opportunity to rebut. Bank of Patiala v. S k Sharma, 1968: bank officers
service regulations: these provide that whenever there is a disciplinary enquiry, three days in
advance he must be given the copy of all the evidences against him. This is a statutory rule. that
person was called to the office and was given the file to read it and to make notes out of it. After
the enquiry was over and action was taken against him, challenged before the court that there is a
violation of statutory provision. If law lays down a particular manner and that manner has not
been fulfilled, then what? The court held that where there is a procedural matter and it is statutory,
the person has a right to waive it. If he has waived it knowingly and no prejudice has been caused
to that person, he cannot claim the violation of the procedural requirement. However, he cannot
waive the substantive part of the regulations.
 Right to present the case: one can present the case by writing or orally. If there is a violation of
personal liberty under Article 21, then right to present the case orally is a part of due process. In
the same manner, if oral hearing is part of a statute, then it must be complied with. Problem arises
when the statute is silent, whether oral hearing or paper hearing, which is the part of PNJ. Unless
the oral hearing is a part of the constitutional mandate or statutory requirement, oral hearing is not
a part of PNJ. Unless one can prove that without oral hearing, one has suffered serious prejudice.
Every case has to be decided on its own merits. It may be a part of the constitution under Article
311, it may be the requirement of the law like the motor vehicle act, civil service rules. But where
the law is silent, oral hearing is not a part of natural justice. Union of India v. J P Mittal, 1971:
judge of Calcutta high court. My DoB is not correct and I have still 3 more years to go. Kindly
correct the go. Article 217(3) : is the dispute is regarding the age of the judge, the dispute is to be
solved by the Prez. Prez asks justice to present all the evidences to prove his case. Sent. Thereafter
he writes to the president that before you decide the case, I would like to be orally heard. President
declines and he gives a decision that the age written on record is correct. Challenged before the
SC: I was not orally heard even after the request. Court held that oral hearing unless mandated by
the constitution or law is not a part of PNJ, unless the other party has been orally heard, or when
one can show to the court that one has suffered some definite prejudice. Unless an oral hearing is
a mandate of due process under the constitution or a mandate of the statute, oral hearing is not
considered to be the part of PNJ unless a person has suffered a serious consequence and prejudice.
When unfairness would be caused:
o When the other party has been orally heard;
o Where the circumstances are such that if the oral hearing is not given, it would create a serious
prejudice or hardship to the other party;
 Where the matter is technical & legal and the person is poor and illiterate as he would be not be
able to express himself in writing effectively
o Where stakes are very high:
 Where a person is going to lose job or property. E.g. Olga Tellis case: where the persons were
going to lose an opportunity to earn a living; ridge v Baldwin
Position in England: unless the statute requires, oral hearing is not a part of natural justice. Unless
the fairness at common law requires the application of the PNJ. If a person suffers disadvantage,
then fairness at common law requires oral hearing. E.g. Cooper v. Wandsworth.
Professor wade says that the word is hearing, that a person should be heard, so hearing means
hearing through ears and not hearing through eyes. Reading cannot be hearing. Therefore, in every
case, oral hearing is part of PNJ. this was the dissent of Justice of Fazle Ali in A K Gopalan case:
 majority says that if the detained person is given an opportunity to express his case in writing, oral
hearing is not required.
America: Unless the statute provide, or it is considered a part of due process, oral hearing is not a
part of natural justice. Oral hearing v. Oral argument: witnesses may be orally heard, oral argument
is not necessary. Even then, when a serious prejudice would be caused to a person, oral hearing
would be a part of due process.
To what extent the authority should help you to present the case? NMT Co-operative society v
state of rajasthan, 1963: there was some inquiry under motor vehicle act and the person
concerned gave a list of eight witnesses to the hearing officer for examinations. Therefore, the
hearing officer issued summons to those persons for appearance. The persons did not appear, now
this society wants the government to issue coercive process like warrant so that the witnesses could
be brought to the court. Government refused. Case to the SC. It says that so far as summons is
concerned, it is okay, however, coercive process cannot be issued by the government. It is duty of
the person to bring the witnesses on his own. A K Roy v. UoI, 1982: preventive detention case.
Before the advisory committee, the detenue wanted certain witnesses to be examined in his favor.
Witnesses did not appear. Wanted the board to issues coercive process. The court held that it is
the duty of the concerned person to keep the witnesses ready and the government will not issue
coercive process.
However the government cannot put impediments if the person wants certain witnesses to be
examined. Murtaza hussian Ansari v. state of UP, 1984: before UP service tribunal a case is
going on. A service matter concerning DSP. He wants that there are eight witnesses and wants
tribunal to examine them. Tribunal says that kindly deposit 900 rupees for TA, DA and daily
expenses of the witnesses. He was not in a position to deposit the amount. The SC held that this
is a violation of PNJ.
If a hearing has been fixed and the witnesses could not appear and the person asks for
adjournment, can it be granted as a matter of PNJ. court held that fairness demands that reasonable
adjournments must be given.
How to represent the case? Can one be represented through a legal representative or whether
representation through lawyer before administrative authority is part of natural justice or not?
 Right to rebut evidences: one has received notice, know the evidences, given an opportunity to
present own case, then opportunity to rebut the evidence. Two things are important here:
o Whether the PNJ includes right to cross examination? Right to cross examination is an inherent
part of the criminal justice system. Witnesses are not supposed to be independent and honest and
thus cross examination is warranted. It is not part of PNJ and administrative proceedings unless
 some unfairness is being created. State of Jammu and Kashmir v. Gulam Mohammed, 1967:
An inquiy was conducted against him. Many witnesses deposed on an affidavit and the copies of
these affidavits were given to Gulam Mohammed to explain and contradict such depositions. He
was found guilty. This was challenged on the ground that I had no opportunity to cross examine
the witnesses. The SC held that administrative process cannot be judicialized in the same manner
as the judicial process is, therefore, unless some prejudice is shown, cross examination is not part
of PNJ. However, if the witnesses have not deposed on affidavit and where their statements are
oral and the other person is not present, then perhaps one can say that there is an element of
unfairness if the person is not given the right to cross examination: UP ware housing
corporation v. vijay, 1980. Therefore, the law is unless the cross examination is mandated by the
constitution and due process includes cross examination under Article 21 or is mandated by the
law [CrPC, service rule], however, it is not the part of PNJ. When such prejudice can be said to
be caused:
 Where a person suffers a serious civil consequence: there is a loss of livelihood. Town Area
Committee v. Jagdish Prasad, 1978: a person’s services had been dismissed. The witnesses had
orally deposed. Court held that it is a situation where the person should be allowed to cross
examine witnesses.
 Where the witnesses have orally deposed and their depositions have been taken into consideration:
e.g. S C Girotra v. United Commercial Bank, 1996: in this case, the Bank instituted a fact finding
committee against an officer to come to the conclusion that whether a disciplinary committee is
necessary or not. In this committee, the person who was doing inquiry took evidences from various
people working in the bank and prepared the report. On this basis, disciplinary committee was
constituted and the aforesaid report was considered by the disciplinary committee. But it was not
disclosed to the other party. Therefore, the court held that in these circumstances, a serious
prejudice has been caused and the other party should have been given the opportunity to rebut
those evidences.
 Where technical questions of law and facts are involved and the person has humble qualifications:
in these situations, he may be allowed to cross examine the witnesses.
 Where the denial of cross examination will result in failure of justice: e.g. State of Kerala v. K C
Shaduli, 1977: sales tax officer imposed a best judgment assessment on the assesse on the ground
that the tax return which has filed are wrong. He came to this conclusions as he found that there
are certain entries in the books of the wholesaler from where he used to get the items, but in
dealer’s books there is no mention about the same. Without allowing any cross-examination,
 assessment was given. Challenged. Court quashed it on the ground that denial of cross examination
would result in the failure of justice.

However, one’s plea of cross examination will not be allowed:

