Table of contents

analysis of previous year papers

separation of powers
introduction
Locke
Montesquieu
historical differences and UK v USA approach (relevant for administrative law overall)
there is no separation of powers in the classical sense anywhere in the world
important case laws on separation of powers in India
delegated legislation and its control
modern day examples
meaning of delegated legislation
conditional/contingent legislation
need for delegated legislation
purpose based classification of delegated legislation
sub delegation
exceptional delegation or Henry VIII clause
constitutionality of delegated legislation
In Re Delhi Laws Act
excessive delegation is unconstitutional
select cases on essential legislative function
norms of jurisprudence of delegated legislation
control mechanism of Administrative rule making in India
principles of natural justice
meaning and scope
Situations in which principles of natural justice are attracted
rules of natural justice
Rule against bias
Audi alteram partem
reasoned order
post decisional hearing
exceptions to the rule of natural justice
effect of breach of natural justice

analysis of previous year papers

definitions of administrative law, terms
ratios of important cases
constitutional provisions
conceptual questions

Note-

1. Important case laws are in bold and their headnotes/summaries should be read.
2. Sources are I P Massey and AK Jain, however, any standard textbook can be used.

separation of powers
introduction
Separation of powers (hereafter SOP) can be traced to Aristotle, and Locke but the most common
formulation was given by Montesquieu.

Locke

Distinguished between

1. Discontinuous legislative power (rule making power)

2. Continuous executive power (modern day executive and judicial functions)
3. Federative power (foreign affairs) [Second treatise of civil government]

Montesquieu

He divided power into

General legislative power

Executive power
Executive power in nature of Locke's federative power
civil law executive power including executive and judicial power

SOP in its classical sense implies

1. Personnel separation
2. Non interference
3. Functional separation

4 formulations of SOP

1. Exclusivity/structural/classical sop - simple functions of Government and watertight

compartments
2. Functional - rise of intensive government and welfare state. Sources of power must be
different but interaction is possible.
3. Checks and balances - present day theory, other organs check and balance if one organ tries
to exercise power wider than it should
4. Mutuality principle or sharing of power - moving towards cooperation and coordination,
welfare of society is paramount rather than whose power it is. Purpose > limits.

SOP

1. Negative sense
2. Positive sense - Judicial affirmative action and judicial activism

historical differences and UK v USA approach (relevant for administrative law overall)

Historical differences
Consequent Red light/common law/circumscriptive (UK ) v Green light/facultative/American
aproach (US) towards Administrative law
UK has parliamentary supremacy, unwritten constitution, and fusion of powers with executive
forming part of legislature
USA has presidential system, written constitution, and SOP.

there is no separation of powers in the classical sense anywhere in the world

separation of powers is a dilutory doctrine because of many exceptions, its classical formulation is
structural rather than functional and it cannot be literally applied to any modern form of government
because there are no watertight compartments. no modern Government can function like this. the
main emphasis is on protecting the little man against the might of the state. (prof U baxi -
Administrative law is the study of pathology of power). The main aim is against absolutism,
accumulation and Monopoly of power rather than interaction. To be clear, Montesquieu did not even
use the word separation in his formulation. LPG, Globalisation, complexities of modern Times and
governance make the textbook implementation of this doctrine impossible.

UK

parliamentary executive is against personnel separation

house of commons controls the executive and is against principle of non interference.
independent judiciary however judges can be removed by the parliament
no functional separation : House of lords has both judicial and legislative functions, it is the
highest court of the country although in practice the situation is slightly different.

USA

power of Judicial review was usurped by supreme Court in in Marbury v. Madison

exercise of veto power and treaty making power by president
interference by president in supreme Court through appointment of judges
delegated legislation, growth of administrative tribunals and independent statutory
commissions

INDIA

ONLY ARTICLE 50 TALKS ABOUT SEPARATION OF JUDICIARY FROM EXECUTIVE. There is is

no constitutional scheme embodying any formalistic or dogmatic division of powers
instances of violation of separation of powers include (both functional and personnel
overlapping, similar to UK)

1. power of Judicial review explicitly laid down in constitution

2. Doctrine of basic structure
3. ordinance making power to President and government
4. Parliamentary form of Government
5. Judicial functions by legislature in case of breach of privileges, impeachment of president
and removal of judges

important case laws on separation of powers in India

1. Ram jawaya Kapur vs State of Punjab no rigid SOP but functional differentiation between
organs, one organ cannot usurp the functions of the other.
2. In re Delhi laws essential legislative power cannot be delegated because of a broad
separation of powers
3. Kesavananda Bharati vs union of India SOP was held to be a part of the basic structure.
4. Indira Gandhi Nehru v Raj Narayan only broad separation of powers which is part of basic
feature. A judicial decision could not be overturned by legislative process. SOP is about
restraint, neither parliament nor judiciary should enter each other's domain.
5. L chandrakumar vs union of India Judicial review is a basic feature of the constitution.
Constitution allows blending but not the accumulation and monopoly of power.
. Asif Hameed vs State of Jammu and Kashmir - Court cannot usurp the functions assigned to
the executive and legislature under the constitution and it cannot do so even indirectly.

