Overview of Administrative Law Concepts
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Deepu GuptaOverview of Administrative Law Concepts
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Deepu GuptaMODULE 1:
Definition, Nature, Scope and Growth of Administrative Law
Basic Concept
The concept of Administrative Law has assumed great importance. It is a branch of law
which has witnessed remarkable advances in the welfare state as it is being increasingly
developed to control abuse or misuse of governmental power and keep the executives and its
various instrumentalities and agencies within the limits of their power. Welfare state is an
administrative state which exercises public power for achievement of socio-economic
purposes and performs numerous functions. In short, as pointed out by W. Friedman in his
well-known book 'Law in a Changing Society', the state performs five different functions and
three out of these result from activities of the state as provider, as entrepreneur and as
Economic Controller.
Statutes like the Environment (Protection) Act, 1986; the Water (Prevention and Control of
Pollution) Act, 1974; the Air (Prevention and Control of Pollution) Act, 1981; The Forest
Conservation Act, 1980; and the Wild Life Protection Act, 1970 provide for administrative
control and regulation in order to protect environment and natural resources. Environment
clearance has to be obtained from the concerned authorities for the construction of dams and
houses.
Development of Administrative Law
Administrative Law has been characterized as the most "outstanding legal development of the
twentieth Century". However, it does not mean that there was no Administrative Law in any
country before the twentieth Century. Being related to public administration, Administrative
should be deemed to have been in existence in one form or another in every country having
some form of Government. It is as ancient as the administration itself as it is concomitant of
organised administration.
The rapid growth of administrative law in modern times is the direct result of administrative
powers and functions. This development can partly be attributed to the critical international
and internal situations creating a sense of insecurity which compels the government to
acquire vast powers to provide for the defense and internal security of the country. For
example, in India, the National Security Act, 1980 confronts vast discretionary powers of the
administration to interfere with the personal freedom of the people but mainly the growth of
administrative law is to be attributed to a change of philosophy as regards the role and
functions of a state. The ruling political gospel of the 19th century was laissez faire which
manifested itself in the theories of individualism, individual enterprise and self-help. The
philosophy envisaged minimum government control, maximum free enterprise and
contractual freedom. The State is obligated to provide for education and assistance in old age,
in unemployment and other contingencies [Article 41]. The State provides free and
compulsory education for children up to the age of 14 years [Articles 45 and 21 A]. Further in
the interpretation of law and constitution, the judiciary does, at times, take note of the ideals
of a social welfare state even though some of the ideals may not be expressly incorporated in
the constitution.
Benefits of Administrative Law
Administration makes policies, provides leadership to the legislature, executives and
administers the law and takes manifold decisions. It exercises today not only the traditional
functions of administration, but other varied types of functions as well. The administration
exercises legislative power and issues a plethora of rules, bye-laws, and orders of general
nature. This is designated as delegated legislation or subordinate legislation in Administrative
Law. Delegated legislation has assumed more importance quantitatively and qualitatively,
than even the enabling legislation enacted by the executive. The administration has acquired
the powers of adjudication over disputes between itself and private individuals interested and
thus have emerged as plethora of tribunals diversified in structure, jurisdiction, procedures
and powers, connected with the administration with the varying degrees and pronouncing
binding decisions like the courts whose powers have been diluted or excluded in several
areas. The administration has secured extensive powers to grant, refuse or revoke licenses,
impose sanctions and take actions of various kinds in its discretion or subjective satisfaction
to enable the administration to discharge effectively its rulemaking – adjudicatory and other
discretionary and regulatory functions. It has been given vast powers – inquiry, inspection,
investigation, search and supervision. The truth is that in modern democratic societies, the
administration has acquired an immense accession of powers and has come to discharge
functions which are varied and multifarious in scope.
Definitions of Administrative Law
For the study of any branch of law it is desirable to define and delimit the field of study.
Administrative law, which is the law relating to administration, defies almost any definition
or limitation. The reason for this seems to be that in almost every country irrespective of its
political philosophy, the administrative process has increased so tremendously that today we
are living not in its shade but shadow. A few definitions are, however, being given to clarify
the concept of administrative law:
W.A Robson defines “Administrative law as the law of public administration. Administrative
lawyer abdicates the law of public administration leaving its development almost entirely to
the political scientist.”
Robson does not differentiate between administrative law and the law of public
administration and therefore the definition he attempted is too broad and general.
A.V. Dicey defines “Administrative law as denoting that portion of a nation’s legal system
which determines the legal status and liabilities of all state officials, which defines the rights
and liabilities of private individuals in their dealings with public officials, and which specifies
the procedure by which those rights and liabilities are enforced.”
According to Sir Ivor Jennings, "Administrative Law is the law relating to the administration.
It determines the organization, powers and duties of administrative authorities.
According to Wade and Phillips "Administrative law is a branch of public law which is
concerned with the composition, powers, duties, rights and liabilities of the various organs of
government which are engaged in administration".
According to H.W.R. Wade, “Administrative law is the law relating to the control of
governmental power.” His view is that the primary object of administrative law is to keep the
powers of the government within their legal bounds, so as to protect the citizens against their
abuse.
According to the Indian Law Institute the following two questions must be added to have a
complete idea of present-day administrative law:
(1) What are the procedures followed by administrative authorities?
(2) What are the remedies available to a person affected by administration?
Garner’s Idea of Administrative Law
According to Garner, the subject of Administrative Law includes the study of (i) the
institutions and administrative processes, (ii) the principal sources of governmental legal
powers, (iii) the mechanism by which citizens' grievances in respect of governmental actions
may be examined, and where appropriate redress be afforded, (iv) the public corporations,
and (v) the administration of local government and the general legal principles applying to
local authorities.
Meaning of Administrative Law in Indian Context
According to Justice P.N. Bhagwati (former Chief Justice of India), "Administrative law is
that branch of the law which seeks to ensure observance of the rule of law".
In his words "Rule of law which runs like a golden thread through every provision of the
Constitution and indisputably constitutes one of its basic features, which requires that every
organ of the state must act within the confines of the powers conferred upon it by the
Constitution and law".
Nature and Scope of Administrative Law
Administrative law is concerned with the operation and control of administration, with
emphasis on function rather than on structure. It deals with administrative process and its
control. Due to various reasons, the administrative process has come to stay in all progressive
societies, particularly in a welfare state, where many schemes for the progress of society are
prepared and administered by the government.
(i) Administrative Law Changes Position —administrative law becomes all pervasive legal
discipline. This is so because principles of administrative law emerge and develop whenever
and wherever any person becomes the victim of arbitrary exercise of public power. And the
allegations of arbitrary exercise of power can be raised in almost all areas of substantive law.
Therefore, it will not be incorrect to say that none can specialize in administrative Law.
(ii) Realistic Law —Administrative Law is law but it is not a law in the lawyer's sense like
property law or contract law. It is a law in the realist's sense of term which includes statute
law, administrative rule making, precedents, customs and administrative directions. It also
includes the study of something which may not be termed 'Law' in the true sense of the term
such as administrative circulars, policy statements, memoranda and resolutions.
(iii) Administrative Procedure —Administrative Law is vitally concerned with administrative
process. The administrative process consists of carrying on business of the government, or
regulating the affairs of individuals in the interests of the community. Due to various reasons,
the administrative process has come to stay as an indispensable phenomenon in all
progressive societies, particularly in a welfare state where many schemes for the purposes of
society are prepared and administered by the government.
The emergence of the social welfare concept has affected the democracies very profoundly. It
has led to state activism. There is a phenomenal increase in the area of state operation. A
number of functions which were previously left to private enterprise have been taken over by
the state. It runs buses, railways and postal services. It undertakes planning of social and
economic life of the community with a view to raise the living standards of the people and
reduce concentration of wealth. It grants, refuses and revokes licenses.
The functions of the modern state may broadly be placed into five categories, viz., the State
as protector, provider, entrepreneur, economic controller and arbiter. The ideal of social
welfare state is sought to be translated into reality through State planning of economic
resources and social control of private enterprise with a view to create a socialistic pattern of
society which involves improving the economic conditions of people keeping in view the
demands of social justice. All resources of the community are organized and husbanded with
that end in view.
(iv) Expanding horizons of administrative jurisdiction —As there is unprecedented increase
in state activities, the executive exercises very wide powers. Apart from pure administrative
and executive functions, by way of delegated legislation it exercises legislative functions and
makes a plethora of rules, regulations, bye-laws, notifications, etc. substantially affecting the
rights of the public at large.
(v) Measures of Administrative Law —Measures which are important in administrative law
are—
(i) to check abuse or detriment of administrative power,
(ii) to ensure to citizens an impartial determination of their dispute by officials,
(iii) to protect them from unauthorized encroachment on their rights and interests,
(iv) to make those who exercise public power accountable to the people,
(v) to see that holder of public power, justify their action as legally valid and socially
wise and just, and
(vi) to ensure that public power is not exercised against public interest.
In this way administrative law is a study of the pathology of power in a developing society. It
is a branch of law which is being increasingly developed to control abuse and misuse of
governmental power and to keep the executives and its various instrumentalities and agencies
within the limits of their power.
Reasons for the Growth of Administrative Law/Significance of Administrative Law
Administrative Law is a by-product of an intensive form of functional government. The
reasons for the expansion of administrative law may be various and may operate in a variety
of combinations.
(i) Concept of Welfare State —The rapid growth in administrative law during the twentieth
century owes much to the change in the concepts of the role and function of modern
government. The doctrine of laissez faire has given place to the doctrine of welfare state and
this has led to the proliferation of administrative powers and functions. The growth in the
range of state functions has ushered in an administrative age and an era of administrative law.
The result is that the development of administrative process and administrative law has
become the cornerstone of modern political philosophy.
(ii) Need of the Hour as per Requirement —There is demand by the people that the
government must solve their problems rather than merely define their rights. It is felt that the
right of equality under the Indian Constitution will be sterilized unless the government comes
forward to actively help the weaker sections of the society to bring about equality in reality.
This implies the expansion of administrative process and administrative law.
(iii) Check and Balance Theory —The regulation of the patterns of ownership, production
and distribution is considered the responsibility of any good government to ensure the
maximum good of the maximum number. This again has led to the growth of administrative
process and administrative law.
(iv) Need of Socialistic Pattern of Society —A welfare state has to undertake legislation on
an ever widening front, if the ultimate aim of a socialistic pattern of society operating within
the domain of the rule of law is to be evolved by democratic process. The enormous
legislative output of Parliament and State legislatures calls for trained personnel to implement
them. It is, therefore, that there is a need for the growth of administration and law regulating
administration.