 On the ground of impracticability. . E.g. when the result of the entire centre was cancelled for the
reasons of mass copying. Cross examination cannot be given to everyone.
 If there is no personal stigma involved and no prejudice is caused
 In preventive detention cases because names of the informants cannot be disclosed.
 Where it will not result in fairness. If one allows cross examination, then it will result in unfairness.
E.g. Hira Nath Mishra v. Rajendra Medical College, Patiala, 1973: where cross examination
would not result in unfairness, cross examination not warranted. on a day of holi, certain medical
college students from the boys hostel forcibly entered into girls hostel and misbehaved with the
girls. Those girls they made a complaint to the principal of the medical college giving the name of
those boys and demanded a disciplinary action. Enquiry was instituted. The girls were asked to
identify the students from the photos of the students present in the Proctor’s office. They gave
their individual statements also. Then the copy of the complaint was given to the boys but the
names of the complainants were not disclosed. All the evidences were given in copy. Boys were
expelled from the college. It was challenged on the grounds of, inter alia, we were not given the
opportunity to cross examine the witnesses. SC said that when the copy of the evidences had been
given to you, you were given the opportunity to rebut and it is situation where disclosing the
identity would have resulted in unfairness.
 Where cross examination would completely result in the failure of administrative process. E.g.
Under Gunda Act, where bad charactered person are tried in a summary manner and then
evidences are collected against them from the informers. However, people are reluctant to depose
against them. Therefore, if cross examination is allowed, the entire process shall fail. Therefore,
cross examination cannot be said to be part of the PNJ.
o Whether the PNJ gives one a right to be represented by a lawyer? Representation by lawyer is not
a part of PNJ unless the circumstances are such where it will be unfair not to allow a lawyer to
represent the party. E.g. legal representation is allowed to one party and not to other. If the matter
is such that assistance if not given would cause a serious prejudice, then it is part of PNJ. However,
representation through a lawyer is always a part of due process under Article 21. Under
Administrative procedure act in USA, right to a representation through a lawyer is a part of due
process. Therefore, assistance of lawyer is never denied. If assistance of a lawyer is not allowed,
 one is always allowed the assistance of a friend as a common law right. However, such friend
cannot be lawyer. In India:
 Many statutes prohibit representation through lawyer. E.g. in the beginning, Family Court Act
prohibited representation by a lawyer; preventive representation Act, essential supplies Act: when
inquiry is to be held prohibits such representation, foreign exchange regulation Acts.
 In some situations, assistance can be provided with the permission of the authority. E.g. Industrial
Dispute Act, CCA Rules relating to inquiry of government servants
 Where representation of a lawyer is allowed as a matter of course. E.g. income tax Act
 In criminal cases, representation through lawyer is mandated by Article 21. Nandini Satapathi v
P L Dani, 1978: right to a lawyer is not confined to a trial but are entitled to it at the investigation
and remand proceedings. Legal aid is a fundamental right under Article 21 of the Constitution.
 If one party has been allowed the benefit of a lawyer, then this cannot be denied to the other party.
E.g. a dispute. Person wanted labour leader to represent himself. This was refused as the rules
provided representation only by a worker in the factory. SC held that right to be represented by a
friend cannot be taken away but it can be friend. Therefore, when one says that friend should be
an employee of the factory, then it is constitutional.
Representation by a friend? Can the choice of friend by regulated by the law?
 No evidence should be taken at the back of the other party: this does not mean that one has to be
always present when the evidences are present. The only requirement is that evidences are to be
brought to the notice of the other party. In courts, no evidence can be taken by a judge if the other
party is now knowing of such evidences. Even if the judge wants to talk to one party in his
chambers, he cannot talk alone, the other party has to be present in the chamber. Off the record
consultation is not allowed. How far this principle may apply to administrative adjudication. This
principle was developed by house of lords in Errington v. Minister of Health, 1935: the minister
of health decided that a certain building has become unfit for human habilitation and therefore
must be pulled down. For that, he appointed an inspector to make inquiries. The inspector visited
the sight. He called the owners of the building and also the residents. He heard both of them.
Collected evidences. Everything was done in the presence of each other. Somehow, he thought to
visit the second time. This time, owners were not informed only residents were informed. He
discussed the matters with residence and collected some evidences. On that particular basis, he
prepared a report, it was presented before the minister. He approved. This decision was challenged
on the ground that evidences were taken at the back of the other party. The court quashed the
decision of the minister but this expression that no evidences may be taken at the back of the other
party should not be interpreted in a literal manner. It can be interpreted in literal manner only in
 judicial adjudication. This principle only means that the enquiry officer can take evidence in any
manner he like, but the requirement is that all those evidences and which are considered against
that person must be brought to the notice of the other party and he must be given the opportunity
to rebut. If this is done, the requirement of this principle is met. One can have any consultation,
even off the record, but if such evidence is used against the other party, he should be given the
opportunity to be heard. This was again a question before the SC in Hira Nath Mishra case:
they said that during collection of the evidence, we were not present. The court said that this
doctrine should not be interpreted literally, the evidences were brought to your notice and you
were given the opportunity to rebut and thus no violation of PNJ. In Ceylon University v.
Fernando, 1960: a case of misconduct against a student. It involved a teacher of the university.
Inquiry. Teacher gave evidence against the students in his absence. However, the student was
informed about the evidence and was given an opportunity to rebut, the court said that this is not
a PNJ that both the parties must always be present face to face when the evidences are being taken.
Position in America, under Section 5(c) of the Administrative procedure Act, off the record
consultation is prohibited unless opportunity is given to the other party to participate. Even if the
administrative officer is taking an official notice of any act, even that must be brought to the notice
of the other party and the other party shall be given the opportunity to rebut.
 One who decides must hear (rule against divided responsibility or rule against institutional decision
or rule against anonymous decisions). In court situation, one who decides also hears. In
administrative justice system, one person may hear and other may decide. This is known as the
problem of institutional decisions. Divided responsibility is unfair because the people who are
presenting their case before the hearing officer knows that he will not be deciding the case and
thus is discouraged to give the Defence. Also the person deciding the case does not get the
opportunity to witness the demeanor of the witnesses. All the executive actions are taken in the
name of the President and the governor and thus it is impossible for them to hear all the matter.
They have to take help from their sub ordinates. This rule of one who decides must hear was
developed in Morgan v. US: secretary of agriculture was supposed to hire certain godowns and
therefore, he was to decide the rent. Therefore, the subordinate officer gave hearing. He made
certain recommendations, file went to the secretary and he approved. This decision was challenged
on the ground that the person who heard did not decide. The court quashed the decision of the
secretary. However, if we read the decision in detail, we will say that while approving the report,
the secretary exercised his independent mind. He should be have independently analyzed the
evidences of the witnesses and then decide. He just mechanically approved the report and thus
held that this violates the PNJ. This decision stands for the proposition that if some other person
 is hearing and other person is deciding then the deciding person must exercises his independent
mind and must not mechanically sign it. Therefore, if he exercise his independent mind, then it is
equivalent to one who decide must hear. On the same notes, tribunal system was started so to
enable hearing authority to decide. Local Government Board v. Arlidge (UK): the local
government board wanted certain buildings be closed down. Therefore, a hearing officer was
appointed. He went to the places, inspected the, heard the owners and residents, took evidence,
he prepared a report. Report was presented to the board. On that report, the board took the
decision that building should be closed down. Challenged. Went to House of lords. House of
Lords rejected the argument and held that administrative proceedings are such where the deciding
officer has to take help from the subordinate person. However, the authority must take apply his
independent mind. In India, G Nageshwar Rao v. AP State Road Transport Corporation,
1949: secretary prepared a scheme, the secretary invited objection, the secretary gave the hearing
and ultimately decision was taken by the CM. applying the Morgan case, the Court held that there
is a violation of PNJ because the person who decided did not hear. G Nageshwar Rao, 1953 ,
IInd Case: minister gave the hearing, secretary made the report, CM approved the report. Here
the court held that if the CM has taken a conscious decision while going through the whole file,
reading all the documents and evidence, then the requirements are met.
Sufficient reasons must be recorded by the deciding authority before taking the decision. This
would show that the authority has applied his mind.
 Right to a speaking order or reasoned decision/ right to reasons: administrative authority must
given clear and precise reasons for their reasons. They are the justifications for the decisions. They
provide a link between the facts and the conclusion. Benefits of giving reasons: 1. Reason make
the action objective rather than subjective; 2. If the reasons are given, then the accused person
feels that he is not a victim of any revenge but the decision is justified by the law; 3. They are
necessary for developing public confidence in the administrative process, 4. They are necessary
where there are provisions for appeal or judicial review. If the reasons are not given, appellant
authority cannot decide. 5. Reasons make the actions democratic. 6. They show the application of
mind to the case 7. Reasons create a good precedent. 8. Absence of the reason makes the decision
arbitrary and thus violates Article 14 of the Constitution. In india, reasons are mandated by Article
14 and 19 and restrictions on freedom requires reason. This requirement is also there under
Articles 32 and 226. Royappa case: if decision not given, the decision is arbitrary. Sunit Batra
case: when one is putting a person in solitary confinement, he shall have to provide reasons.
Reasons may be mandated statutes. E.g. Mine’s act lays down that if the mining lease is to be
 cancelled, then the person has to be given hearing and reasons thereof. Reasons may be mandated
by the PNJ. In what cases, the reasons become necessary:
o Where the action of administrative authority is quasi-judicial. Even when the action is
administrative, authority is not under a duty to act judicially, still the authority is under a duty to
act fairly and fairness demands that some reason must be given. E.g. if one is terminating a
probation of an employee on the basis of a charge, reasons must be given.
o Where any appeal or revision is provided.
o Where serious prejudice is being caused: there is a loss of livelihood, career, reputation, stigma
o Where are decisions are aberrant. They are not normal. They are out of the line. E.g. for a serious
negligence, small amount of compensation has been given or for a small negligence, high
compensation has been given.

In USA, the reasons are mandated by the due process clause and the Administrative process Act.
In England, they are mandated by tribunals and enquiry’s act. It is provided that reasons may be
given when demanded. In India, reasons are always given. Reasons on file and reasons community
[English law: it should always be in the file, but they communicate the reason only on demand].
Sometimes, giving of the reasons leads to more unfairness than fairness. In EU, the Human Rights
Convention says, when there is a violation of human rights, intelligible reasons must always be
given. In India, the reasons may be mandated by the Constitution. If the reasons are given,
adequacy and intelligibility of the reasons is a justiciable issue. Anybody who reads that particular
order must be able to understand that why the matter has been decided in the manner it has been
decided. Adequate means that they must be in a position to justify the decision. If the reasons are
given, they should not be rubber stamp reasons. They are those which do not show the application
of mind. E.g. under the Preventive Detention Act, 8 situations are there where a person can be
preventively detained. In one case, the government issued a preventive detention order and gave
those particular eight grounds serially. Court held that these are rubber stamp reasons as one has
not applied his mind as to out of eight, which would be applicable in the present case. Retro
reasons are not valid. Once a reason is given, once cannot add anything to them or change it.
Should the person in administrative process, who takes the final decision of accepting or rejecting
the report, should also give reasons? Yes, reasons must be given for its acceptance and rejection.
Exceptional circumstances where reasons may not be given:

o Where public policy requires it when it relates to security of the state;