delegated legislation and its control

modern day examples
Q. Think of a very contemporary and ongoing example of delegation of powers throughout the
country.
meaning of delegated legislation
different from executive legislation eg ordinances
different from conditional legislation
simple definition - any law not made in the parliament/legislature
to delegate - means to outsource, give someone else the job to do, legislature gives this job of
making laws to executive
includes rules, regulations, bye laws, orders , schemes, directions, notifications. 13(2) in
constitution also has an inclusive definition
salmond defines it as that which proceeds from any authority other than the sovereign
power and is therefore dependent for its continued existence and validity on some superior
or supreme authority.

conditional/contingent legislation
formulation by USA due to sop, but a thin difference from delegated/subordinate legislation
in conditional legislation the gun and gun powder is provided by the legislature and the
administrative authority is required to only pull the trigger but in subordinate legislation the
administrative authority also has to manufacture the gunpowder.
conditional legislation has no element of delegation of legislative power
legislation is complete itself but operation is dependent on fulfillment of certain conditions
which the authority has to determine

need for delegated legislation

welfare state, quantity and quality of law
technical and complex government
frequent adjustments and experimentation
crisis legislation for emergency
need for secrecy till law comes into operation
discretion eg expansion of public utility services
helps in participation of those affected

purpose based classification of delegated legislation

(Just for understanding, no need to mug up)

enabling act
extension and application of act
dispensing and suspending acts
alteration acts. Alteration includes both modification and amendment
taxing acts
supplementary acts
approving and sanctioning acts
classifying and fixing standard acts
penalty for violation acts
clarify the provisions of the statute

sub delegation
delegatus non protest delegare sub delegation is invalid unless authorised by the parent act. It must
be express and cannot be inferred. Example essential commodities act. Section 5. Sub delegation
of power to state governments by central government who can further sub delegate it to their
officers. It should not be resorted to unless it is unavoidable and proper safeguards must be
provided because it makes parliamentary control illusory, postpones the rule making process and
makes publication of rules difficult.

exceptional delegation or Henry VIII clause

INDICATES EXECUTIVE AUTOCRACY
examples will include power to legislate on matters of principle, power to amend acts of
parliament, power conferring such a wide discretion that it is almost impossible to know the
limits, power to make rules without being challenged in a court of law.

constitutionality of delegated legislation

there is nothing in the Indian constitution which expressly prohibits the legislature from
delegating it's power. therefore if the court had to find any restriction on the legislature in the
matter of delegation it had to be on the basis of some general theories and principles of
constitutional law.
pre independence cases - emperor v benoari lal, jatindra nath Gupta v province of Bihar.
In re Delhi laws - the Bible of delegated legislation
Ashok kumar Thakur v UOI (try to remember landmark judgements which can be used in
multiple places)
m/s Utkal construction v state of Orissa

In Re Delhi Laws Act

(Read case commentary in detail)

Doctrine of separation of powers is not a part of the Indian Constitution.

Indian Parliament was never considered an agent of anybody, and therefore the doctrine of
delegatus non potest delegare has no application.
Parliament cannot abdicate or efface itself by creating a parallel legislative body.
Power of delegation is ancillary to the power of legislation.
The limitation upon delegation of power is that the legislature cannot part with its essential
legislative power that has been expressly vested in it by the Constitution. Essential legislative
power means laying down the policy of the law and enacting that policy into a binding rule of
conduct
the power to modify a law already in existence in a particular area can be delegated but not
the power to amend or repeal the law in that particular area.
it is open to the legislature to formulate the policy as broadly and with as little or as much
details as it thinks proper and it may delegate the rest of the working out of details within the
framework of policy.
the court can interfere if no policy is discernible at all on the delegation is of such an
indefinite character as to amount to abdication, but as the discretion rests with the legislature
in determining whether there is necessity for delegation or not, the exercise of such discretion
is not to be disturbed by the court except in clear cases of abuse.