(v) Lacuna in the System —The inadequacy of the traditional type of judicial system to give
that quality and quantity of performance which is required in the twentieth century for the
functioning of welfare and functional government is the biggest single factor which has led to
the growth of administrative process and law.
(vi) Difficult Legislative Process —The legislative process is also inadequate.
Administrative action has been called upon to fill in the substance of legislation where it is
impossible for the legislature to lay down detailed rules in advance. Even when detailed
provisions were made by the legislature, they were found to be defective and inadequate e.g.,
rate fixing, licensing etc. Under these circumstances, it was felt indispensable to delegate
some powers to the administrative authorities. There is, therefore, inevitable growth of the
administrative legislative process.
(vii) Scope of Change as per Need —Legislation is rigid in character while administrative
process is flexible. In the administrative process, there is scope for experimentation. Here,
unlike legislation, it is not necessary to continue a rule until commencement of the next
session of the legislature.
(viii) Simplicity of Administrative Agencies —Administrative agencies can avoid
technicalities. Administrative process represents a functional rather than a theoretical and
legalistic approach. The traditional judiciary is conservative, rigid and technical. (ix)
Preventive in Nature —Administrative agencies can take preventive measures e.g.,
licensing, rate fixing etc. Unlike ordinary courts of law, they need not to wait for the parties
to come before them with disputes. In many cases these preventive actions may prove to be
more effective and useful than punishing a person after he has committed a breach of any
provision of law and society has suffered the loss.
Conclusion
There are thus numerous factors responsible for the growth of administration and law which
are the all-pervading features of government today. No list of howsoever, lengthy it may be,
can be complete and exhaustive. Nevertheless, functional government is the main force
behind the growth of administrative law in access. Thank you.
Theory of Droit Administratif and Conseil d'Etat
Meaning of Droit Administratif
Droit Administratif is a branch of law which determines the organisation,
powers, and dutiesofpublicadministration.AccordingtoDicey,DroitAdministratif
is that portion of French Law which determines:
a) The position and liabilities of state officials;
b) The civil rights and liabilities of private individuals in their dealings with
officials as representatives of the state; and
c) The procedure by which these rights and liabilities are enforced.
d) Dual Judicature in France: Civil and Administrative Courts. —Under the
French Legal System, known as Droit Administratif, there are two types of
lawsandtwosetsofCourtsindependentfromeachother.Theordinarycourts
administer the ordinary civil law as between subjects and subjects. The
administrative courts administerthelawasbetweensubjectandthestate.An
administrativeauthorityorofficialisnotsubjecttothejurisdictionofordinary
civil courtsexercisingpowersunderthecivillawindisputesarisingbetween
the private individuals. All claims and disputes in which administrative
authorities or officials are parties do not come within the scope of the
jurisdiction of ordinary courts and they are to be dealt with and decided by
administrative tribunals headed by Conseil d' Etat.
Droit Administratifisaveryoldsystem.Itwasregularlyputintopracticeby
Napoleoninthe18thcentury.Napoleonfavouredfreedomfortheadministrationand
alsofavouredreforms.Hewantedaninstitutiontogiverelieftothepeopleagainstthe
excesses of administration. It was therefore, that in 1799 Conseil d'Etat was
established. The main aim of such an institution was to resolve difficulties which
might arise in the cause of the administration. But with change in time, it started
exercisingjudicialpowersinmattersinvolvingadministration.Thepositionisthatin
all matters involving administration the jurisdiction of Conseil d' Etat is final. It
receives direct complaints from the citizens.
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Merits of the System
InFrancetheorganofthereviewofadministrativedecisionsisitselfapartof
the administration, as the work is undertaken by the Conseil d' Etat, assisted since
1954bythelocaladministrativeCourts.2 Inspiteof,orbecauseof3 thisintimatelink
between the supervising or reviewing tribunals and the administration, the onus of
proof in the French system is always on the administration. The administrative
agencies must be prepared to justifytheiracts."Paradoxically"observedRidleyand
Blondel, "it (Conseil d' Etat) was able to scrutinise administrative decisions more
thoroughly than the ordinary courts ever had done".
The Composition and Working of Conseil d'Etat
Conseil d' Etat consists of a body of men who are on the one side the
confidential advisors of the government and on the other decide the cases of the
subjectsagainsttheadministration.Inthelattercase,theyactasuncommittedjudges
and if necessary, condemn the executive act. This paradox has made the Conseil d'
Etat, an efficacious institution in France.
If there is conflict between theordinarycourtsandtheadministrativeCourts
regarding jurisdiction the matter is decided by the Tribunal in conflict. This is a
special tribunal which consists of an equal number of ordinary and administrative
judges. It is presided over by the minister of justice.
The main functions of the Conseil d'Etat from the beginning were planning
andadvising.Itadvisesandplansexecutivebusiness.Thedifficultieswhichoccurin
the course of administration are resolved by the Conseil d' Etat.
Factors which have successfully subjected the administration in France to the
Rule of Law through Droit Administratif with Conseil d'Etat at the apex are
following:
(1) The composition and function of the Conseil d' Etat itself;
(2) The flexibility of its case law;
(3) The simplicity of remedies available before the administrative courts;
(4) The special procedure evolved by those courts; and
(5) The character of the substantive law which they apply.
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Rules of Droit Administratif in France, Droit Administratif consists of rules
developedbythejudgesofadministrativecourts.Therearethreeseriesofrules
included in Droit Administratif:
(1) Rules relating to administrative authorities and official appointment,
dismissal, status, salary and duties etc.
(2) Rules relating totheoperationofpublicservicestomeettheneedsof
citizens.
(3) Rules relating to administrative adjudication—if any injury is caused
toaprivatecitizenbytheadministration,thematterhastobedecided
bytheadministrativecourts.Conseil"Etatisthehighestadministrative
Court, whose decision is final.
Characteristic Features of Droit Administratif —The following are the
characteristic features of the Droit Administratif in France:
(1) Matters concerning state and administrative litigation fall within the
jurisdiction of administrative Courts and cannot be decided by the
ordinary courts of the land.
(2) In deciding matters concerning the stateandadministrativelitigation,
rules as developed by the administrative courts are applied.
(3) If there is conflict of jurisdiction between ordinary courts and
administrative court, it is decided by the Tribunal des conflicts.
(4) Conseil d’Etat is the supreme administrative court.
Basic Principles of Droit Administratif:
The power of administration to act ‘suo motu’andtoimposedirectlyonthe
subject the duty to obey its decision.
Thepowerofadministrationtotakedecisionsandtoexecutethem‘suomotu’
maybeexercisedonlywithinthescopeofthelawwhichprotectsindividualliberties
against administrative arbitrariness.
The existence of a specialised administrative jurisdiction; One speaks of
administrativejurisdictionbecausetheirdecisionrelatestothesuperiorcontrolofthe
Conseil d’Etat either by means of appeal.
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This is a principle laid down bytheConseild’Etatthatformsadministrative
decisions.ThereisarightofappealtotheConseild’Etatevenwherethelawissilent
or if it provides that the tribunals are the final authority.
One good result of this is that an independent body reviews every
administrative action. The Conseil d’Etat composed of eminent civil servants deals
with a variety of matters like claim for damages for wrongful acts of government
servants, income tax, pensions disputed elections, personal claims of civil servants
against the state for wrongful dismissal or suspension and so on.
Similarities Between the English Rule of Law and Droit Administratif of France:
TheDroitAdministratifofFranceresembles(haveasimilarityto)theEnglish
rule of law, because both are the result of ‘Case law’ or judge made law.
The Conseil d’Etat of France has been converted from an executive into a
judicial or quasi-judicial body by thegradual(notrapid)processofitsjudicialfrom
and its executive function. In England, the judicial system has grown as aresultof
transfer to parts of the King’s council ofjudicialpowersoriginallyexercisedbythe
‘King-in-council.However,theparliamentdestroyedthearbitraryauthorityofcourts
like the Star Chamber and of the council. In France, Droit Administratif and
administrative tribunals were not only tolerated (sustain) but progressively thrived
(prosper) and have come to stay.
InEngland,thecrownanditsservantsweresomethingbeyondandabovethe
ordinary law. Such a concept of administration thrived in France.
Differences Between the English Rule of Law and Droit Administration
The following points of differences have been mentioned:
Droit Administratif is not the law of a class and it is a distinct body oflaw
which may affect anddoesaffecttherightsofFrenchcitizens.InEngland,thereare
laws, customs or regulations which determine the positions of civil servants of the
Head of theState.Theselaws,customsandregulationsconstitutethelawofaclass.
The powers exercisable by the civil servants under these laws, customs and
regulations must be exercised in accordance with ordinary common law principle.
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If an official in England exceeds (be more) the authority given to him, he
incurs (suffer) the common law responsibility for his wrongful act and he can not
plead in his defence strict obedience to official orders and he becomes amenable
(responsibletolaw)totheauthorityofordinarycourtsforthetorthehascommitted.
But in France the government and its servants exercise wide discretionary powers
which are not under the control ofanycourt.Theexecutiveoritsservantcannotbe
made amenable to the jurisdiction of any tribunal for an act of the state.
Reasons of Success of Droit Administratif:
Droit Administratif has been quite successful in subjecting the rule of law. This
success may be attributed to a combination of the following factors:
-The composition and functions of the Droit Administratif itself.
-The flexibility of its ‘case law’.
-The simplicity of the remedies available before the administrative courts.
-The special procedure evaluated (natural process) by those courts.
-The character of the substantive law which they apply.