o Where it would frustrate the system itself. Reasons may be on file, but they may not be given. E.g.
when immediate actions are to be taken.
o When no right is violated and no prejudice is caused.
 Whether the violation of PNJ makes the decision void or voidable? In Ridge v Baldwin, 1964, it
was held that if principles of natural justice are attracted in a hearing, the violation will make the
decision void and cannot be cured by any subsequent hearing in the hearing process. Whether the
hearing at the second stage can cure the decision? Held as no. if the PNJ are attracted at the initial
hearing and they are not given, the decision is void and it cannot be cured if the hearing is given
at the appellate level. However, Professor Wade says that decision may be void and voidable would
depend on the facts and circumstances of each case. He says that where there is an error within
jurisdiction and notice and hearing is not given, it can be cured at the appellate level. However,
when it is a matter is an error of jurisdiction, it cannot be cured at the later stages. If the decision
is given in violation of the principles of natural justice, the decision does not become illegal. If one
goes before the court of law, it may ask for a afresh hearing. In India, the decision in violation of
PNJ are not considered as void but voidable. Maneka Gandhi v Union of India, in that situation,
notice and hearing was not given before impounding the passport. The court said that the authority
is required to given post decisional hearing. It makes the non-application of the PNJ voidable. The
defect can be cured by a post decisional hearing. In England also, the trend is that the decision is
voidable, R v. Governor of St. Gregory’s RC aided High School, ex parte Roberts, 1995:
disciplinary action against a student, not given a proper hearing. Report before the principle. He
gave notice and an extensive hearing. Held: this has cured the defect. The decision are voidable.
Can PNJ be waived? If there is a violation of fundamental rights, due process requires a certain
level of fairness which cannot be waived. However, if it is not the case, then perhaps PNJ can be
waived. R v. Parole Board, 2005, House of Lords: Parole board decides on the parole of the
prisoners. Prisoner was given notice that he has a right to oral hearing so kindly appear before the
board. He refuses and does not appear. Therefore, in his absence the decision is taken. Can one
waive PNJ? held as yes provided that person has been specifically informed about his right. Waiver
cannot be taken by default. The refusal cannot be implied, it has to be specific refusal. If there is
an express waiver, the court do not interfere. If he person concerned had the proper
understanding, notice and resources, he would always appear for hearing: underlined principle. In
criminal trials, pNJ can never be waived. Even if the person admits to the crime, still one has to
attend the trial and prosecution has to prove the case beyond all reasonable doubts. PNJ can be
waived from procedural matters and not substantive matters.
 Should the report of the enquiry be shown? Under Article 311, there were two enquires to be
conducted when an action is taken against a government officer [during the draft constitution]:
first, during the course of decision wherein a hearing officer is hearing the case; once the report is
made, it is to be supplied to the government employee and he would have the right to make a
 representation to the ultimate authority. Later on, it was thought that it delays the matters and the
constitution was amended and the second hearing was dropped. As administrative proceedings
cannot be equated with judicial proceedings, the Courts said that the report should not be shown
unless the affected person shows any prejudice cause to him by not showing the report. Suresh
Koshi v. University of Kerala, 1969: a inquiry was conducted against a student for misconduct
by the disciplinary committee. Report prepared. Placed before VC, he approved. Punishment was
maintained. This was challenged as the report of the enquiry was not shown. The court held that
merely because the report has not been shown, it does not violate the principles of natural justice
unless prejudice is shown. Keshav Mills v. Union of India, 1973: it was a textile mill, was
suddenly in great difficulty. Danger of large scale unemployment. Inquiry. Inspector went.
Discussed. Mill was in financial difficulty and they were not able to get loans from bank. Report
prepared. Submitted to the government. Management of the mill was to be taken over by the
government. This decision was challenged on the ground that the report was not shown to us and
the ultimately the government decided. Held: showing of the report is no general rule, its not a
part of PNJ unless prejudice is shown. Here, no prejudice is causes as there was only one reason
for the difficulties, i.e. financial crisis. Managing Director, ECIL Hyderabad v. B Karunakar,
the question was that if the report is not shown to the government officer before final decision is
taken, would it be a violation of PNJ? SC held that there can not be automatic invalidation of the
state action unless prejudice can be shown. Report of the enquiry officer need not be shown as a
matter of routine.
 Right to a convenient forum. Where the enquiry is to be held against one person, it must be within
reasonable time and at a reasonable distance. In one case, the person had been suspended, enquiry
instituted, notice that appear before the committee within a certain time and to a certain place.
The time was not adequate.
 Situations in which PNJ can be avoided because application of PNJ can be avoided because the
PN would result in unfairness. Can there be exceptions to fairness? There cannot any exception
to fairness, however, there may be situations where application of PNJ may result in unfairness.
Therefore, in certain situations, PNJ can be excluded. Fairness is a virtue, it cannot be allowed to
be counter-productive.
o Useless formality theory: If the circumstances are such where no useful purpose will be served by
providing the PNJ and situation is such where even if providing notice and hearing will make any
difference in the situation. Where the person could not have offered any defence, where the result
would not have been different. In such situations, perhaps the application of the PNJ would lead
to wastage of time. If the situation is such, then application of the PNJ would be a useless formality.
The fairness cannot be made counter-productive. Argument against this theory is that to pre-judge
an issue that PNJ will make no difference, then it is a very slippery slope where lies the way to
dictatorship. If the circumstances and fact situations are such, where the person has not suffered
any prejudice or harm, and the facts speak for themselves, then in such cases, one can apply this
theory. Every case has to be decided on its own merit. In Ridge v. Baldwin, the court rejected
this argument, and held that one cannot pre-judge an issue. e.g. Board of High School v. Chitra
Srivastava, 70% attendance rule. calculated, 10% short and not allowed to sit for exams. Notice
and hearing was deemed useless in this case. In this case, the persons were provisionally allowed
to take exams. Exams cancelled for those whose attendance was found short. Justice Sikri [to some
mind, PNJ is burdensome. Administrative decisions are delayed because of notice and hearing.
But, this is a price which has to be paid if we desire that the society by the rule of law]. Aligarh
Muslim University v. Mansoor Ali Khan, 2000: there is a university bye-law that any person
who is absent from duty in an unauthorized manner without permission for than a particular
period, there services would be terminated. Mansoor Ali Khan was absent for 5 years continuously
without any information to the University and his services were terminated. He pleaded that notice
and hearing was not given. Held: in this situation, notice and hearing would have become a use
less formality where the things speak for themselves. State of Karnataka v. Mangalore
University, Non-teaching Employee Association, 2002: under an interpretation of a
University rule, employees were given certain allowance. When the case went to the executive
council of the University, it held that such interpretation is wrong and the employees are not
entitled to such allowance. Allowance withdrawn. Argued that no notice and hearing without
taking away the benefit. Held: the amount is certain, law itself bars such allowance and thus, no
requirement of PNJ. Ashok Kumar v. UoI, 2009: In a selection committee by an oversight a
person was selected who did not possess the minimum qualifications. Thereafter, when it was
detected, his services were terminated. Challenged on the ground that no notice and hearing given.
Held: you knew that you are not qualified, you yourself filled the form, now as by oversight you
are in the selected list, what prejudice is caused to you? Now the courts are moving towards ‘no
prejudice’ rule. State of Karnataka v. Kuttappa, 2005: a daily wager, repeated misconduct, always
accepted the misconduct and the punishment, again repeated, services terminated. Challenged
before the court. Held that PNJ would be a useless formality under these circumstances. Dharam
pal satya pal v. CCE, 2015: under the finance Act, government issued certain notice in which
some tax benefits were given to some persons. Later on, this notification was challenged before
the court of law and it was declared invalid. Government gave a recovery notice. Challenged for
violation of PNJ as they were not heard. Cillamond v. British Airport Authority, 1998, Lord
 Denning: the airport authority had given a taxi driver a permit to enter the airport area. A report
was made to the airport authority that he misbehaved with certain passengers. On that basis, his
permission was revoked and it was laid down it the Order that he cannot enter into Airport
authority premises except as a bona fide passenger. This was challenged. The airport authority is
taking the plea of useless formality. He has suffered a prejudice as he has lost his job. Justice
Denning, however, held it as useless formality as it is a purely administrative function.
o Exclusion in case of emergency: if there is an emergent action, action can be taken without any
PNJ. Maneka Gandhi v. UoI: impounding can be done in emergency but post-decisional hearing
has to be given.
o Where there is a process danger. Malak Singh v. State of Punjab, 1981: the police station
maintains a confidential register for surveillance. Police maintains a watch over their movements.
Malak Singh’s name was entered into the name of the register without notice and hearing. Held: it
would defeat the purpose of the administrative action would be defeated.
o Where the matter is purely administrative: no right has been violated. E.g. selection committee has
rejected you. Held: it is purely an administrative action. Still, the action cannot be arbitrary.
o On the basis of impracticability: R Radhakrishan v. Osmania university, 1974: whole entrance
test examination for MBA was cancelled for mass copying. Challenged on the grounds that no
notice and hearing was given. Held that you have not suffered any stigma and it is impracticable
to given notice and hearing to everyone.
o Where the action is interim and preventive: charge against a person. Inquiry committee, during
this, he has been put under suspension. No notice and hearing. Held as a mere interim action and
therefore, PNJ not required.
o Where administrative action is a rule making action: PNJ are not attracted to legislative area. Where
the law is to be made on certain facts to be decided, then in that case PNJ are attracted.
o Where no right of any person is violated: applied for a post, not selected, no notice before rejection,
as such person has no right to get the post, PNJ are not attracted. E.g. after the contract is over,
his services are dispensed with, no notice and hearing is required. However, if a person has suffered
a prejudice, then notice and hearing is required. If a person has suffered some prejudice, because
of his legitimate expectations, in such cases, PNJ are attracted.

Liability of the government in contracts:

Contract and the freedom of contract symbolizes the grown of civilization. The growth of the
societies has been from status to contract. There was a time that the people were governed by
status and the in the modern age of civilization, the people are governed by contract. Contract also
enables and empowers people. That’s why the freedom of contract is given in the American
 constitution. It is only through contracts that government pursues its agenda. E.g. it may go for
PPP for industrialization. The importance of contract has much increased in free market economy.
In India, government can enter into contract in two capacities:

 Under a statute [statute authorizes the government to enter into certain contracts]
 In exercise of its exercise of its executive power [inherent power of the executive].

In India, there is no special law government public contracts. However, Article 294, 299, 298, 300
deal with the liability of the government in contracts and torts. Therefore, we are partly governed
by the constitutional provisions and partly we are governed by the Indian Contract Act. Formation
of the contract, contract act shall apply. For compensation, some provisions apply some do not.

In England and in America, the public contracts are governed by private law contracts. There is
no special law governing public contracts. In France, there is a special and developed contract law
relating to public contracts.