This case

legitimised delegation of powers. (so no more controversy about its constitutional validity or
legality)
imposed an outer limit on delegation

Now the only controversy that remains in various cases is whether the legislature has delegated an
essential legislative power.
excessive delegation is unconstitutional
1. Factors for determination include subject matter of the law, its provisions and preamble,
scheme and factual and circumstantial background enactment
2. Court must examine scheme of the statute including preamble, facts circumstances and
background under which statute was enacted, history of legislation, complexity of the
problems which state has to face, liberal construction to be given to the statute its policy and
guidelines, statute even if skeletal will be valid.
3. Where two views are possible court will choose the one favouring its validity
4. Taxing power is an essential legislative power which can be delegated only if the legislature
itself exercises essential legislative function namely laying down policy of the act which
permits sufficient guidelines for the imposition of the tax, it can be done. This power to
exempt any item, power to bring certain items within the Ambit of tax, power to determine
rate of tax with in the minimum and maximum rates laid down in the act, power to determine
rate of tax, power to select different rates for different commodities provided there is rational
justification. a charge under taxing statute can only be under the act and not under the rules.
5. BS Yadav versus state of Haryana it is not enough that the statute should authorised
retrospective operation of the delegated legislation, the authority must also show that there
was sufficient reasonable and rational justification for applying the rules retrospectively.

select cases on essential legislative function

1. Raj Narain Singh vs chairman Patna administrative committee - power conferred was valid
but the way in which it had been exercised was invalid
2. Harishankar Bagla versus state of MP high water mark of judicial deference to will of
legislature, only a skeletal legislation had been made
3. Hamdard dawakhana versus union of India first case which the supreme Court struck down
and act on the ground of excessive delegation of legislative powers
4. Gwalior rayon silk manufacturing company limited versus CST. Abdication test was
proposed, not accepted. Test of policy and guidelines upheld.
5. Ishwar Singh vs State of Rajasthan. delegating authority will retain not only power to revoke
the grant of power but also the power to act concurrently on matters within the area of its
authority except insofar as it may have bound itself by an act of his delegatee.
. Kerala Samsthana Chethu Thozhilali Union v State of Kerala (important case can be used for
a number of propositions in administrative law) rules cannot be in contravention of
constitution or any other law, there must be Nexus between the rules and policy and purposes
of the act, administrative rulemaking must satisfy reasonableness requirement under article
14 and 19.

norms of jurisprudence of delegated legislation

control mechanism of Administrative rule making in India
parliamentary control
direct general control
direct special control/laying
Atlas Cycle industries v state of Haryana. Wording is not important, the
consequences of non compliance are for determining if laying requirement is
mandatory or not.
indirect control - through parliamentary committees
procedural control
drafting
antenatal publicity
consultation
post natal publicity/publication
harla v State of Rajasthan a law cannot be enforced unless published. This is so
even if the parent act is silent as to stipulation of publication.
state of Orissa v sridhar Kumar . On the point of medium of publication.
judicial control
enabling act is ultra vires is the constitution
administrative legislation is ultra vires the constitution. Eg Kerala Samsthana Chethu
Thozhilali Union v State of Kerala, also see I R Cohelo v State of TN
administrative legislation is ultra vires the enabling act eg Kerala Samsthana case
in excess of power conferred by the enabling act
in conflict with the enabling act
conflict with the prescribed procedure of the enabling act. PNJ does not apply to
legislation unless it is required by the enabling Act.
unreasonable arbitrary and discriminatory. Eg Air India v Nergesh Meerza, Central
inland water transport corporation vs b n Ganguly. However, judges cannot
 substitute their wisdom with the wisdom of the administrative authorities and
test of reasonableness should be applied in context of life's realities. Therefore, in
administrative law reasonableness is not the same as reasonable man in tort,
reasonableness is true construction of the act wrt wednesbury
unreasonableness.
that it is malafide
encroachments upon rights of private citizens derived from common law in absence of
an express authority
conflicts with the terms of other statute
lawmaking competence of the legislature.
Vagueness

An ultra wires delegated legislation becomes null and void upon being so declared by the
court.

principles of natural justice

meaning and scope

minimum fair procedure

not the same as natural law or justice of nature
fairness reasonableness equity and equality
common law counterpart of American procedural due process
it is common sense justice
no water tight classification between natural and legal justice and result is to ensure
substance of justice.
instances in the Indian constitution include preamble, article 14 and 21, article 311

Situations in which principles of natural justice are attracted

Principles of natural justice are attracted whenever a person suffers a civil consequence or a
prejudice caused to him by any administrative action. Civil consequences means infraction of
personal or property rights, violation of civil liberties, material deprivation or sufferance of non-
pecuniary damages. Loss of legitimate expectation may also attract the principles of natural
justice. Thus where a person cannot justify his claim on the basis of any law but suffers a prejudice
or adverse consequences he is entitled to the benefit of the principles of natural justice

rules of natural justice

1. Nemo in propria causa judex, esse debet or Rule against bias
1. Personal bias
2. Pecuniary bias
3. Subject matter bias
4. Departmental or institutional bias
5. Preconceived notion bias
. Bias on account of obstinacy
2. Audi alteram partem
1. Right to notice
2. Right to no evidence against him
3. Right to present case and evidence
4. Right to rebut adverse evidence
5. no evidence to be taken behind the back of the other party
. Report of enquiry to be shown to the other party
7. Reasoned order
. One who decides must hear
9. Rule against dictation
10. Third party to the dispute to be heard if he is likely to suffer substantial injury
3. Reasoned decision or speaking order.