Adoption and Working of Droit Administratif in India
AdministrativelawwasinexistenceinIndiaeveninancienttimes.Underthe
Mauryas and Guptas, several centuries before Christ, it was well organised and
centralised. The rule of Dharma was observed by the kings and administrators and
nobodyclaimedanyexemptionfromit.Thebasicprinciplesofnaturaljusticeandfair
playwerefollowedbythekingsandofficersastheadministrationcouldberunonly
onthoseprinciplesacceptedbyDharma,whichwasanevenwiderwordthan‘Ruleof
Law’ or ‘Due process of Law’. Yet, there wasnoadministrativelawinexistencein
the modernsense.WiththeestablishmentoftheEastIndiaCompanyandtheadvent
oftheBritishRuleinIndia,thepowersofthegovernmenthadincreased.ManyActs,
statutes and legislations were passed by the British government, regulating public
safety, health, morality, transport and labour relations. The practice of granting
administrative licences began with the State Carriage Act, 1861. The first public
corporation was established under the Bombay Port Trust Act, 1879. Delegated
legislationwasacceptedbytheNorthernIndiaCanalandDrainageAct,1873andthe
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Opium Act, 1878. Proper and effective steps were taken to regulate the trade and
trafficinexplosivesbytheIndianExplosivesAct,1884.Inmanystatutes,provisions
were made regarding holding of permits and licences and for the settlement of
disputes by the administrative authorities and tribunals. In the twentieth century,
social and economic policies of the government had significant impact on private
rights of citizens; e.g., housing, employment, planning, education, health, service,
pension, manufacture of goods, etc.Traditionallegislativeandjudicialsystemcould
not effectivelysolvetheseproblems.Itresultedintoincreaseindelegatedlegislation
aswellastribunalisation.Administrativelawthusbecamealivingsubject.Duringthe
Second World War, the executive powers tremendously increased. The Defence of
India Act, 1939 and the Rules made there under conferred ample powers on the
executive to interferewithlife,libertyandpropertyofanindividualwithlittleorno
judicialcontroloverthem.Inadditiontothis,thegovernmentissuedmanyordersand
ordinances covering several matters by way of administrative instructions. Since
Independence, the activities and the functions of the government have further
increased. Under the Industrial Disputes Act,1947,theMinimumWagesAct,1948,
the Factories Act, 1948 and the Employees’ State Insurance Act, 1948, important
social security measures have been taken for those employed in industries. The
philosophy of a welfare state has been specifically embodied in the Constitution of
India. In the constitution itself provisions are made to secure to all citizens social,
economicandpoliticaljustice,equalityofstatusandopportunity.Theownershipand
control of material resources of the society.
Merits of Droit Administratif
DroitAdministratifwasabletoprovideexpeditiousandinexpensivereliefand
better protection to the citizens against administrative acts or omissions by the
common legal system. The following are the advantages of Droit Administratif: -
(i)Flexibility-Administrativeadjudicationisnotrestrainedbyrigidrulesofprocedure
and jargons of judiciary. It can remain in tune with varying phases of social and
economic life.
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(ii) Adequate Justice- Administrative adjudication is the most effective way for
providingfairjusticetotheindividuals.Theneedofmodernwelfaresocietycannotbe
adequately considered in ordinary law because of the concern about aspects of law.
(iii) Less Expensive- Administrative justice ensures cheap & quick justice. The
procedure of ordinary law is cumbersome and litigation may be costly which may
include court fees, hefty fees for engaging lawyers and incidental charges.
(iv)Thesystemalsoprovidesrelieftocourts,whichareotherwiseoverburdenedwith
ordinary suits.
Demerits of Droit Administratif
In the views of Dicey, there was no Rule of Law in France due to Droit
Administratif. The Govt.anditsofficialsareprerogativeagainsttheprivatecitizens.
Theyhavespecialrightsandprivileges.Theserightsandprivilegesaredeterminedon
theprinciplesdifferentfromtheconsiderationthatfixesthelegalrightsanddutiesof
the ordinary citizens. The Govt. Officials are also free from the jurisdiction of
ordinary courts. Also, since the administrative courts are not ordinary legal courts,
lack of legal expertise was pointed out as another demerit. Since many of the
members of the administrative courts were civil servants with little or no legal
background, they may lack requisite legal expertise to adjudicate disputes. Since
many of the members of the administrative court are the same as that of Govt.
officials, Partiality was considered as another demerit of the system. Also, the
transferringofpowerofadjudicationtoadministrativecourtsfromordinarycourtsis
considered by some jurists as violation of separation of powers and rule of law.
Conclusion
IftheDroitAdministratifdidnotadequatelyprotecttheindividualsasagainst
thestate,itwouldbeaseriouscriticism,butitwasnotso.Thefactisthatthissystem
was able to provide expeditious and in-expensive relief and better protection to the
citizens against administrative acts or omissions than the common law system. The
early common criticism of Droit Administratif was thatitcannotprotecttheprivate
citizenfromtheexcessesoftheadministration.However,laterresearcheshaveshown
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that no single institution had done so much for the protection of private citizens
against the excesses of administration as has been done by the Conseil d' Etat.
IntheenditmaybeconcludedthatthestudyofAdministrativeLawisofgreat
importanceineverycountryoftheworld.AsregardsIndia,itisofgreatsignificance
because of the proclaimed objectives of the Indian polity to build up a socialistic
pattern of society. The objective of establishing a socialistic society has generated
administrative process and hence administrative lawatalargescale.Administration
in India is bound to expand further and at a quick pace. A strong drive for rapid
expansion has its own dangers. A developing country like India where the roots of
democracy are not deep, a strong bureaucracy may have the tendency to ride
rough-shod over the rights of people. If exercised properly, the vast powers of the
administrationmayleadtothewelfarestate;ifabusedtheymayleadtoadministrative
despotism and a totalitarian state. The study anddevelopmentofadministrativelaw
becomes inevitable as administrative law is an instrument of the control of
administrative operation of the government interested in social welfare.
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Relationship Between Constitutional Law and Administrative Law
Introduction
While delimiting the subject a question is sometimes asked whether there is any
between constitutional law and administrative law. There are two schools in this
respect. According to one, there is no difference between the two, whereas to the
other, there is a difference between them.
First Opinion
According to the writers there is no difference between constitutional law and
administrative law. Recently, the subject of administrative law was dealt with and
discussedintheareasofconstitutionallawandnoseparateandindependenttreatment
wasgiventoit.So,administrativelawwasincludedinconstitutionallaw.Therefore,
Keith observed:
Itislogicallyimpossibletodistinguishadministrativelawfromconstitutionallawand
all attempts to do so are artificial".
Second Opinion
Thoughconstitutionallawdoesnotdifferfromadministrativelawinasmuchasboth
function with the government,andbothareapartofpubliclawinthemodernstate.
However, a distinction between the two. According to Holland, “the constitutional
lawdescribesthevariousorgansofgovernmentatrest,whileadministrativelawthem
in motion.”
According to this view, the structure of legislation and executive comes within the
sphere of constitutional law. While their functioning comes under the purview of
administrative law. F.W. Maitland is, however, not a supporter of this view. In that
case, powers and prerogatives would be relegated to administrative law. Maitland’s
view is that while constitutional law deals with structure and the broader rules that
regulate the functions. The details of the functions are left to administrative law.
According to O.H. Phillips, constitutional law concerned with the organization and
functions of government at restandwhilstadministrativelawisconcernedwiththat
organizationandthosefunctionsinmotion.Robson,ontheotherhand,pointsoutthat
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whilst constitutional law emphasizes individual rights,administrativelawlaysequal
stress on public needs.
The relationship between constitutional law and administrative law is not very
emboldened to beseenwithnakedeyesbutthefactremainsthatconcomitantpoints
are neither so blurred that one has to look through the services of the texts with a
magnifier to locate the relationship. The aforementioned veracities and illustrations
provide cogent evidence to establish an essential relationship between the
fundamentals of both the concepts. If doubts still persist, the very fact that each
author, without the exception of a single, tends to differentiate between the two
branches of law commands which create the hypothecation of a huge overlap.
Sometimes, a question is asked as to whether there can be any distinction between
constitutionallawandadministrativelaw.Untilrecently,thesubjectofadministrative
law was dealt with and discussed inthebooksofconstitutionallawandnoseparate
andindependenttreatmentwasgiventoit.Inmanydefinitionsofadministrativelaw,
it was included in constitutional law. Though in essenceconstitutionallawdoesnot
differ from administrative lawinasmuchasbothareconcernedwithfunctionsofthe
Government and both areapartofpubliclawinthemodernStateandthesourceof
both are the same, yet there is a distinction between the two.
Line of Difference between Constitutional Law and Administrative Law
In the opinion of English authors, the distinction between constitutional law and
administrativelawisoneofdegree,convenienceandcustomratherthanthatoflogic
and principle. It is not essential and fundamental in character. According to
Benjafield and Whitmore “the dividing line between constitutional law and
administrativelawisamatterofconveniencebecauseeverystudentofadministrative
law has to study some constitutional law.”
Prof. Wade writes: With the exercise of Governmental power, administrative lawis
itself a part of constitutional law. It has now become an independent branch of study.
Prof.DiceyrepudiateditsexistenceintheUnitedKingdomandhisviewcontinuedto
occupy the minds of thinking persons till the advent of the report of committee on
ministers. He misunderstood "Droit Administratif", which he identified with
2
administrativelaw.Accordingtohim,sincetherewasnodualsystemofJudiciaryin
Great Britain, there is nothing like the term ‘Administrative Law’ in England.
TheviewsofAustin,towhomconstitutionallawmerelydeterminedwhatpersonsor
classesofpersonsborethesovereignpowerswhileadministrativelawdeterminedthe
endsandmodestoandinwhichsovereignpowerswereexercised,arenotcompletein
full sense, because he dealt with Constitutional Law in a very narrow sense.
In this regard, Maitland said, "I think we catch his idea if we say that while
constitutional law deals with structure, administrative law deals with functions".
Thus,accordingtotheviewofthesewriters,administrativelawandconstitutionallaw
both deal with the same subject. Although there is much similarity in the
subject-matter of the two laws as the definition of administrative law by Jennings
clearly indicates, yet the tremendous growth in the scope of administrative law has
separated it from constitutional law.
Constitutional law and administrative law are interrelated. Whileadministrativelaw
deals with the organizations, powers, functions, and duties of administrative
authorities, the constitutional law deals with the general principles relating to these
organizations and their powers and the relationship of these organs with the
individuals.
Therehasalwaysbeenacomplicatedrelationshipbetweenboththelaws.Indiahasa
written Constitution and prevalence of a concept called Judicial Review thereby,
makes it very difficult to separate both the laws. There is no watertight relation
between the two and hence, this imposes a burden on scholars and jurists to read
betweenthelines.Constitutionallawisthemotherofadministrativelawwhereinboth
are public laws and cannot exist without each other. For Ivor Jennings, general
principles relating toorganization,itspowersandpowersofotherorgansalongwith
their mutual relationships is the subject matter of constitutional law whereas the
premise of administrative law deals with organization, its functions and powers of
administrativeauthorities.JohnLockehadaclearerstanceonthesameashepointed
out that an individual can do anything but what is forbidden by lawwhilethestate
maydonothingbutwhatisauthorizedbylaw.AccordingtoFox,administrativelaw
reflectsthelawrelatingtopublicadministration.Itisconcernedwiththelegalforms
and constitutional status of public authoritieswiththeirpowersandduties,andwith
3
the procedures followed in exercising them, with their legal relationship, with
one-another, with the public, with their employees which seek, in varied ways, to
control their activities.