Pre-constitutional position:

East India company was a trading company and therefore, it never enjoyed any exemption in the
contracts entered into with private individual. Bank of Bengal v. United Company, co had taken
a loan for certain war preparations. When it was not given back, case was filed against the company.
It said that we are a public authority and thus we are not responsible for the contractual obligations
like an ordinary person. Held: No, co is a trading company and therefore, is responsible in the
same manner as a private individual is. 1833: company had been recognized as the representative
of the crown for those territories which have been won by war. Now the company had dual
character. Now a case comes up. Noben chandra dev v secretary of state: a ganja license was
auctioned by the company. Highest bidder deposited the earnest money and the contract is
complete. But the east India company refused to issue the license. Case filed. Now the court says
that as a representative of the crown, the co. has a sovereign function [is that function which can
be carried on only by the company and not by any other person]. Therefore, ganja license can be
auctioned only the company and not by any private individual. If it is a sovereign function, specific
performance of the contract cannot be allowed against the east india company. East India co. shall
not be bound by the contract in the same manner as a private individual.

However, liability of the government was statutorily recognized under the Act of 1833, 1858, 1919
and 1935. From there, the constitutional provision 298 and 299. Article 298 gives power to the
contract to enter into contract with the private individual in exercise of its executive power. 299
lays down the essentials of a government contract.
 Essentials of a valid government contract:

 It must be in writing. Private contract can be oral also but public contracts cannot be oral. There
is not fixed norm unless rules and regulations provide for it. Union of India v. Raliya Ram,
1963: the director of purchases for defence issued a tender for the purchase of cigarettes for the
army. Tender accepted. However, no formal contract was entered. Lot of correspondence took
place and in those correspondence, they laid down various conditions of the contract. After things
were supplies, question came about the validity of the contract. Court said that the word writing
should not be interpreted in a literal manner. Writing means that if we keep all the correspondence
side by it, we can ascertain the terms of the contract. Therefore, the requirement of writing is met.
Writing does not mean any particular form unless provided by rules and regulations. If by any
document and documents, essential terms could be found out, then the requirement of writing is
met.
 The contract must be expressed in the name of the President or the governor, as the case may it.
This is necessary to save the government from unauthorized contracts. No other person can make
a contract on behalf of the government in his own name or on his own office. Chharterbhuj v.
Maheshwar, 1954: the contract had been signed by the authorized person. But the contract had
not been expressed in the name of the President of the Governor. Court held that the contract is
void. It must always be expressed in the name of the president or governor. Karamshi v. State
of Bombay, 1964: an agreement was singed between the minister and a private party for the supply
of irrigation water from the canal. But it was not expressed in the name of the governor. Therefore,
government did not supply the water. Suit filed for specific performance. Court held that contract
is void.
 The contract must be executed on behalf of the president or the governor: Davigo’s government
factory v. Rajasthan, 1970: the IG of police authorized to sign issued tender for the supply of
uniform to the police personnel. He signed in the name of IG but was not expressed on behalf of
the governor. When it came to the payment, government refused. Court says that this is a situation
where the execution on behalf of the governor or president can be implied also. If the words that
it was signed on behalf of the governor is not mentioned, it would not make any difference.

Take notes for 04/10 and 09/10 and 10/10- Ask Anmol Jain [MISSING]

SPECIAL PRIVILEGES OF THE GOVT. AS A LITIGANT

if a case is to be filed against the govt.- what are the special privileges of the govt. as a
litigant which are not available to an individual- it is on the ground of public interest. How
to enter into a compromise- what is to be done? - Executive privileges.

1. Doctrine of notice- section 80 CPC- if a civil case is to be filed against a govt. a

notice of 2 months is to be given. After this period, one can file the case. The rationale is
to give the govt. the time to either fight the case or compromise and collect docs.
However it is not applicable on accidental claims tribunals and statutory Organisations.
Notice should be in writing and should contain the identity of the petitioner and the
respondent. Also info. On the cause of action and then the relief that is to be claimed
against the govt.
If the govt. servants have done something w/o jurisdiction- then the notice is not required.
Otherwise notice period is mandatory and the court may not entertain the case, if no notice
period.
However, a problem is created when one needs immediate relief against the govt. and
there is a necessity of this period
State of Orissa v. Madan Gopal
A person was holding property from the govt. as a licensee and the govt. issued a notice
to him that within 15 days the property is to be handed over to the govt. (w/o any of his
markings- including markings) or the govt. will take possession forcefully. The SC said
that notice is mandatory and recommended that necessary amendments be made to this
section (80). Amended in 1976. The amendment laid that court may waive the requirement
of notice where relief is urgent and immediate.

In reality the two months notice is a mere formality and not a necessity.

Saler bar association case (2005)

In govt. there must be appointment of a very responsible official and he must file them and he
must take the decision whether the case is to be pursued or not.

2. Immunity from the operation of a statute

England- During monarchial days- king is not bound by his own law. He can do no wrong. After
this era, the democracy is restored and parliament is supreme. Then to what extend, the law binding
the people, should also bind the govt.- if the law passed by the parliament shall not bind the state
or the executive unless it is made applicable to the state or the executive either expressly or by
necessary implication. This hasn’t changed after the passing of crown procedure act, 1947.
Eg- Road traffic act, 1960- passed by parliament- expressly lays that this law shall also be applicable
to the vehicles owned and operated by the state- there is expressive laydown. Sometimes the
parliament may lay that a certain law may apply to a govt. partially. Eg- equal pay for equal work,
1970- applied to everybody including govt. servants but may not apply to armed forces. Thirdly,
where the law passed applied to everyone but not the govt.- Eg- town and country planning act-
1970- applied to everyone by not the govt.
If the general statute is silent and there is certain benefit of that statute, then the govt. may take
that benefit- Eg. Statute of limitation applies to everyone- govt. not specifically mentioned- but
the govt. can make use of this.
Province of Bombay v. Municipal Corporation of Bombay (PC) (1947)
Municipal corporation act authorized the Bombay corp. that they can lay down the pipelines within
and outside Bombay. If there is a govt. land does the corp. have power to lay down the pipelines
over that also- the corp. wanted to lay the pipelines over the land which belonged to the govt- the
court held that govt. is not bound by the law unless the law is made available to the govt. you
cannot lay down pipelines on govt. land and only on pvt. Land- because the law doesn’t mention.
Director of Rationing and distribution v. Corporation of Calcutta (1960)
In india at this time there was shortage of food and therefore the ration was available to the people
through the govt. shops only- pvt. Trade in food grains wasn’t allowed and so it was a central govt.
project- dept. of rationing- govt. had stores all over India- Corp. of Calcutta has a by-law that says
that anybody who maintains a godown of food grains- must take a license from the municipal
corp. and its violation shall expose a person to Cr. liability- director of rationing, GOI also had a
godown and they didn’t take the license- they were prosecuted- govt. is not bound by its own law
unless made applicable to it expressly. The court held that the govt. is not bound by any law unless
expressly mentioned.
Legal remembrance case overruled the rationing case The SC held that if public interest is
involved govt. can be prosecuted under its own law unless it is expressly mentioned or by necessary
implication. Therefore, if there is any law that if there is any person who is tilling the land of
someone else and he has already deposited the amount, he gets the title over that land for that
period. It is the same for govt. property too.
3. Withholding information from the court- if a case if filed against the govt.- in order to
prove the case, the court asks the govt. to submit a document- does the govt. have the privilege to
withhold the document- yes it can provided it proves that it is confidential.
Who is the owner of public information is an important question- the govt. or the people- during
monarchy, it was settled that monarch was the one to decide. In democracy, we say people are the
owner of the info. And the govt. is the custodian, and the law is to decide what info. To withhold
and what info to give.
RTI is a fundamental right and therefore only reasonable restriction can be imposed and cannot
be completely debarred. The justification for this withholding is that public interest is to be kept
into account. If the govt. changes, the disclosure of that info. To the court will do more harm to
the people than benefit, and then they can withhold the information.
Candor justification- truthful and straightforward discussion- if one compels the govt. to disclose
all the information to the court then free and fair discussion in the govt. would be jeopardized.
This will inhabit the free and frank discussion. It will also inhabit information itself. No whistle
blower will come forward. It will inhabit the system itself. For example- the whole system, not
only here but other places also works on informants, if they are given pressure to give the name
of these informants, there will be no informants. This same reason protects the secret services as
well.
Britain also has official secrets act that provides that if a doc. Is marked as secret it cannot come
in public space. If it is leaked, the person to provide this info, will be criminally prosecuted. Crown
proceedings act 1857- the power to withhold info or document should not violate rule of law. The
production of the document can be reduced only if it is injurious to the public interest.
Duncan v. Cammell laired & Co. (1942)
Duncan doctrine (Class privilege will be allowed and the decision of the govt. shall be final
and conclusive)Even when the crown proceeding act was not in place- however British navy
made a submarine and it was to be put on test drive and journalists and important persons were
invited to go in that submarine in the first voyage and the submarine sank. The widow of one
person filed suit against the govt. on the ground of negligence in construction of the submarine.
The petitioner asked the court to reproduce the blueprint of the design of the submarine- the govt.
said they couldn’t produce the doc. Because it might jeopardies national interest because it
was the time of second world war. The petitioner wanted to prove that there was some design
defect in this submarine. This case laid some fundamental principles:
1. Court will allow class privilege- if doc. Relates to defense- privilege; proceedings of cabinet-
privilege; Foreign affairs- content isn’t material- privilege.
2. If the state takes the plea that disclosure will lead to violation of PI, that decision will be
final.
3. The Power to decide rests with the govt.
Conway v. Rimmer (1968)
Rimmer doctrine- Duncan doctrine was overruled- police officer was charged with theft-
cr. case was filed- he was acquitted- after his acquittal, he filed a case against the govt. for
malicious prosecution and claimed compensation- to prove Malicious intent- he asked the
court to compel the govt. to produce his confidential report- the govt. took the plea that it
is a privileged do. And disclosures will jeopardies public interest. House of lords laid that:
A. Class privilege will not be allowed, content privilege may be allowed.
B. When the govt. claims privilege, their decision shall not be final, the court will decide.
C. The court shall have the power to even inspect that document in chamber, if it might
jeopardies public interest.

Rowe v. Davis

Decision given u/d human rights act, 1998- the govt. decision shall not be conclusive and the
court shall have to take the decision in the interest of fair trial. Trial wouldn’t be fair w/o this-
then the govt. has to produce.