The first two are universally accepted principles, the last one has been insisted upon by the
supreme Court of India and is still a work in progress.

Rule against bias

meaning
state of Punjab v VK Khanna impression which other people would have, justice must not
only be done but also seen to be done.
AK kraipak vs Union of India it laid down that rules of natural justice apply even to purely
administrative functions. when there is a real likelihood of bias actual proof of bias is not
necessary.
Tata cellular vs Union of India. Distinction between reasonable suspicion and real likelihood
of bias. Court should only act on real base and not merely a likelihood of bias.
j Mahapatra and co vs State of Orissa
doctrine of necessity - bias would not disqualify an officer from taking an action if no other
person is competent to act in his place. Charan Lal Sahu v UOI .Held in Vinay Chandra Mishra
case that bias does not apply in contempt proceedings. Election commission of India versus
doctor Subramaniam Swami supreme Court changed the doctrine of necessity to doctrine of
absolute necessity meaning thereby that this doctrine can be invoked only in cases of
absolute necessity.

Audi alteram partem

irregular service of notice versus non service
at least summary of contents of adverse material should be provided along with an
opportunity to rebut evidence
 cross examination is not imperative everywhere
Hira Nath Mishra v Principal, Rajendra Medical College
AK Roy v UOI
legal representation
Khatri vs State of Bihar
Nandini satpathy vs PL Dani
A K Roy - if legal representation is denied to a detenu the state also cannot take the help
of a lawyer.

reasoned order
Sunil Batra vs Delhi administration
Siemens engineering and manufacturing company versus Union of India
SN Mukherjee versus Union of India unless the requirement of recording of reasons has been
dispensed with either expressly or by necessary implications, an administrative authority
exercising judicial or Quasi judicial functions must record reasons in support of its decision
because it facilitates the exercise of appellate or revisional powers, acts as a deterrent
against the arbitrary exercise of power and satisfies the party against whom the order is
made.
there is still a controversy whether reasons company is a third pillar of natural justice

post decisional hearing

balance between administrative efficiency and fairness to the individual
landmark case of Maneka Gandhi VS Union of India Court held that a fair opportunity of
being heard following immediately the order impounding the passport would satisfy the
mandate of natural justice.
Swadeshi cotton mills vs Union of India
HL trehan versus Union of India post signal hearing should be justified only in very
exceptional circumstances required in authority will normally proceed with the closed mind
and there is hardly a chance of getting a proper consideration of the representation at such a
stage.

exceptions to the rule of natural justice

exclusion in emergency. On a related note, see habeas corpus (ADM Jabalpur) case and rule
of law formulation
cases of confidentiality. SP Gupta vs Union of India. No opportunity of being heard can be
given to an additional judge of a High Court before his name is dropped
purely administrative matters
impracticability
interim preventive action
legislative action plenary or subordinate (because these rules lay down the policy without a
reference to a particular individual)
exclusion under Indian constitution - articles 22, 31A, 31B, 31C, 311(2)
where no right of the person is infringed
statutory exception or necessity Charan Lal Sahu v UOI (Bhopal Tragedy case)
termination of a contractual agreement
exclusion in case of government policy decision BALCO Employees' Union v UOI
useless formality theory (still not firmly established)

Principles of natural justice do not supplant law but supplement law therefore unless language of
the law leaves no other option exclusion cannot be inferred. Burden of proof lies on one who
alleges exclusion.
effect of breach of natural justice
courts are unanimous that a decision rendered in violation of the rule against bias is mainly
voidable and not void However there is a fundamental disagreement on the breach of the rule of
fair hearing. supreme Court in nawab Khan vs State of Gujarat categorically held that in order
which influences any fundamental freedom passed in violation of the Audi alteram partem rule is a
nullity. The effect of decisions in maneka Gandhi and Swadeshi Mills cases is that an order passed
in violation of the rules of natural justice is not void and can be validated by a post decisional
hearing. However A R Antulay versus rs Nayak flavours the proposition that any action in violation
of the principles of natural justice is a nullity.