Thedoctrineofwatershadeshelpstoestablishalineofdistinctionindicatingproper
boundariesforapplicationoflaws.DiceyandHollandattemptedtodefinethisideaas
a relationship between both the laws. However, many jurists feel that thereexistsa
gray area between the two laws.
Position under Written Constitution
InIndiaAdministrativeLawhasnotgrownupfully.Itisinitsinfancy.Before1947,
our country was a police state. With the adventofIndependence,aconsciouseffort
started towards the achievement of a welfare State. There are several principles,
which are derived from the constitutional law, and they constitute the fundamental
basisofAdministrativeLaw.Infact,amongthevarioussourcesofadministrativelaw,
the Constitution stands foremost besides the statutes, statutory instruments and
precedents.
OurConstitutionitselfenvisagesafewadministrativebodiesmainlyfromthepointof
view of Interstate co-operation and co-ordination and to solve Inter-Stateproblems.
ExamplesaretheInter-StateCouncil,theFinanceCommission,UnionPublicService
Commission and the Election Commission.Besidesthis,wehaveseveralprovisions
in the Constitution relating to control on the administrative powers.
In the countries which have written Constitutions the distinction between
constitutional law and administrative law is not so much blurred as in England. In
suchcountriestheConstitutionisthesourceofconstitutionallawwhileConstitution,
statutes, statutory instruments, precedents and customs may be the source of
administrative law. Administrative law has become morearticulateanddefiniteasa
systemindemocraticcountrieswhichhavewrittentheConstitution.Ithascometobe
recognisedasabranchofpubliclawbyitselfdistinctandseparatefromconstitutional
law.
Position in India
4
India has a written Constitution which is the grundnorm of the legal system in the
country.Itconditionsandoverridesalllegislativeandadministrativeaction.Thefact,
however,remainsthatadministrativelawhasbecometodaysuijurisandisrecognised
asaseparate,independentbranchofthelegaldisciplinethoughattimesconstitutional
law and administrative law may overlap.
As regards the relationship between constitutional law and administrative law, the
correctpositionmaybesaidtobethatifonedrawstwocirclesofadministrativelaw
and constitutional law, at a certain place they may overlap and this area may be
characterized as the 'watershed' in administrative law.
Moreover,theconstitutionallimitationsondelegationofpowerstotheadministrative
authoritiesandconstitutionalprovisionsrelatingtoFundamentalRightswhichimpose
fetters on administrative action are also included in the watershed
There is an important distinction between English Administrative Law and Indian
AdministrativeLaw.WhileinEngland,anadministrativeactioncanbechallengedas
ultraviresthestatuteunderwhichitwasperformed,inIndia,itcanbechallengedas
ultravirestheConstitutionaswell.InIndia,anadministrativeactionhastomeetfour
tests:
(i) The action must have been taken in accordance with the Rules and
Regulations;
(ii) The Rules and Regulations must conform to the relevant statute i.e.,
the Parent Act;
(iii) The action, the Rules and Regulations and the Parent Act must
conform to the constitutional pattern; and
(iv) Ifithappenstobeaconstitutionalamendment,suchamendmentmust
be in conformity with the basic structure of the Constitution.
ThegrowthofAdministrativeLawwastheoutcomeofthegrowingandchangingrole
ofthestateanditspeople.InacountrylikeIndia,theexpectationsofpeoplearevery
high,becausethegovernmentperformsfunctionsofnotonlyfacilitatorbutregulator
too.Theroleisnotlimitedtoexternalaggressionbutinvolvesinternalonealso.The
distribution of limited resources requires good governance.
The constitutional law is the supreme law ofthelandwhereasadministrativelawis
subordinatetoit.Hence,theformerisgenusandlatterisitsspecie.Constitutionallaw
5
reflects provisions with respect to all laws and theirrelationswithstateandcitizen,
however, the latter deals with working of state and its various functions to be
performed. Therefore, thereliesaneedforseparatedisciplinetocontrolandprevent
thearbitraryactionofadministrativeauthoritiesandgiveprotectiontotherightsofan
individual and thereby public as a whole.
ThecourtinStateofBombayvBombayEducationSocietyheldthatExecutiveaction
established in India is protected through various ways. Consider an example of
subordinate legislation which is considered within the meaning of Article13which
includesbye-lawsregulationsetc.butifitisultraviresoftheConstitutionthenitcan
bestruckdownasheldinChandrakantKrishnaraoPradhanv.JasjitSingh.Thecourt
inRashidAhmedvMunicipalBoard,Kairanaheldthatanyadministrativeactionwith
no statutory basis can be held void and therefore, the court has power to declare it
void if any administrative policy or action violates the Constitution.
The court in A.R. Antulay v. R.S. Nayak heldthatanyaspectofadministrativelaw
does not differentiate between both the laws. The aspects are so broad to include
varioussubstantiveaspectslikepublichealth,educationetc.Since,theConstitutional
Lawreflectssuchideasforpublicwelfareatlargeandhence,administrativelawdeals
withthemtofurtherhelpinimplementation.Constitutionallawhaspowertomonitor
the three branches of the government and set a benchmark to the extent in which
policies, rules andregulationscanbeformulatedassubstantiatedinSunilBatraIIv.
Delhi Administration.
Therefore, it cannot be denied that constitutional law plays averyimportantrolein
establishing guidelines, rules, principles and helps in broadening the scope of
Administrative Law. The relationship between constitutional law andadministrative
law, however, sometimes overlaps but is very instrumental in many cases.
Evolution of Constitutional Law and Administrative Law in India
Administrative law was alive even in ancient times. Thehistoryofthesamecanbe
traced back to the Mauryas and Guptas who have a well-organized and centralized
administration.
TheruleofDharmawasinaction.Everymanofthemonarchobservedthisruleand
nooneclaimedimmunity.Itwassaidthattheadministrationcouldonlyberunonthe
6
principles accepted by dharma and thus was followed by thekingsandhisofficers.
Principles suchasnaturaljusticeandfairnesswerefewofthepowerswhichwerein
the ambit of dharma.
Differences between Constitutional Law and Administrative Law
Administrative law differs from constitutional law in various ways:
1.Constitutionallawrelatestostructureofgovernment,thatis,involvingthestudyof
the entire federal system of government consisting of the federal and states, their
scope and limitations, powers of the legislative houses, the executive powers etc.
While on the other hand, the studyofadministrativelawrelatestopower,functions
and the operation of administrative authorities.
2.Constitutionallawiswiderinscope.Forexample,itrelatestocitizens,legislatures,
and human rights. While on the other hand, administrative law is narrower.
3. Constitutional law relates toorganizationalstructuresatrest,whileadministrative
law relates to the organizational structure in motion. This involves the various
constitutional provisions setting out the organs of government and the organs
themselves. On the other hand, administrative law explains how these organs operate.
4.Theprovisionsofconstitutionallawaremostlyknown,andareclearlystipulatedin
theconstitution,whileprovisionsofadministrativelawarenotclearlyknownbecause
they are not codified in a single document like the constitution.
5. Administrative law relates to confining administrative bodies to their legal roles
and limits, while constitutional law relates to establishing the administrative body.
6. Sources of constitutional law are mostly found in constitutions, international
conventions, statutes and Judicial decisions, while those of administrative law are
found through delegated legislations, letters of instruction, memoranda, treasury
circulars and decisions of administrative bodies.
Conclusion
In conclusion, itmustbenotedthat,irrespectiveofthesedifferences,therearesome
areas of overlap, and this may be so because both constitutional andadministrative
law relate to public law. The range of judicial review recognised in the superior
judiciaryinIndiaisperhapsthewidestandmostextensiveknowntotheworldoflaw.
7
The power extends to examining the validity of even an amendment to the
Constitution, for now it has been repeatedly held that no constitutional amendment
canbesustainedwhichviolatesthebasicstructureoftheConstitution.Theinevitable
and speedier growth of powers of the administration underthegarbofsocialization
have resulted in outstanding legal development of the twentieth century taking its
force from constitutional law. Administrative law is very much related to
constitutional law. It owes much to constitutional law, in spite of the fact that the
formerhasdevelopedasanindependentbranchofstudy.Inmanywaysconstitutional
law is the determining factor of administrative law.
8
Development of Administrative Law in India, USA and UK
Evolution of Administrative Law
With the arrival of the British inIndiaandtheeventofBritishRuleinIndia
there was the advent of modern administrative law. Establishment of theEastIndia
Company increased the powers of government. Many Acts,statutesandLegislation
were brought and passed by the British governmentregulatingpublicsafety,health,
morality, transport and labourrelations.Practiceofpermittingadministrativelicence
began with the State Carriage Act 1861.
Insights on Development of Administrative Law in India
Welfare of State
The philosophy of welfare of the state is well embodied in the Indian
constitution. Post-independence, India adopted a welfare state approach, which
successivelyincreasedstateactivities.Inlinewiththedoctrinethebasicobjectiveof
theStateAdministrationistoattainmaximumwelfareforthemasses.Allthepolicies
of the state should aim at maximising the welfare of the people. With increase in
powerandactivityoftheGovernmentandadministrativeauthorities,thenecessityfor
Rule of LawandJudicialReviewofStateactionsalsoincreased.IntheConstitution
itself, provisions were madetosecurecitizenssocial,economicandpoliticaljustice,
equalityofstatusandopportunity.Theownershipandcontrolofmaterialresourcesof
the society should be so allocated as best to sub-serve the common good.
Indian Scenario
Historical Retrospect—Rule of Dharma —Administration and administrative law
aretheall-pervadingfeaturesofgovernmenttoday,andatthesametimetheyaremost
ancient.AdministrativeLawwasinexistenceinIndiaeveninancienttimes.InIndia,
the history of administrative law can betracedtothewellorganisedandcentralised
administration under the Mauryas and Guptas, several centuries before Christ.The
rule of Dharma was in action. The kings and administrators observed the rule of
Dharma and none claimed any exemption from it. The fundamental principles of
natural justice and fairness were followed by the kings and officers as the
1
administration could be run on those principles which were accepted by Dharma.
ConceptofDharmawasevenwiderthan'RuleofLaw'or"DueProcessoflaw".Yet,
therewasnoadministrativelawinexistenceinthesenseinwhichwestudyittoday.
There wasnomachinerytoenforcetheruleofDharmasofarasappliedtotheking.
However, it was the moral duty of the king to abide by the rule of Dharma.