In the present case, there was a secret agreement b/w police and witness, in this, the witness
decided to give evidence in the court in exchange of compensation- and this info. Wasn’t on
record- this should have been brought on record (the court said). Now Rimmer doctrine exists in
England.

Air Canada v. secretary of state for trade (1983)

In Admn. Law the most important thing is context- law isn’t applied uniformly- PNJ don’t gave
uniform application but contextual application- the cabinet decided to expand London Airport
because it was very congested- the govt. gave this responsibility to British Airways- they also
decided that they manage their own finances- the airlines to make provisions for this raised lending
fee for the companies who subscribed their planes- this was challenged by 18 companies- they
wanted the govt. to present the minutes of this meeting to show arbitrary decisions on the part of
the airlines- the govt. took the plea that cabinet papers are confidential. The court held that cabinet
papers have a kind of secrecy and therefore, the court didn’t force the govt. to present these papers
because it wasn’t in interest of Public Interest.

Whether the govt. can withhold information from the Public- Right to withhold information
Act, 2000- in this act, it is said that the right of the accused person- is not absolute and therefore,
under certain circumstances the information can be withheld.
1. Where the information is personal or confidential;
2. Where the information relates to any investigation;
3. Policy documents may not be given.
4. Where it will inhabit condemn of public affairs. Where the public interest is largely
jeopardized.
5. Inhabit free and frank deliberations.
(England- claim of the govt. isn’t conclusive, the court can compel the document and
decide whether the privilege is allowed or no; and the court can inspect the document to
decide whether the document is in Public interest or not- so the ultimate test is Public
interest)
USA
The people hate secrecy- they believe in public transparency- the top fundamental rights are right
to free speech and expression and life and dignity (preferred rights)
However, the things are very contextual.
Reynold v. US (1952)
A military plane manufactured in USA- on its first flight with many people on it crashed and dies-
the govt. instituted an enquiry into this- suit for compensation was filed on behalf of people who
filed- they wanted to prove negligence on the part of pilot because of which the plane crashed- the
plaintiff asked the court to produce the report of the investigation the govt. conducted after the
crash- the govt. took the plea of not producing the document that it relates to investigation and if
it is released it will jeopardies the security of the state and therefore the court allowed the privilege
and the case was dismissed.
This was followed by a lot of criticism that how can such inquiry affect security of the state- the
court said it won’t interfere in the defense matter.
The court was wrong as the govt. itself published it in 2000.
New York Times v. US
Vietnam War- fought by US for 25 years w/o sanction from congress- the govt. instituted a high
powered committee to lay down the policy of VW- the report was presented- the prosecution of
VW was challenged in the court that the war is illegal and it hasn’t been declared by congress and
in order to prove this, they wanted the govt. to product the report the govt. developed w.r.t its
policy in Vietnam.
This report was leaked already and NYT had this report. NYT wanted to publish this report. Govt.
filed a suit for injunction that they cannot publish that report will jeopardies the security of the
state. The court refused the injunction, and the report was published because it included important
facets of fundamental rights and the courts always take wider views and don’t allow secrecy in this
matter.
Nikson Tapes Case
Water gate scandal- Under the orders of President Nikson, the quarters of democrat party was
bugged to listen as to what they were talking about. After this came to light, a case was filed. The
request was made to produce the tapes w.r.t water gates, and the same was required to prove the
case. Nikson said they cannot govt this, because of executive privilege. The court refused to accept
and the court compelled the production of states. The court held that the privilege asked for by
the govt. isn’t conclusive and it depends on the court to decide whether it will be given or no. No
class privilege to be given.
General dynamic Corp. v. US
Boeing Co. v. US (2010)
Govt. entered into a contract with the plaintiff for manufacturing certain airplanes- the agreement
consideration was $1 billion and technology was given to the Co. to produce 16 airplanes. The
time period given was violated and hence the govt. filed a suit for violation of the contract- they
took the plea that delay is not because of company but the govt. for late delivery of technology
and they filed a counter-suit claiming damages for violation of contract- for this purpose they
wanted docs. Which were in the possession of the govt. related to new technology- the govt. said
they couldn’t be shown as it violates Public interest. The court allowed the plea of the govt.
Khalid-Al-Masari V. US
Khalid was a German national arrested in Macedonia on the suspicion that he is a terrorist and he
was handed over to CIA who took him to Afghanistan and tortured hm. Ultimately he was released
on the grounds of him not being a terrorist. He filed a case against the govt. claiming damages for
wrongful detention and torture- they wanted CIA to produce certain docs. Related to his arrest
and detention- the govt. said they are privileged documents as this will jeopardies the public safety.
The court upheld the decision of the govt. and didn’t allow production.
India
India RTI from govt- is a statutory right and also a FR u/A 19 and 21.
Can any info. Be asked from the govt. by exercising this right?
No. It is a limited right.
1. When the info. Can jeopardies the sovereignty, integrity and safety of the state; when
jeopardies law and order; info. Relating to investigation and detention of an offence; personal and
private info. Of persons; cabinet papers.
2. There is only content privilege and no class privilege- it is only for factum of advice and
not actual advice and all other docs. On the basis of other docs. Which you have given this advice-
they aren’t safe (Rameshwar Prasad v. UOI 2006)- president rule in Bihar suggested by cabinet-
based on the report of the governor.
This report was to be presented in the court- the governor took the plea that this is privileged- the
court said only the advice is privileged, not the documents leading to that advice.
Article 74(2)- talks of class privilege- the minutes of the cabinet and all the cabinet papers are
privileged- only the factum is privileged not the basis of that factum.
The evidence act- statutory privilege w.r.t. Oral evidence- S. 123- no public officer shall be
permitted to give any evidence from information, if he has any in the cases:
1. If it is acquired from unpublished public record.
2. Related to the affairs of the state.
3. Where it will jeopardies the public interest.
Section 124- no public officer shall be compelled to give evidence on anything:

1. Which has been given to him in confidence;

2. If he thinks that public interest would be jeopardized.
Section 162- if the court wants the govt. to produce certain documents, then that person must
come to the court with the particular document in a sealed cover. There the objection must be
taken that it relates to the affairs of the state and would jeopardies the public interest. Then the
court will decide whether to use it or not, based on:

A. Collateral interest;
B. Court can look at the document in chamber and then decide about its presentation.
State of Punjab v. Sodhi Sukhdev Singh (1961)

A district judge was guilty of misconduct- an enquiry instituted by HC and based on this it was
decided that he should be suspended- b/f suspension, opinion of Public services commission was
seeked and then it was decided that his services should be terminated.

He challenged this, and he wanted to prove this by asking the SC to compel the govt. to produce
2 documents:

1. Recommendation of Public services committee.

2. Minutes of the cabinet meeting.
The court took the plea of privilege document- the court trusted the govt. and didn’t force the
govt. to present the documents.
Indira Nehru Gandhi v. Raj Narain
Indira Gandhi’s election was challenged on the ground that this is an illegal electoral practice that
she has gone there as a private individual and every arrangement was made by the govt. at their
expense- to prove this the respondent wanted the court to compel the govt. to produce the
bluebooks of the police- the govt. took the privilege plea- on the ground that it will destroy public
interest- the court said production is important.
Anil Yadav v. State of Bihar (1981- Bhagalpur Branding case)
In order to solve law and order situation in the area- the police punctured the eyes and blinded all
the mischievous people in the area- the govt. instituted a CID inquiry and a case was filed as
violation of HR.
They wanted the production of CID report- the govt. took the plea that its confidential and it will
violate public interest- court ruled that production wont do this.
SP gupta v. UOI (Judges regularization and transfer case) (1981)
T/f of judges and non-confirmation of addll. Judges in the DHC- in order to prove the transfer
was not valid, the correspondence b/w Chief justice and the CM would be needed- the court said
bring the document and inspected those documents in camera and cam to the conclusion that they
are not privileged.
The final law is that it is an area where public justice and private justice may collide with each other
and therefore the court plays a balancing act, here 2-3 propositions are valid:
1. In India, class privileges are not allowed.
2. Only public interest privilege will be allowed.
3. When the govt. claims privilege, it is not final and the court will decide on the basis of
collateral evidences and here the court can even inspect the document in camera. The courts have
also decided that in case of class privilege, relating to the cabinet papers is also not final, only the
factum is final, but all other docs. On the basis of which the decision is taken to advice the govt.
isn’t privileged.
Slowly the courts are moving from secrecy to openness.

Commission of Enquiry act, 1962- govt. can institute any public inquiry against any public matter-
the report must be presented before the parliament and made public- 1986- amendment- not it
was laid down that govt. may exercise discretion to place the report on the table in the parliament.

E.G- Natrajan Report till date hasn’t been brought before the court.

16/10

RK Jain v. UOI
The govt. appointed the president of the central excise gold appellate tribunal (important position)-
the appointment was challenged and in order to prove the plaintiff wanted that the court should
order the govt. to present on record certain documents relating to the appointment and the cabinet
paper- the court didn’t order the production because the govt. said that the cabinet papers are
privileged and disclosure may violate the govt. secrecy- the court went for in camera examination
and held that the docs. Are privileged.

State of Bihar v. Kripali Shankar (1987)

Certain docs. Were required to prove the case- the court asked the govt. to produce the document-
in the files that were produced, there were comments by govt. officers and they were related to
the conduct of Judges. The comments were such that they constituted the contempt of court- now
this person wanted to file a contempt case against those persons- the court said that if the
document has been complied, it cannot be used for any collateral purposes and therefore, on that
particular basis, no contempt proceedings can be filed.

There is an implied prohibition.

Conclusion- 1. That in India, class privilege shall not be allowed.

2.The claim of the govt. that doc. Will jeopardies the PI shall not be conclusive and the court shall
decide on PI.