Establishment of EastIndiaCompanyandtheadventofBritishRule—Expansionof
Administrative Process —With the establishment of East India Company and the
advent of the British Rule in India, the powers ofgovernmenthadincreased.Many
Acts, statutes and legislations were passed by the British Government. The ruling
foreign power was primarily interested in strengthening its own domination; the
administrative machinery was used mainly with that end in view and civil service
came to be designed as the "Steel frame."
Before 1947 India was apolicestate.Thegovernmentwasconcernedwiththemost
primary duties only and the functions of the welfare state were not discharged. A
general account of the growth of administrative process is being given as follows:
Administrative Process in India
Growth and DevelopmentofAdministrativeProcessinIndiafrom18th Century
onward
(a) Public Safety —In this area, the government regulation generally took the
form of prohibiting the carrying of a particular activity without a licence or
permission. Licensing Acts in this field are The Sarais Act, 1867, The Arms Act,
1878,TheIndianExplosivesAct,1884,TheIndianPetroleumAct,1899,TheBoilers
Act, 1923.
(b) Public Health —As regards public health,itwaslargelyaneglectedsubject
during the British administration. The Acts which were passed relating to public
health are the Opium Act, 1878, the Dangerous Drugs Act, 1930, the Epidemic
Diseases Act, 1897, the Indian Medical Council Act, 1933.
—In connection with public morality two Acts were passed:
(i) Dramatic Public Performance Act 1876, and
(ii) The Cinematograph Act, 1918.
2
(c) Transport—Thegovernmentregulationoftransportwasmainlyfromthepoint
of view of general security. As regards railways and tramways, some further
regulationswerenecessitatedbecauseoftheirbeingpublicutilityservices.Important
ActsinthisareaaretheStageCarriagesAct,1861,theIndianRailwaysAct,1890,the
Motor Vehicles Act, 1914, the Indian Merchant Shipping Act, 1923 and the Motor
Vehicles Act, 1939.
(d) Labour —A number of Acts werepassedinthisareabuttheirpurposewasnot
labour welfare. The notable Acts are: (i) Employers and Workmen Disputes Act,
1860,theMinesAct,1923,theWorkmen'sCompensationAct,1923,theIndianTrade
Disputes Act, 1929, the Factories Act, 1934 and the Payment of Wages Act, 1936.
(e) Economic Regulation —Since the British Governmentwasnotmuchinterested
intheeconomicdevelopmentofIndia,exceptinsofarasitbenefitedEnglandorher
industries,theregulationspertainingtotheeconomiclifeofIndiawereveryfew.The
Acts providing for economic regulation are:
(i) The Companies Act, 1850
(ii) The Companies Act, 1913
(iii) The Cotton Transport Act, 1923
(iv) The Tea Control Act, 1934
(v) The Rubber Control Act, 1934
(vi) The Reserve Bank of India Act, 1934.
National Safety — Due to the Second World War the problem of national safety
came before the executive. During the war the executive assumed vast powers.
Numerousadministrativeagencieswereestablishedtofacethesituationarisingfrom
war. Relevant Acts are the Defence of India Act, 1939, the Essential Supplies
(Temporary Powers) Act, 1946, the Import and Export (Control) Act, 1947 andthe
Foreign Exchange Regulation Act, 1947 and after that following aspects ofthelaw
emerged—
Socialisation of Law —India became free in 1947. The government assumed new
responsibilities of varied sorts with a view to create a social service state. The
implementation of a vast programme of economic and social reconstruction, with a
viewtopromotethewelfareofthepeoplehasresultedinsocialisationoflawandina
tremendousgrowthofadministrativeprocess.Forthepromotionofgeneralwelfare,a
3
large number of socio-economic legislations were passed. Welfare state came to be
established.
Growth and Development of Administrative Process in India during the Mid -
20th Century
Socio-economic Philosophy of the Constitution—IntheConstitutionofIndia,the
idealsofsocio-economicphilosophyhavebeenembodied.Accordingly,thestatehas
beendirectedtofollowtheprinciplesofsocio-economicjusticeinthegovernanceof
the country and in making laws. Further direction to the state is to directitspolicy
towards securing that the ownership and control of the material resources of the
communityaresodistributedasbesttoservethecommongoodandthattheoperation
of the economic system does not resultintheconcentrationofwealthandmeansof
production to the common detriment.
Socio-economicLegislation—WiththeviewtorealisetheideaofEconomicjustice,
a large number of socio-economic enactments have been enacted.
(i) Industries (Development and Regulation) Act, 1951
(ii) Essential Commodities Act, 1955 and
(iii) Monopolies and Restrictive Trade Practices Act, 1969.
SocialisticPatternofSociety—Amajorareaofpost-independentoperationhasbeen
the regulation of the economic sector. This is the feeling that political democracy
wouldnotmeanmuchinpooreconomicconditionsifthepeoplewerenottoimprove.
Withthisendinviewthecountryhasacceptedtheidealsocialisticpatternofsociety
whichenvisageseconomicdevelopmentwithsocialjustice.TheIndustrialResolution
of 1956 was passed with a view to create a socialistic pattern of society.
Growth and Development of Administrative Process during the End of 20th
Century
Between 1970 to 1990, India passed through aperiodofpoliticalupheavals.
The rhetoric of ‘Garibi Hatao’ and similar slogans dominatedthepoliticalscenario.
The emergency of 1975-77 eclipsed the democratic process. The original selective
approach to nationalisation was given up and the public sector became a source of
political patronage and power. Most of them, with notable exceptions, performed
poorly. The original ideology which had encouraged initial strategyofdevelopment
4
seemed to go inverse gear and political expediency became more prominent.
Consequently, both development and democracy suffered. There are seen today
increasing lawlessness among those who govern and also those who are governed.
The rule of law is in great danger.
Growth of Administrative Process during 21st Century
Nationalisation of the public sector being at the commanding heights of
economy isnotapanaceaforsocialjusticeorequitabledevelopment.Itisnecessary
to examine the public sector from strictly utilitarian criteria. Some public sector
enterprises have been found to be extremelysuccessful.Eventodaydespitealltheir
lapses, the Post and Railways have rendered very valuable services. These two
services can be cited as examples of good public enterprises. Similarly, the Life
InsuranceCorporationorGeneralInsuranceCorporationareexamplesofgoodpublic
enterprises. Corruption of politicians, civil servants and government contractorshas
plagued the country for the last few decades. The strong public sectorhelpedIndia
build a strong industrial base and economy demanded a change of development
strategy. Accordingly, since 1991 a major shift cameinthestrategyofdevelopment
throwing open certain areas of services and manufacture, which were exclusively
under public ownership to private enterprise. Such a change has come under a
package called liberalisation which does notmeanabdicationofitsfunctionsbythe
state.Itmeansregulationoftheeconomyinpublicinterest.Suchregulationprotected
the investors, consumers, environment and also the democratic process. Private
enterpriseisnowallowedinareas,suchaspower,telecom,insurance,bankingandair
travel. The state has to be accountable to the people. Whether the state controls or
regulatesithastoexercisepoweraccordingtolaw.TheprovisionsoftheMonopolies
and Restrictive Trade Practices Act, 1969 concerning monopolies have now been
repealed and a new Act called the Competition Act, 2002 has been passed. While
Monopolies and Restrictive Trade Practices Act, 1969 aimed at not allowing any
industry to grow beyond a stipulated size so as to be a monopoly, the Competition
Act, 2002 ensures fair competition among different economic players on a level
playing field. TheConsumerProtectionAct,1986givesexpeditiousandeconomical
remedies to the consumer against the manufacturer, trader or service provider.
5
In the wake of the General Agreement on Trade and Tariff (GATT) which
India has signed, new patent legislation will soon be enacted and greater policing
against breach of copyright will become necessary. Various regulatory authorities
havebeensetuptoensurethatvariousserviceprovidersinelectricity,telephone,and
insurance, provide their services to fully serve the public interest. In this way,
administrativelawhasbecomemoreparticipatorybecausesuchregulatoryauthorities
are involving the people in their decision-making processes.
Growth of Administrative Process in the USA
AdministrativeLawwasrecognizedtobeinexistenceinAmericainthe18th
century, when the first federal administrative law was incorporated in the statutein
1789, but it grew rapidlywiththepassageoftheInterstateCommerceAct,1877.In
1893, Frank Goodnow published a book on Comparative Administrative Law,
afterwards in 1905 another book on the Principles of Administrative Law in the
United States was published and in 1911, Earnest Freund's Case book on
AdministrativeLawwaspublished.Moreover,BenchandBaralsotookinterestinthe
study of administrative law. InhisaddresstotheAmericanBarAssociationin1946
Elihu Root warned the country by a clarion call "there is one special field of law,
development of which has manifestly become inevitable, we are entering upon the
creationofabodyofadministrativelawquitedifferentinitsmachinery,itsremedies
and its necessary safeguards from the old methodsofregulationbyspecificstatutes
enforced by the courts. If we are tocontinueagovernmentoflimitedpowers,these
agenciesofregulationmustthemselvesberegulated...."However,theadviceofsucha
wisecounselwasignoredbytheleadersoftheBar.Thepowersoftheadministrative
agencies continued to increase day by day and they became "a Fourth Branch of
Government".AftertheNewDeal,itwasfeltnecessarytotakeeffectivestepsinthis
sphere. A special committeewasappointedin1933whichcalledforgreaterjudicial
controloveradministrativeagencies.AftertheReportofRuscoePoundCommitteeof
1938 and Attorney General's Committeein1939,theAdministrativeProcedureAct,
1946 was passed containing many provisions relating to the judicial control over
administrative action.
6
Growth of Administrative Process in the UK
In England, by and large, the existence of administrative law as a separate
branch of law was not accepted untiltheadventofthe20thcentury.In1885,Dicey
rejected the concept altogether. Inhisfamousthesisonruleoflaw,heobservedthat
there was no administrative law in England. He had pronounced to Robson: “In
England,weknownothingofadministrativelawandwewishtoknownothingabout
it.”
But whilesayingsoheignoredtheexistenceofadministrativediscretionand
administrative justice which were current even in his days. In a large number of
statutes discretionary powers were conferred on the executive authorities and
administrative tribunals which should not be called into question by the ordinary
courts of law. But he disregarded them altogether. It appears that his contemporary
Maitland was quite conscious of the true position and he observedin1887:“Ifyou
takeupamodernvolumeofthereportsoftheQueen’sBenchDivision,youwillfind
thatabouthalfofthesecasesreportedhavetodowithrulesofadministrativelaw.”He
added; “We are becoming a much-governed nation, governed by all manners of
councils and boards and officers, central and local, high and low, exercising the
powers which have been committed to them by modern statutes.”