3. The court can inspect the doc. In camera and can obtain collateral evidences.

PRIVILEGE TO WITH HOLD DOCUMENTS IN CR. PROCEEDINGS

Matrix Churchill Case- 1990- Vietnam war was going on the govt. imposed a ban on the
companies that they cannot sell to Iraq any war material which can be used in prosecution of the
war- the violation of this law shall entail Cr. prosecution- A co. was prosecuted on the ground that
it was selling to Iraq materials which could be double used- may/may not be used in war- Co.
contention is that the act done was in the notice of the govt. and the govt. encouraged us- to prove
this the company wanted the court to compel the govt. certain docs. Which were the
correspondence b/w the co. and govt. and the minutes of the meeting- the govt. took the privilege
plea- the court said that fair trial is the Suprema Lex of PI. The court compelled for the
correspondence b/w minister and co., however w.r.t to correspondence b/w ministers and the
cabinet, the court examined the docs. in camera and held that they shouldn’t be brought on record.
 OTHER PRIVILEGES

Rule 5B, Order 27, CPC- this provides and castes a duty on the court, that if in any civil case if the
govt. is involved, it shall be the duty of the court to assist in arriving at a settlement. But if there
are cases b/w individuals, no resp. of the govt.

Rule 8A, order 27, CPC- court cannot demand security from the state.

Oder 27, CPC- in any case, if any substantial question of law arises, it is the duty of the court to
give notice to attorney general (Central govt. is involved) or advocate general.

Section 82, CPC

Section 80 CPC- Notice.

SUBJECTIVELY WORDED ADMINISTRATIVE POWERS

- Undefined powers of the administration.

- Rule free powers of the administration.

- Administrative discretionary power- these are in such high visibility area, they work over because
the abuse of discretionary power is the sole reason for corruption, maladministration and lack of
development of the country.

- Discretionary powers are the most misused power, and their misuse push a country to a failed
state.

- What is this power?

dictionary meaning is the freedom to act at one’s own pleasure. So if such power is delegated to
someone to exercise his discretion, this is a case.

Eg. Police’s discretion to take action to disperse illegal assembly.

Admn. Powers are either duty (only one course and no options) or discretion (multiple options are
available)

In Admn. sense, discretion means choosing from various available alternatives, but w/o any
reference to any pre-laid down standard.

Options are available and which option you will use, there is no pre- laid down standard and misuse
of discretion is considered to be the sole reason of corruption.

The equation of corruption is M (monopoly)+D-A = C.

Therefore, in admn. law can discretion be controlled?- no, this is the necessary evil.

Characteristics of discretion:

1. It is rule free area.

2. No rule can be laid down in advance for controlling the choices available to a govt. servant.
In cases where the facts or situations where discretion is to ne exercised, is also left to one’s
discretion.
Discretion is subjective and not objective.
3. It can be objectively controllable- if there is discretion- can its exercise be controlled?
Yes, the courts have developed various judiciary manageable standards by exercise of which such
discretion can be controlled.
4. Discretion cannot be fully eliminated- one cannot eliminate admn. Discretion completely,
one has to give some discretion to the authority- no matter how limited it is. This is because some
play in the joint is always necessary.
17/10

Why is discretion necessary?

The advantages of discretion:

1. Discretion is a by- product of an intensive form of government- it is not possible to lay

down every form of law for every situation and therefore, discretion is to be given. It is a necessary
evil. No govt. can function w/o giving necessary discretion to the admn. Authorities.
2. Law cannot provide for every eventuality- it can provide for certain situations, however,
not for all, therefore, some discretion is necessary to deal with these eventualities.
3. Discretion is necessary for individualization of justice [not uniform application but
respecting that not any two people are alike.]
4. Where experimentation is required along with flexibility- then discretion is absolutely
required.
5. Where the matter is highly specialized and technical and one has to depend on the expertise
of individuals, then admn. Discretion is the only answer.
Disadvantages:

1. Action on subjective satisfaction may lead to abuse of power.

2. Wide discretion violates rule of law and reduces rule of law to rule of man.
 3. They violate one’s fundamental rights- only reasonable restriction can be imposed on FR-
but if we allow admn. Authority to take actions- we are allowing them to take away the FR- the
antithesis of FR.
The main problem is the question of balance b/w discretion and rule of law. Therefore, the
judiciary tries hard to maintain this balance.

How the discretion is conferred?

The drafters of law use various expressions to confer discretion- like usage of words like discretion,
appropriate, fit and proper, in your opinion, proper and expedient, advisable, in every case some
discretion is always involved.

Some joint in the play is always there so that proper action can be taken in proper moment.

Types of discretion:

1. Express discretion- the law clearly lays down the discretion to be exercised by the admn. Officer.
Eg- district magistrate may grant and revoke a liquor license at his discretion.
2. Implied discretion- law doesn’t use the word discretion, but may use various other expressions-.
3. Inherent discretion- admn. authority has been given certain power in order to fully discharge these
powers, there are certain decisions which are inherent. They are implied into the power.
4. Resultant discretion- if there is any merger which affects the major part of India, there is a resultant
discretion that they can decide.
Position of Discretion in UK-

Two factors in this case are important- A. unwritten constitution and B. Supremacy of the
Parliament. The courts have developed a doctrine of reasonableness, to accommodate discretion
with these two. The doctrine says that no matter how wide is the discretion of the parliament,
there is an implied condition that the power is to be exercised in a reasonable manner. Therefore,
even in the case of Parliament’s power, the courts have developed principles of reasonableness
and on this basis they regulate discretion as well.

Padfield v. minister of agriculture

Marketing act- wherein- the parliament has constituted a marketing board which has been given
the power to regulate the prices of agriculture commodities. The complaint can be made to the
minister who while exercising his discretion may forward the same to the complaint authority.

The producers who bring milk from the outside say the price is not fixed correctly as their
transportation charges haven’t been considered and therefore, they must be allowed to sell at a
different price. The minister said that he wont forward this to the complaint committee as it will
politically put him in a wrong position. The house of lord is presented with the argument that
minister acted in accordance with parliament is supreme and the house said that the minister if
awarded with discretion is to exercise it in a reasonable manner.

R. v metropolitian police commissioner (ex parte- black bird)

A police act gives the police the power to keep a watch on law and order situation. Can the police
say that we cannot keep a watch on bad character people- no, court said that power is to be
exercised in a reasonable manner.

18/10

Discretion in US-

There is a written constitution based on separation of power, i.e., very limited power can be
delegate to admn. Authority. If wide power is delegated to exercise discretion that would be
arbitrary discretion over FR, they have JR and the due process clause. In lieu of this, they have the
admn. procedure act which lays down that the court can exercise control over admn. discretion if
it hasn’t been exercised reasonably, fairly and for the purpose it has been given.

Position in India:

Here we have a written constitution, we have power of JR, FR, due process clause and therefore,
judge proof discretion is not possible in India {any amount of discretion which is not subject to
JR is not possible}

So long we have A. 32 and 226 in the constitution and JR is the basic feature of the Indian const.
and therefore, even if the const. may say that the decision of the admn. authority in exercise of
discretion shall be final, it will still be subject to JR.

EG- Article 217 lays that if there is a dispute wrt the age of the HC judge, the matter will be
decided by the president and that decision would be final for the president and not the court. The
court can still exercise jurisdiction.

If the const. gives an admn. authority the sole power to decide on a matter even then there is JR.
eg- if the Prez. Wants a Prez. Rule in a state which he can exercise with discretion but this is also
subject to JR.

So there is no Judge proof decision.

 Whenever, admn. decision is challenged, the court will not go into the factum of decision but it
will always go in the process of decision. The court will not ask one why one has taken a decision,
it will only ask the ‘how’ behind that decision.

Eg- if the university has power that it can give a scholarship to any law student by exercising its
discretion.

The question is on what ground can admn. Discretion can be challenged in a court of law?

The court controls admn. Discretion at two levels:

1. Delegation of discretionary power.

If there is a violation of A. 14, 19, 21 (FR) then there the court can interfere at the delegation stage.
If there is delegation then one has to lay down the policy of the law and the guidelines, then
discretion is to be given to the admn. Authority. Secondly, delegation shouldn’t violate the written
provisions of the constitution. If the legislature has laid down a policy or a guideline, it shall be
considered as a valid decision.
RR Verma v. UOI (1980)
There is an all India services act 1981 which regulates the services of IS officers. Here the power
was given to the govt. to make rules and regulations, so the govt. made a rule u/d this law and that
is All India services condition of service residuary matter rules, 1960- A discretion is given to the
govt. u/d this- if the govt. is satisfied that any rule regulating all India services is causing undue
hardship then the govt. may relax the operation of that particular rule in a manner it considers
necessary and proper to decide a matter in just and equitable manner.
This was challenged on the ground that delegation of discretion is unconstitutional that the
legislature hasn’t laid any policy or guideline u/d which this discretion is exercised- the court said
that policy and discretion is underlined by two words- hardship- shows the situation where
discretion will be exercised; and in just an equitable way.
Delhi Admn. v. VC Shukla
Parliament passed special courts act, 1979- here, it was said that Parliament can refer a case to
these courts. The challenge was that there is excessive delegation because nowhere policy and
guidelines have been laid down.
Court said no, they are there in the act. The act says that if there is prima facie case of violating of
law by some high politician, then they fly in.
2. At the level when the admn. Authority exercises discretion.
The courts have developed during the course of time, may judiciary manageable standards and
with their application court controls the exercise of discretion.
 It will be exercised when there will be no exercise of discretion or refusal to exercise discretion.

Courts have laid that when power is given to someone, it is not his personal power but
people’s power entrusted upon him, and he is to exercise it in their interest.

Hridaya Narayan v. ITO

Section 35 of IT act, if there is any mistake in assessment order of the IT, then the IT officer can
either suo moto or on application of the person can ratify this mistake. Court said that the power
given is entrusted for the public purpose and the person cannot refuse from exercising this power.
He cannot refuse to look into the matter.

If a person exercises discretion w/o delegation-

This is not a valid delegation as there is no power to delegate.

Sahani Mills v. ESI (1994)

Under this act the industry a member of ESI they have to deposit monthly contribution towards
the insurance- if an industry fails to do so, the director general of the corp. shall have the power
that hit may recover the amount of contribution and also the damages.

The director general made a rule and t/f this power to deputy general manager. The court held
that delegation of discretionary power to any other authority w/o authorization of law is not valid.
However, the person to whom discretion is given in exercise of this discretion may take help from
his subordinates. This is allowed but total delegation isn’t allowed.