But as Taylorstated;“UntilAugust1914,asensiblelaw-abidingEnglishman
couldpassthroughhislifeandhardlynoticetheexistenceofthestatebeyondthepost
office and the policeman.”
In RidgevBaldwinLordReidalsosaid;Wedonothaveadevelopedsystem
of administrative law- perhaps because until fairly recently we did not need it.” In
1914,however,Diceychangedhisviews.Inthelasteditionofhisfamousbook‘Law
andtheConstitution’,publishedin1915,headmittedthatduringthelastthirtyyears,
duetoincreaseofdutiesandauthorityofEnglishofficials,someelementsofdroithad
enteredintoEngland.Buteventhen,hedidnotconcedethattherewasadministrative
law in England. However, after two decisions of the House of Lords in Board of
Education v Rice and Local Government Board v Aldridge, in his article ‘The
Development of Administrative Law in England’ he observed: “Legislation had
conferred a considerable amount of quasi-judicial authority on the administration
which was a considerable step towards the introduction of administrative law in
7
England.” According to Friedmann, unfortunately, Dicey misunderstood the scope
andambitofadministrativelaw.Hethoughtadministrativelawtobeinconsistentwith
themaintenanceoftheruleoflaw.Hence,whilestudyingtheruleoflaw,heexcluded
altogether administrative law and a special system of administrative courts. As
observed by Griffith and Street, the study of administrative law had to suffer a lot
because of Dicey’s conservative approach. Of course, in due course, scholars made
conscious efforts to know the real position. But even to them, the study of
administrative law was restricted only to two aspects, viz. delegatedlegislationand
administrative adjudication. Even in 1935, Lord Hewart, Chief Justice of England
described the term ‘Administrative law’ as ‘continental jargon’. In 1929, the
CommitteeonMinister’sPowersheadedbyLordDonoughmorewasappointedbythe
British governmenttoexaminetheproblemsofdelegatedlegislationandthejudicial
andquasi-judicialpowersexercisedbytheofficersappointedbytheministersandto
suggesteffectivestepsandsuitablesafeguardstoensurethesupremacyoftheruleof
law. In 1932, the Donoughmore Committee submitted its report and made certain
recommendations with regard to better publication and control of subordinate
legislation, which were accepted by Parliament with the passage of the Statutory
Instruments Act, 1946.
In 1947, the Crown Proceedings Act was passed by the British Parliament
which made the government liable to pay damages in cases of tortuous and
contractualliabilityoftheCrown.Thus,theabandonmentofthedoctrine;“Theking
candonowrong”considerablyexpandedthescopeofadministrativelawinEngland.
In1958,theTribunalsandInquiriesActwaspassedforthepurposeofbettercontrol
and supervision of administrative decisions, and the decisions of the administrative
authorities and tribunalsweremadesubjecttoappealandsupervisoryjurisdictionof
theregularcourtsoflaw.Inthetwentiethcentury,socialandeconomicpoliciesofthe
governmenthadsignificantimpactonprivaterights,housing,employment,planning,
education,healthandseveralothermatters.Neitherthelegislationcouldresolvethose
problems nor could ‘Crown’s Courts’ provide effective remedies to the aggrieved
parties. That had resulted in an increase of delegated legislation as also
tribunalisation. In Breen v Amalgamated Engineering Union, Lord Denning
8
proclaimed; “It may truly now be said that we have developed system of
administrative law.”
Lord Diplock went a step further and stated that recent development in
England provided a system of administrative law which in substance nearly as
comprehensive in its scope as Droit Administratif in France. Some British scholars
advocated in favour ofdroitAdministratifandsuggestedimportingthatconceptand
Conseil d’Etat of French legal system to England, though others did notfavourthe
idea.
9
Government Privileges: Means and Methods
General Position
The Constitution of India seeks to establish a Democratic Republic where
under the equality clause there is no question of privileged positionorimmunityin
favouroftheState. Therearenumerousprivilegesandimmunitieswhicharelegally
recognised and enforced infavourofthegovernment.Here,someofthemarebeing
discussed.
Liability of State Regarding Statute
Asthegovernmentalactivitieshaveconsiderablyincreased,theStateperforms
not only 'sovereign functions' but as a 'Welfare State' has undertaken numerous
non-sovereign and commercial activities also.
Insuchacontext,thequestionarises,whethertheStateissubjecttothesame
rights and liabilities which the statute seeks to impose on a person.Inotherwords,
whether a State is bound by a statute, and if it is, to what extent the provisions of
status can be applied to the State. This point is discussed with referencetoEnglish
law and Indian law.
English Law
InEngland,thecrownenjoysthecommonlawprivilegethatitisnotboundby
statuteunlessitisexpressly,namedorisboundbynecessaryimplication.Thus,Wade
states, 'an Act of Parliament is presumed not to bind the crown in absence of an
express provision or necessary implication.' This principle is clearly based on the
well-knownmaxim'Thekingcandonowrong.'Intheory,itisinconceivablethatthe
status made bythecrownforitssubjectcouldbindthecrownitself.Thispositionis
preserved even under the provisions of the 1947 Act.
Indian Law
The English common law rule of sovereignimmunityfromstatuteoperation
was allowed in India prior to 1947 and even after the Constitution till I960. In the
Province of Bombay v. Municipal Corporation of Bombay, the Corporation of
BombaywantedtolaywatermainsthroughlandwhichbelongedtotheGovernment.
1
The Government agreed to this proposal upon certain conditions. Accordingly, the
crown acquired the said land under provisions of the Municipal Act. As provided
under the Municipal Act,themunicipalityhadpowertocarrywatermainswithinor
withoutthecity.'Thequestionforconsiderationwaswhetherthecrownwasboundby
the statute, i.e., the Municipal Act. Following thedoctrineofEnglishlaw,thePrivy
Council held that the government was not bound by the statute.
Government Privilege to Withhold Documents
i) Position in England
In England, the Crown enjoys special privilege of withholding disclosure
documents,referredtoastheruleof"CrownPrivilege."Itcanrefusetodisclosearm
evidenceortoansweranyquestionifinitsopinionsuchdisclosureoranswerwould
beinjurioustothepublicinterest.-ThisrightcanbeexercisedbytheCrownevenin
those proceedings in which it is not a party.
(ii) Position in America
In America, 'government privilege' is termed as 'executive privilege'. The
AmericanCourtsneverabandonedtheircontrolovertheexecutiveforprivilege.The
leadingcaseonthepointisUnitedStatesv.Reynoldswhicharoseoutofthecrashof
a military aircraft on a flight to test secret electronic equipment. Certain Civilian
observersaboardwerekilledandtheirwidowssuedthegovernmentundertheFederal
Tort Claims Act, 1946. Plaintiffs moved for discovery of the Air Force's official
accident investigation report, Government filed a claim for privilege objecting to
production of the report recognizing that there are State secrets which need not be
disclosed,theSupremeCourtadoptedtheviewthatthedeterminationofwhethersuch
secrets are involved in a judicial function.
In New York Times Co. v. United States, the United States sought an
injunction against the New York Times and WashingtonPostprohibitingthemfrom
publishing contents of a classified study entitled 'History of U.S. Decision Making
Process on Vietnam Policy'. The Defence Department had prepared the History
classifyingitas'Secret'.ItwascontendedbytheGovernmentthatitsdisclosurewould
jeopardise National Security and National Defence. The Court refused to grant
injunction.
2
ThepositioninAmericaisnotthesameasinEngland.DistinguishingDuncan
v. Cammel Laird and Co. the U.S. Supreme Court in U.S. v. Reynolds held:
“Neither the executive nor the legislative branch of the government may
constitutionally encroach upon the field which the Constitution has reservedforthe
judiciarybytransferringtoitselfthepowertodecidejusticiablequestionswhicharise
incasesofcontroversiessubmittedtothejudicialbranchfordecisionnoristhereany
dangertothepublicinterestinsubmittingthequestionofprivilegetothedecisionof
Courts.TheJudgesoftheUnitedStatesarepublicofficerswhoseresponsibilityunder
the Constitution is just as great as that of the heads of the executive departments".
Position in India
(i) Priority to Public Interest - In India, the governmentprivilegetowithhold
documentsfromtheCourtsisclaimedonbasisofsection123oftheIndianEvidence
Act, 1872 which reads as under:
"No one shall be permitted to give any evidence derived from un-published
official records relating to any affairs of State, except with the permission of the
officer at the head of the department concerned, who shall give or withhold such
permission as he thinks fit."
As a general rule,therequirementisthatboththepartiestothedisputemust
producealltherelevantandmaterialevidenceintheirpossession.Ifanypartyfailsto
produce such evidence, an adverse inference can be drawnundersection114ofthe
EvidenceAct.Section123givesagreatadvantagetotheGovernmentinasmuchas
inspiteofnon-productionofrelevantevidencebeforetheCourt,noadverseinference
can be drawn against it if the claim of privilege is upheld by the Court. Thisthing
undoubtedlyconstitutesaveryseriousdeparturefromtheordinaryrulesofevidence.
The basis on which this departure can be justifiedistheprincipleofthe'overriding
and paramount character of public interest' i.e., when the public interest served by
disclosure is outweighed by the public interest served by non-disclosure of
documents. A valid claim for the privilege under section 123 proceeds on the
assumptionthattheproductionofanunpublishedrecordwouldcauseinjurytopublic
interest, and that where a conflict arises between the public interest and theprivate
interest,thelattermustyieldtotheformer.Itisthatthelitigantwhoseclaimmaynot
3
succeedasaresultofnon-productionoftherelevantandmaterialdocumentmayfeel
aggrieved by the result, andtheCourtinteachingthedecisionmayfeeldissatisfied,
butthatfactwillnotaffectthevalidityofthebasicprinciplethatpublicinterestmust
override considerations of private interest.
The leading case on the subject is State of Punjab v. Sodhi Sukhdev Singh
decided by the Supreme Court. In this case, the respondent who was aDistrictand
Sessions Judge was removed from service by the President of India. He made a
representationagainsthisremoval.Inpursuanceoftherepresentation,theCouncilof
ministerssecuredtheadviceofthePublicServiceCommissionandthereforedecided
tore-employhim.Hethenfiledasuitfordeclarationthathisremovalwasillegaland
void. He wanted production of certain documents. The State claimed privilege in
respectofthem.TheSupremeCourtbymajorityheldthatthedocumentsinquestion
were protected under section 123 of the Evidence Act and could be withheld from
production on the ground of public interest.
(ii) Balancing of public interests. —In the U.P. v. Raj Narain had filed an
election petition against the then Prime Minister Smt. Indira NehruGandhi.During
the trial, he made an application for production of certain documents. The U.P.
Government claimed privilege in respect of those documents. The Allahabad High
Court rejected the claim for privilege. On appeal, the Supreme Court set aside the
Allahabad Judgment.
In the State of U.P. v. Chandra Mohan Nigam the Supreme Court ruledthat
when an under of compulsory retirement is challenged as arbitrary or mala fide by
clear and pacific allegations, itwasnecessaryfortheGovernmenttoproduceallthe
relevant materials to rebut such pleas to satisfy the Court by voluntarily producing
suchdocumentsaswillbecompleteanswertotheplea."Ordinarily,theservicerecord
of a government servant in a proceeding of this nature cannot be said to be a
privileged document which should be shut out from inspection."
Again, there was a similar question in the well-known case of S.P.Guptav.
Union of India popularly known as the Judges Transfer Case. In this case, the
GovernmentMaimedprivilegeoverthecorrespondencebetweentheLawMinisterof
the Government India and the Chief Justices of the Supreme Court and respective
High Courts relating to transfer and non-extension of two judges of High Courts.
4
After studying the Documents in chamber, the Judges came to the conclusion that
theirdisclosurewouldnotinjurepublicinterest.Rejectingtheclaimofprivilege,the
Supreme Court held that the provisions of the Evidence Act, 1872 should be
construedkeepinginviewournewDemocracyweddedtothebasicvaluesenshrined
intheConstitution.Inademocracy,citizensoughttoknowwhattheirgovernmentis
doing. No democratic government can survive without accountability and the basic
postulate of accountability is that the people would have information about the
functioning of the government. Therefore, disclosure of information in regard to
functioning of government must be the rule and secrecy an exceptionjustifiedonly
where the strictest requirement of public interest so demands.
Whenever an objection is taken against the disclosure of any document, the
CourtwouldallowtheobjectionifitfindsthatthedocumentrelatestoaffairsofState
and its disclosure would be injurious to public interest; but on the other hand if it
reaches totheconclusionthatthedocumentdoesnotrelatetoaffairsofStateorthat
public interest does not compel its non-disclosure or that the public interest in the
administration of justice in a particular case before it overrides all other aspects of
public interest, it will overrule the objection and order disclosure of the document.
Undoubtedly there must be such affairs of State involving security of the
nationandreignaffairswherepublicinterestrequiresthatthedisclosureshouldnotbe
ordered.
(iii) Ideal of Open Government as Ultimate Measure. —The final decision in
regard to the validity of an objection against disclosure raised under section 123
wouldalwaysbewiththeCourtbyreasonofsection102.TheCourtisnotboundby
theassertionsmadebythegovernmentinsupportofpleaagainstnon-disclosure.The
CourthasthepowertobalancetheinjurytotheStateorthepublicserviceagainstthe
risk of injustice, before reaching the decision.
Doctrine of Estoppel
(A) Meaning of Estoppel
The doctrine of estoppel is well established in administrative law in India.
Estoppelisarulebywhichapartyis"precludedfromdenyingtheexistenceofsome
5
stateoffactswhichhehadpreviouslyassertedandonwhichotherpartyhasactedto
his detriment. Explaining the doctrine, Wadestates:
"The basic principle of estoppel is that a person who by some statement or
representationoffactcausesanothertoacttohisdetrimentinrelianceonthetruthof
it is not allowed to deny it later, even thoughitiswrong.Justicehereprevailsover
truth".
Doctrine of Waiver
Awaiverisanabandonmentofright.Theassumptionbehindwaiveristhata
maristhebestjudgeofhisinterest.Ifhewaiveshisright,hecannotclaimitlater.In
ordertoestablishwaiver,itisnecessarytoestablishthatthepersonwaivinghisright
hadknowledgeoftherightorprivilege,andthattherightorprivilegewasconferred
principallyforhisbenefitandnotprincipallyforthebenefitofpublic,forinthelatter
case it would aim against the policy of the law to allow him to waive it. As the
Supreme Court observed:
"Awaiverisanintentionalrelinquishmentofaknownright.Therecanbeno
unless the person against whom waiver is claimed had full knowledge of hisrights
and facts enabling him to take effectual action for the enforcement of such right."
In Motilal Padampat Sugar Mills v. State of U.P., the government sought to
imposethesales-tax.Thepetitionersagreedtopayhalfofthenormalrate.Thereafter
theychallengedthelevy.Butthegovernmenttookthepleaforawaiver.Rejectingthis
Bhagwati, J. statedthatthegovernmentcannotbeallowedtoraisethepleaofwaive
first time at the hearing of the writ petition because it had not been taken in its
affidavits. He further stated that in the instant case, waivercouldnotapplyasthere
wasnothingtoshowthattheappellantshadfullknowledgeoftheirrightandthatthey
nationally abandoned it.
Miscellaneous Privileges of the Government
Besidestheaforesaidprivilegesandimmunities,thegovernmentenjoysmany
other privileges also. Some of them are as follow:
As provided under section 80 of the Code of Civil Procedure, 1908, nosuit
shallbeinstitutedagainstthegovernmentoragainstapublicofficerinrespectofany
6
Act purporting to be done by such public officer in his official capacity until the
expiration of two months next after notice in writing in themannerprovidedinthe
section has been given. Giving notice is a mandatory requirement which admits no
exception. However, therequirementofnoticeisnotmandatory,ifthepublicofficer
has acted without jurisdiction. Thus, if a public officer seizes property without
authority orassaultsawitness,noticeisnotnecessaryforfilingasuitagainsthimin
his official capacity.
The requirement of notice applies to all kinds of relief and forms of action
includinginjunctionordeclarationorcontracts.Whateverelsemaybethemeritofthe
rule,itcertainlycreateshardshipsforthelitigantsseekingimmediatereliefagainstthe
government. Keeping in view thishardship,theLawCommissionrecommendedthe
abolition of the requirement ofnoticeagainstthegovernmentasrequiredbysection
80 of Civil Procedure Code.
Accordingly,theCivilProcedureCode(Amendment)Act,1976addedclause
(2)tosection80whichlaysdownthattheCourtmaygrantleavetoapersontofilea
suit against the government or public officer without serving twomonths’noticein
cases where relief claimed is immediate or urgent. However, before granting the
exemption the Court has to satisfy itself about the immediate or urgentneed.Ifthe
Courtissatisfied,afterhearingtheparties,thatnourgentorimmediatereliefneedbe
granted, it will return theplainttotheplaintiffforpresentationtoitaftercomplying
with the requirement of two months’ notice.
The real object behind the privilege of notice is that the Government, if so
advised, may make amends and meet the claims of the person concerned and thus
avoid unnecessary litigation and wastage of public funds.
Limitation
Apartfromtheprivilegeundersection80,thereisanotherprivilegegrantedto
the government under section 82 of the Civil Procedure Code. Section 82 of the
C.P.C.providesthatwhenadecreeispassedagainsttheUnionofIndiaoraState,it
shall not beexecutedunlessitremainsunsatisfiedforaperiodofthreemonthsfrom
the date of such decree.
7
Under Article 112 of the Limitation Act, 1963, the government has been
allowedthebenefitof30years'limitationforinstitutionofsuitsbyoronbehalfofit.
The period of limitation given to the government is much longer thanthatgivenin
respect of suits by private individuals.
Conclusion
Thegovernmentprivilegesandimmunitieshavebeendesignedforthepurpose
ofperformingsocialfunction.Theassumptionbehindtheseprivilegesisthattheyare
not so muchfortheprotectionofthegovernmentasforthebenefitofthepeople.In
thisareaitisnecessarythatapragmaticandnotpedanticapproachmustguidejudicial
behaviour.Thereisaneedtobalancepublicinterestimmunitywithpublicinterestin
administration of justice.
8
Official Secrecy and Access to Information
Introduction
In democratic countries, at the present time, theaccentisonopengovernment.Itis
true that there are a few things which must be kept confidential in the interest of public
security or national interest. Sometimes the law may impose secrecy in the interest of
individuals.Butthenthesecrecyoughtnotbemorethanwhatisabsolutelynecessary.Inthis
what is necessary is to draw abalancebetween'Secrecy'and"openness"withanaccenton
the latter. There are many reasons suggesting an open government. Participation in the
governmentbythepeopleisregardedasanimportantaspectofdemocracyandpeoplecannot
participate unless they have information as to what is going on in the country. A modern
democraticstatebeinganswerabletothepeople,thepeopleareentitledtoknowwhatpolicies
andprogrammes,howandwhy,arebeingfollowedbythegovernment.Peoplehavetopassa
verdicteveryfiveyearsontheperformanceofthegovernment,anddecidewhetheritshould
stay in the office or not. People cannot exercise their choice intelligently unless they are
given adequate information about the functioning of the government. Another factor
justifyingopennessbythegovernmentisthatbeinganactivistentity,thegovernmentgathers
avastarsenalofpowersinawelfarestate.Thesepowersareusedtoaffecteconomicinterests
and personal liberty of the individual. It is important that these powers are exercised for
public good and for thepurposesforwhichthepowersareconferred.Thisobjectiveisbest
ensured bygivingaccesstotheindividualtogovernmentalinformationandnotshroudedin
secrecy as to how the government exercises its powers in individual cases. Since power
corruptsandabsolutepowercorruptsabsolutely.Thereisaninherentdangerthatvastpowers
given to the executive may be used not for public good but for private gain orforcorrupt
motives.Itisthereforeessentialthatthepeoplehaveasmuchinformationaboutgovernment
operations as possible. Openness in government isboundtoactasapowerfulcheckonthe
abuse or misuse of power by the government. There should be public consultation in the
exerciseoflegislativepowersbythegovernment.Thisideahastobemadeapplicabletothe
whole gamut of governmental functioning. As Schwartz emphasises - “Americans firmly
believeinthehealthyeffectsofpublicityandhaveastrongantipathytothesecretivenessof
governmentagencies."InIndia,sofar,theprogresstowardsopengovernmenthasbeenrather
tardy.Buttheconsciousnessisthere.AsJusticeBhagwatiadvisedinS.P.Guptav.President
of India:
1
"Open government is the new democratic culture of an opensocietytowardswhich
every liberal democracy is moving and our country should be no exception."
ThisapproachisdepictedbyaBritishcase-Attorney-Generalv.JonathanCapeLtd.