Where the Admn. Authority has wrongly assumed jurisdiction in exercise of jurisdiction
by wrongly deciding the jurisdiction

The officer has been given discretionary power and he has to exercise after ascertaining certain
facts and if those facts have a wrongly decided jurisdiction then the discretion wouldn’t be valid
and quashed by the court. Collector has a power that if there is a shop which is lying vacant for
the last three years then he can allot that to any other person in exercise of his discretion, but,
before this he has to ascertain two things:

A. That it is a shop.
B. That it is lying vacant from past 3 years.
These are Jurisdictional facts. If a collector has wrongly decided facts and assumed jurisdiction and
exercised discretion, then the court can quash the decision if there was wrong jurisdiction.

Where the jurisdiction has been exercised on facts which were never existing on record
The discretion has been exercised w/o any evidence

M.A. Rashid v. state of Kerala 1974

The govt had the power that if they think that mechanical industries which are using quire in excess
because of which the cottage industry is suffering. They are using more of the limitedly available
quire. Then in this case, they may impose restriction on consumption of quire by the mechanized
industry. So they imposed the restriction which was challenged. The court said that show us the
evidence and what statistics lead to this decision?

The govt. says we have no data. So the court said that why did the govt. exercise discretion w/o
evidence and the court said that it will interfere in such cases.

R.D. Shetty v. Int’l airport authority

(Take notes from Pragya for today) [MISSING]

20/10 (take notes from Tinny) [MISSING]

22/10

The twelfth ground is that no ground can be unreasonable- which is decided by the bandsberry’s
principle.

Now the doctrine of proportionality will decide whether the action is reasonable or not and in
other areas it is the berry’s principle.

The thirteenth ground is that exercise of discretion must not be under any dictation- this means
that law gives one discretion because law considers one competent enough to exercise discretion,
but if this discretion is exercised at the behest of some other party then this exercise shall be
considered to be invalid. Eg- the law passed by legislature gave the deputy collector the power to
enforce excise duty on paper as he may deem fair and just- he issued a notification that the excise
duty will be imposed as directed by the collector.

This means that the discretion given under the law was surrendered- the court held that discretion
cannot be exercised under discretion.

Purtapore Sugar Co. v. Cane Commissioner, Bihar

Power given to allot defined area to sugar companies so that farmers can bring the cane to these
destined area- later on in exercise of his discretion- he took away 99 villages from one co. and gave
them to another company while justifying that the same was done under the order of the CM. the
 court held that the exercise of discretion of changing the attachment area of the sugar company is
invalid because the commissioner exercised discretion at dictation of someone else.

However, discretion must be exercised in a manner as directed by the law. Eg- the govt. didn’t
grant permission to prosecute a person- a case was filed that there is no proper exercise of
jurisdiction- the HC directed the govt. to give permission to exercise discretion.

The order of the court is an exception and therefore, court may order to exercise discretion in a
particular manner or else cannot be exercised. Exercise of discretion and taking advice is another
thing.

Advice is allowed but not exercise of discretion under dictation. A person for eg, has been
compulsorily retired- the question was whether the decision can be reviewed and advice taken
from advocate general and then the case was reviewed- the court said mere advice and not
dictation.
The fourteenth ground is that exercise of free discretion should not be fettered or cramped
by self imposed rules, however, hedging of wide discretion is necessary (fettering or
cramping of decision is not allowed but hedging is allowed.)
The question is “how is discretion fettered?”
It is fettered by 4 means:
1. By delegation
2. By adoption of a policy which is very rigid/ over rigid.
3. By contract.
4. By equitable estoppel.
The law says that discretion shouldn’t be fettered.

Eg-

* If law gives discretion but doesn’t allow delegation and if one makes rules and regulations to
delegate, this unless authorized by law shall be considered as fettering the discretion.

* Adoption of the policy which is strict and over-rigid- if one circumscribes that space, then one
has but fetters on the exercise of discretion by adoption of this policy.

GELL V. TEJANOOR (PC)

The municipal corporation act of Bombay gave power to the Municipal Corporation that you may
give license to horse driven carriages which were then known as “Victoria.”
The Corporation made a rule for themselves that unless the victoria is of a particular design, we
will not give license to that victoria. So instead of deciding the matter on road- worthiness, they
decided on the design of victoria. The court said that they fave fettered the decision by a self made
policy and therefore, it isn’t valid.

KESHAV BHASKARAN V. STATE OF KERALA (1961)

In Kerala then there were open school education system- no matter whatever is the level of
schooling if one thinks one is in a position to pass high school they can directly appear. This raised
a question that kids who were not mature were passing the high school. The director of education
was given the discretion that he wont give the passing certificate till the time he isn’t 16 years old.
The discretion was that in suitable cases he might issue a transfer certificate to a person who is not
16. (reasoning was that some students were gifted)

The director of education made a rule for himself and notified that he will not use his discretion
if a person is below 13.

The court held that by this rule the director of education has fettered his discretion, he has disabled
himself from exercising discretion which was given to him under law. He has restricted his area
of oscillation without any permit from law. Let there be a wide use where the public interest
lies.

JEET RAM V. STATE OF PUNJAB (1979)

The law was passed that a person in police dept. who is an inspector and has put in 6 yrs. Of
service maybe promoted as DSP- the dept. made a rule and notified the rule that in suitable cases
the period of 6 years may be relaxed- the dept. makes a rule that no person shall be promoted
unless he has devoted 4 years of service. So the rule says 2 years relaxation and law says 6 years-
this was challenged as fettering of decision- court held that the fettering of the discretion is invalid.

Under CPC, section 73, the district judge can give anticipatory bail- on what condition it will be
given? - law is silent, it depends on discretion- there was a lot of confusion in this area. Power was
being misused also. So in a case which was brought before the HC in order to bring uniformity
[uniformity is the sense of law, diversity is the sense of discretion] the HC lays down certain rules.
The case in an appeal goes to the SC which says that HC cannot fetter the exercise of discretion
of the judges- otherwise the very purpose of giving the discretion is lost. Uniformity is not
necessary ad therefore, the guidelines given were quashed.
Ministry of Finance issued a order to the banks that whenever any of the employee has been
investigated by the vigilance commission, and vigilance commission has recommended certain
permission, then it will be compulsory for you to award that punishment to the employee, where
the banking act has given the authority discretionary power in case od admn. matters.

The court said that this is fettering of the decision- one cannot compel the person given discretion
by law to exercise it in a particular manner.

One cannot fetter discretion by any contract- under the electricity act, the board has the power
to fix and change the electricity tariff at any time the board feels fit and proper- the electricity
board entered into a contract with a company and that contract stated that the company will supply
electricity at a particular rate for 10 years- there was fettering of discretion- they may change the
rate of electricity at any time they deem it to be fit and proper. The court rules such contract as
invalid as contract has effect of fettering of decision which isn’t allowed.

If the law has given discretion, one cannot enter into a contract with anybody and put a limitation
on free exercise of discretion given under law.

Equitable estoppel- estoppel means that when a person by his representation or conduct makes
another person believe in the state of certain things and the other believes his representation and
changes his position to his disadvantage, then one cannot go back on his words.

Eg- there are 2 agricultural fields adjacent to each other sharing a common boundary- there is a
tree on this boundary- A knows the tree is on his side- B thinks its on his side. The day B tries to
cut it down, A being present there doesn’t object- after the cutting down of the tree- A cr. case of
mischief has been filed against B by A- now A will be stopped to claim the same, because he didn’t
object.

If the discretion has been given one cannot fetter that by making a representation to the
other person that the state of affair existing will be continued.

Afghan Industries v. UOI

Executive has power to frame and change policy as per public interest- the policy was that if any
company makes any export to the middle east- then equal to the amt. of export the govt. of India
will give an import license.

Indi- Afghan agencies, on this basis started exporting. Then they asked the govt. to give them
import license which the govt. rejected on the ground that the policy has been changed.
The same was challenged and an appeal for estoppel was made- the govt. says that they have the
discretion to change the policy whenever they want, and this is an unfettered right.

The court agrees that no equitable estoppel can fetter the right of the govt. to change its policy if
not in public interest.

Wide discretion must always be hedged by a policy.

Eg- the govt. gave the university 1 lakh in the form of scholarship- 1000 students applied and it
was awarded to A- any student doesn’t mean there should be no reasonableness- therefore, such
wide discretion would be declared invalid by the court.

Himachal Pradesh HC- the govt had the power to nominate one person to medical college
outside state on the ground of sports- advertisement in the newspaper- all can apply.

Many students represented India in Int’l Sports; there were national level players, state level
players- who is to be nominated?

‘Any student’ mentioned in the scheme.

Son of the secretary (close to CM), he was selected (represented the school in inter-school event)

This selection was challenged- the govt. said they have discretion- HP HC says this nomination is
invalid because wide discretion given hasn’t been hedged by policy. This exercise of discretion is
invalid.

Y Srinivasan v. J Veriyaah (1992)

The govt. under law had the power to select any shopkeeper as dealer for fair price shop-one
selected- challenged on the grounds of selection?

The govt. takes the discretion plea. The court said that it is not their personal discretion, it is a
discretion given by law and it is to be exercised in public interest reasonably.

The court directed to give the basis of qualification and then select the appropriate person.

Rama sugar industries v. state of Andhra Pradesh (1974)

Legislature passes a law and empowers the govt. that they can impose sales tax on sugar factories-
on the purchase of sugar cane- discretion is given under law to exempt any new sugar factory for
a period of 3 years- the govt. made a policy that there will be exemption of only those factories
which are in cooperative sector.
If there were new industries in cooperative sector, the discretion would be exercised, no other
case. This rule or policy was challenged?

Was it hedging or fetter- the 3:2 decision

Majority- hedging- the govt. has a wider policy to encourage cooperative sector and therefore if
exemption is to be granted in the cooperative sector, there is nothing unreasonable and therefore,
not fettered.

Minority- Fetter- the law gave discretion to give benefit to certain industries and separating a class
of factories- is misuse of discretion.

The fifteenth ground is non application of mind. If one has exercised discretion without
applying mind to the existing facts, one hasn’t exercised his discretion properly. There must be
conscious application of mind to facts to apply discretion.

Jaggan nath v. state of Orissa (1966)

The person was detained u/d preventive detention law on the six grounds mentioned in the act.
The order was issued in which all 6 grounds were mentioned- it was challenged that this discretion
has been taken w/o applying mind to the facts- the court quashed the exercise of discretion.

Abdul Razaq v. Commissioner of Police (1989)

A bad charactered person- for one case he was already serving a sentence however his bail
application was likely to be considered.

The police became apprehensive about the conduct of this person outside- they made a plan and
filed an FIR against him and in that it is written that this person is likely to be released on bail and
he must be prohibited to enter certain area.

This was challenged on the ground that the second order was passed w/o application of mind as
his bail application was already arrested- where the admn. authority hasn’t applied his mind and
exercised discretion, that discretion wouldn’t be considered valid.

Sixteenth ground- violation of PNJ

If one is to exercise discretion then one has to follow the procedure and if the procedure followed
violated PNJ then exercise of discretion is not just.

AK Kripak v. UOI (1970)

The govt. had the discretion to appoint someone to the post of conservator of forest- the process
of selection was violative of PNJ- candidate was member of selection board- the court says his
exercise of discretion is invalid.

The seventeenth ground is that discretion’s exercise shouldn’t be arbitrary

Arbitrary and unreasonable almost share the same space and the natural habitat of these two is A.
14 of Indian Constitution.

Arbitrary is where reasonable nexus b/w the reasons and the action is missing,

If the action is such that no justification can be found in the mind of a reasonable man for that
action

Bharat heavy electrical v. M. Chandrashekhar (2005)

Here an employee of BHEL took a loan from the company and according to the rules of the CO.
he deposited the title deeds of his property and the reason is that when title deeds are deposited
the act as security for the loan. Then this employee forged a letter from his superior in which it
was written that he may be allowed to withdraw the title deeds paper. On this, the deeds were
given to him. Now he sold the property and didn’t pay back the loan to the company- his services
were terminated.

The labor court decides that there is no any earlier stance of misconduct on his part, why?

Secondly, he is a good cultural activist, because of which many prizes came to the company.
Therefore, the punishment of dismissal is overruled. The HC concurs with this verdict. The SC
says that the decision of the HC is arbitrary because the reasons given have no connection with
the object sought to be achieved. The HC says that no matter in him the confidence is lost, but
because he is a good social activist, he may not be dismissed. The SC says being an activist have
nothing to do with the fraud. And therefore, they say that it is an arbitrary action.

Roookie’s case- one can develop the river banks and whatever expenditure incurred can be recovered
from those who have house near the river- the whole money was to be recovered from one
residence in this case- the court held that it is arbitrary. No justification can be found in the
reasoning.

MODES OF REVIEW OF ADMINISTRATIVE ACTION

How can an administrative action be challenged?

 The difference b/w review (court doesn’t go deep but look into the constitutionality and legality
of action and don’t go on the question of facts) and appeal (the court goes deeper and even
examines the question of law and fact, both)

What are the different modes of review for admn. action?

- JR is the basic feature of constitution. But question is in the const. from where does this power
come?
o This power hasn’t been given in the constitution, however, the power of JR arise from the scheme
of the Constitution ad various provisions of the const.
o If any country has a written const. wherein there is an entrenched bill of rights
o There is a division of power.
- JR also emerges from A. 145(3) of the Const.- it says that if there is any constitutional question
which arises it shall be decided by the SC by a bench of atleast 5 judges.
- JR also emerges from A. 143- any question referred by president to the SC that will be decided by
the court.
- FR Chapter- says that if any law is assed which imposes unreasonable restriction on exercise of
FR- it shall be void.
- Article 32, 136, 226,227, 141, 142- complete justice- by interpreting the constitution.
- No matter JR is not specifically given but it emerges from schemes and various provisions of the
const.
- How can one challenge the action of the administration?
o Constitutional mode of review- one can file a regular writ u/A 32 (SC) or 226 (HC). Anybody can
also challenge admn. action through PIL.
o In some cases, the courts have held that they can take suo moto action.
 In one case in a particular state a newspaper report appeared that people are selling children to
afford food, and this was taken as a suo moto action.
o Through Curative petitions, review petitions and in this manner the admn. action can be challenged
in the court of law.
o If FR are violated go to SC, if not FR but other harm, can approach the HC.
- Non- constitutional mode of JR.
o This is binding.
o The civil court cannot decide the constitutionality of law but reasonability of the action.
o Can create specific relief, injunctions, damages, declaratory actions etc.
o Can go before the admn. tribunals where the action can be challenged.
o Created under the relevant list in which the power has been given to the state govt. or the central
legislature to create a tribunal. They are a part of executive and decide the cases. AST is the most
important tribunal to decide disputes b/w govt. servants.
- Non- binding review.
o Review, but decisions are not binding.
o EG- statutory commissions- the HR commissions- they sometimes give one the damages, interim
damages, otherwise, their decisions are not binding but advisory in nature.
o If there is a special court created under law, their decision is binding.
- Informal mode of review
o They aren’t binding or advisory but create a public opinion impacting the admn. Authority taking
that decision and it affects this decision by the administration.
o EG- mass media- this helps a lot in correcting admn. action decisions.
o Interest groups presentations- Union and associations play an imp. Role to informally control the
admn. action and then;
o Civil society- people carry influence which may impact the decisions.
GROUNDS OF JR

Various grounds but lord Dipplock in the case of council of civil service union v. minister of civil
services (1985)- very scientifically regrouped the various grounds to challenge the admn. grounds- he said that

Law gave the power to the minister that he can exercise discretion and change the rules related to the recognition of
the unions in defense and communication sectors.

He can also completely prohibit union activities in various sectors.

So the minister framed the rules and banned the union activities in the defense sector- this was challenged by the
unions on the ground that b/f the rules were framed and action was taken- they weren’t consulted- so from where
the consultation arises- in that dept. there is a law history that whenever the rules of the union are changed they are
done with the consent of the members of the unions.

The presence of past law makes the doctrine of “legitimate expectation” applicable here. In this case, the action of
the minister was quashed and Dipplock regrouped the whole grounds on the basis of which the action can be
challenged:

1. Illegality;
- Covers what is covered u/d doctrine of ultra vires. Which means that:
o The admn. Authority lacks jurisdiction- A. the authority isn’t properly constituted; B. there is
an error of jurisdictional fact and law.
o If the law itself is unconstitutional- because it violates the provision of FR- then it is a case of
illegality.
o The preliminary essentials have been disregarded. EG- certain actions can be taken with prior
notice and if this isn’t given then this means that whatever decision is given isn’t good.
o The authority exceeded its jurisdiction in terms of territory, persons, subject matter or
pecuniary limitations.
o Failure to exercise jurisdiction- if power is given, it must be exercised. This means that:
 Where the authority has sub-delegated jurisdiction w/o the authority of law.
 Acting under dictation.
 Non- application of mind- EG- preventive detention on 6 grounds and mind is to be applied that
which ground is to be applied to this person. If all six grounds are applied, the court said it is
failure to exercise jurisdiction.
 Declining to use jurisdiction
 Fettering of discretion.
o Abuse of jurisdiction- A. where the power has been exercised on irrelevant considerations; B.
leaving out a relevant considerations.
o If one is using his power for improper purpose- exercise of power is colorable- action for
improper purpose.
o Malafide purpose- there is enmity and because of this there is improper action taken.
2. Irrationality;
The difference b/w irrationality and unreasonableness is that irrationality is w/o any reason and
unreasonableness is w/o any valid reason. They along with arbitrariness may cover the same space
sometimes. The decision of this action being irrational is to be done in ‘wandsbury principle’- laid
in the wandsbury case 1948- lays that if the admn. action is so outrageous it defies of any logic or
any moral standard that no reasonable person on those facts and circumstances can come to that
particular conclusion- Lord Dipplock said that this is still the test.
EG- if govt. is to decide the size of containers in which food items are to be marketed, they have
decided on the size which is not economically viable- this means that the action is irrational.
Competitive exams for the post of junior patwaris- about a lakh of students appeared- it was found
in certain examination sheets there is a special mark that has been made- it was thought that there
was some conspiracy going on- on this ground the whole examination was cancelled and the case
reached the SC and it said that if the examination’s impartiality and efficiency cannot be guaranteed
then it is irrational to be going on. Using the wandsbury test, it was decided.
3. Procedural impropriety;
 The required procedure- there is no laid down procedure- sometimes the civil procedure is used,
sometimes authorities are asked to use their own procedure, and if nothing is there then they must
follow the procedure laid down by the PNJ. If procedure isn’t followed and PNJ are violated, then
it is a case of procedural impropriety and the same can be challenged in the court.
4. Leave it for the future and that has come and therefore, the fourth ground is proportionality.
In India and abroad, whenever there is some admn. action which violates the FR- then there the
doctrine of proportionality to check. This principle of proportionality was taken up in US by -----
-. Common law and European law took help of principle of proportionality. This doctrine
originated in Persia and reached to Europe (civil law countries), and by applying this they tried to
introduce fairness and reasonableness into admn. Action.
Proportionality means:
1. The purpose or the end one is trying to achieve by law/admn. action must be legal and legitimate;
It must not violate any pr. Of the constitution and the law;
2. The means adopted to achieve those ends must be reasonable connected to the end- eg- one is
trying to achieve transparency and fairness, absence of corruption- the means is Aadhar card- the
end is corruption free society. Both must be reasonably connected to each other.
3. Whether the means employed to achieve the object could have been achieved by less burdensome
means.
4. Whether there is a proper balance b/w the means and the ends.
Eg- one wants to kill a fly- one will achieve a means which will have a balance with the end- no
hammer can be used to kill the fly. There must be a balance b/w the actions and the end.
Eg- in the aadhar card case the court said that there is no balance b/w justice to the poor and
aadhar scheme- no thumb impression or iris match- therefore the object and means are
imbalanced.
There is a fundamental right of privacy- if they are trying to connect phones to aadhar- then
balance b/w transparency and privacy is lost.
The court in most cases show deference to the admn. action wrt to policy, technical matters,
defence, foreign affairs, etc.