Anactionwasbroughtforinjunctiontorestrainthepublicationofthepoliticaldiariesofthe
late Richards Crossman who was a cabinet minister in the Labour Government of 1964to
1970. The plea was that the publication of the diaries would revealthecabinetsecretsand
infringetheprincipleofcollectiveresponsibilityofthegovernment.Collectiveresponsibility
was held to be "an established feature of the Englishformofgovernment",andthat"some
mattersleadinguptoacabinetdecisionmayberegardedasconfidential".Butintheinstant
case,aninjunctionwasrefusedagainstthepublicationofmaterialsinquestionastheywere
about ten years old and no longer required protection in public interest. The Court
emphasised that it should intervene "only in the clearest of cases where the continuing
confidentiality of the material may be demonstrated".
Reference may also be made to an Australian case Commonwealth v. John Fairfax
and Sons Ltd. (1980). Two journalists had obtained a number of foreign office cables and
memoranda covering several matters like Indonesia invasion of East Timor and ANZUS
DefenceTreaty.Thegovernmentappliedforaninjunctiontoprohibitpublicationofmaterials
on the ground of breach of confidentiality. In this connection, Justice Mason said:
"Butitcanscarcelybearelevantdetrimenttothegovernmentthatthepublicationof
thematerialconcerningitsactionswillmerelyexposetopublicdiscussionandcriticism.Itis
unacceptable in our democraticsocietythatthereshouldbearestraintonthepublicationof
informationrelatingtothegovernmentwheretheonlyviceofthatinformationisthatenables
the public to discuss and criticise government action."
Right to Information in India
EvenpriortoenactmentoflegislationsecuringFreedomofInformation,theSupreme
Court by liberal interpretation deduced the right to know and access information in the
reasoning that the concept of an open government is the direct result from right to know
which is implicit in the right offreespeechandexpressionguaranteedunderArticle19(1)
(a) of the Constitution.
TheneedtoenactalawonrighttoinformationinIndiawasunanimouslyrecognised
by the Chief Ministers Conference on effective and responsible government held on 24th
May 1997. The Parliamentary Standing Committee on Home Affairs in its 38th report
recommendedthatthegovernmentshouldtakemeasuresforenactmentofsuchlegislation.In
order to make the government more transparent and accountable to the public, the
2
government of India appointed a working group on Right toInformationandpromotionof
open and transparent government. The working group submitted a draft of theFreedomof
InformationBilltothegovernmentandalsorecommendedsuitableamendmentstotheCivil
Service (Conduct) Rules withaviewtobringtheminharmonywiththeproposedBill.The
GovernmentofIndiaconsideredthedraftBillandsubsequentlytheFreedomofInformation
Act, 2002 was enacted which received the assent of the President on 6-1-2003.
In order to ensure greater more effective access to information, the Government of
India later felt that the Freedom of Information Act,2002mustbemademoreprogressive,
participatory and meaningful. On this issue, the National Advisory Council suggested a
number of changes. In view of a number of changes suggested by the National Advisory
Council it was decided to repeal the Freedom of Information Act, 2002 which was not
brought into force and to enact another law for providing an effective framework for
effectuating the right to information recognised under Article 19 of Constitution of India.
Accordingly,theRighttoInformationAct,2005wasenacted.Asdeclaredinlongtitle
itis"anActtoprovideforsettingoutthepracticalregimeofrighttoinformationforcitizens
to secure access to information under the control of public authorities in order to promote
transparencyandaccountabilityintheworkingofeverypublicauthority,theConstitutionof
Central Information Commission and State Information Commission and for matter
connected therein." Section 3 of the Act provides that subject to provisions of the Act, all
citizens shall have right to information. Section 4 of the Act casts an obligation on public
authoritytomaintainallitsrecordandpublishwithinonehundredtwentydaysfromthedate
ofenactmentofthisAct,theparticularsmentionedinSection4(1)(b).Section5enjoinsthe
duty on every public authority to designate as many officers astheCentralPublicOfficers
and State Officers as the case may be, in all administration or offices under it as may be
necessary to provide information-to persons requesting for under the Act. Section 6 deals
withrequestsforobtaininginformation.Section6providesthatanapplicantmakingarequest
for information shall not be required to give reasons or any other personal details except
those that may be necessary for contacting him. Section 7 deals with disposal of request
underSection7(1)theCentralPublicInformationOfficerhastoprovideinformationsought
forconcernswithlifeandlibertyofperson,thesameshallbeprovidedwithin48hoursfrom
the date of receipt of request. Section 9 enumerates certain grounds on which request for
information may be rejected. Section 11 deals with third party information. Section 12
provides for the Constitution of the Central Information Commission whereas Section 15
dealswiththeConstitutionofStateInformationCommission.Section18providesforpowers
3
and functions of Commission. Section 19 confers a right to appeal on apersonagainstthe
decision of the Central Information and State Public Information Officer. Section 20 deals
with penalties.
TheRighttoInformationAct,2005isaresultofcommunitymovement.Mostofthe
prohibitionsfoundintheOfficialSecretsAct,1923inregardtoacquisitionandpossessionof
informationnowgetdeletedbytheprovisionsofsub-section(2)ofSection8andSection22
which by a non-obstante clause overrides the prohibitions contained in theOfficialSecrets
Act, 1923. Thus, theRighttoInformationpostulatesbalancingofsocialinterestinfreedom
of information and social interest in general security.
Position in England regarding Official Secrets
The existing law in England on the question of criminal liability for disclosureofofficial
secrets is similar to India. The Indian Act is modelled on the English Act of 1911. The
English Act is said to have been conceived in hysteria when England faced the aspects of
greatwarandthemajorcountrieswereengagedinre-armament.Itseekstomakeeverything
secret, even those matters, which should not be secret. Section 2 of the British Official
Secrets Act concernswithleakagesofofficialinformationinsuchawordofsituationsthat,
accordingtoonecalculation,theprovisioncouldgiverisetothepenalty.Section2(ofBritish
OfficialSecretsAct)makesitacrime,withoutanydefence,"toreportthenumberofcupsof
tea consumed per week in a government department." The Committee has suggested the
substitution of Section 2 of the English Act with other more specific provisions. The
Committee has described Section 2 as -
"Havingextensiveramifications,Section2isshortbutitisinverywidetermsandis
highly condensed. It covers a great deal of ground and it createsaconsiderablenumberof
differentoffences.Accordingtoonecalculationover2000differentlywordedchargescanbe
brought under it. It is obscurely drafted and to this day legal doubts remain on some
important points of interpretation."
Access to Information in UK
The Local Government (Access to Information)Act,1985enforcedastatutoryduty
onlocalauthoritytodiscloseinformation.Intheyear1994theGovernmentissuedaCodeof
Practiceonaccesstogovernmentinformation,whichwasrevisedintheyear1997.ThisCode
was anon-statutoryoneandalittlepubliciseddocument.However,theobligationunderthe
Codewastobelegallyenforceable.Thereafterintheyear2000theFreedomofInformation
Act,2000wasenactedintheUK.Section1oftheFreedomInformationAct,2000providesa
generalrightofaccesstoinformationheldbypublicauthorities,localauthoritiesandawide
4
varietyofbodieslistedinScheduleI.ParliamentenactedanActnamelyDataProtectionAct,
1998 which replaces the 1984 Act. The Data Protection legislation is meant to provide
protectionofprivacyinrelationtopersonalinformation.Thedefinitionofdatawasamended
by Freedom of Information Act, 2000 to extend all data held by public authority. The
Parliament has also enacted the Public Interest Disclosure Act, 1998 to protect workers to
disclose information in public interest, from victimisation by their employees.
5. Access to Information in the USA
Amongst common law countries the USA has much better tradition of government
than any other country. The US Constitution does not contain any specific provision for
accessing administrative documents but such a right has been conferred by statutes.
Originally the Administrative Procedure Act, 1946 contained provisions for routine
disclosure ofgovernmentheldinformation.Section3statedasageneralprinciplethatthere
should be free access to documents, but there were broad exemptions from this provision.
The attempt failed because of broad exemptions and vagueness of the language.
. The enactment of FOIA (1960)isregardedasa"landmarkevent"inthehistoryof
Administrative Law.It rejects the notion that the executive should enjoy a concluding and
unchallengeable right to withhold information from the public. The FOIA entitles to have
accesstoanyidentifiabledocumentasitcastsdutyonthegovernmenttosupplyinformation
asitstatespublicaccesstomostdocumentstobethegeneralruleandnodocumentistobe
withheld unless it falls under any of the exempted categories.
Conclusion
Whenaccesstoinformationisdenied,theapplicantcanaskthedepartmentororganisationto
have the decision reviewed by another officer. He has power to:
(a) investigate and review any decision by which a minister, departmental organisation;
(i) refuses to make official information available to any person;
(ii) decides how, or for what charge, a request is to be granted;
(iii) imposes conditions on the user, communication or publication of information,
(iv) gives a notice refusing to confirm or deny the existence or non-existence of any
information requested;
(b)investigateandreviewanycomplaintofunduedelayinrespondingtoarequestforofficial
information. Investigations under the Official Information Act are handled by the Chief
Ombudsman. The Chief Ombudsman conducts his investigations and reviews under the
Official Information Act in the same manner as if they were investigated under the
OmbudsmanAct.FullenquiriesaremadeandtheChiefOmbudsmanwillstudy,asnecessary,
5
anypapersanddocumentsrelatingtothecomplaint.Investigationsarecarriedoutinprivate.
If the Ombudsman forms an opinion that the request for informationshouldnothavebeen
refused and that the decision complained of in respect of the request, was for example,
unreasonable or wrong,thenhemakesareporttotheappropriatedepartmentorMinisteror
the organisation. He has authority to make such recommendations as he thinks fit. The
complainant is also entitledtoacopyoftheOmbudsman'srecommendation.Theprocedure
then is as follows:
The Minister then has 21 days in which to decide whether the Chief Ombudsman's
recommendation should be accepted.
Iftheministerhasnototherwisedirectedinwritingwithin21days,theminister,department
or organisation concerned has a public duty to observe the Chief Ombudsman's
recommendation from the twenty second day after which it was made. In otherwords,the
Ombudsman's recommendationbecomeslegallybindingifitisnotvetoedbytheconcerned
Minister.
6
1
Principles of Natural Justice
Principles of natural justice are an extension of fairness in the administrative process. Ina
broadersense,naturaljusticeimplies‘thenaturalsenseofwhatisrightandwrong’and‘fair,
just and equitable’. In administrative law, principles of natural justice occupy a great
importance. Since administrative law is an ever pervasive and dynamic discipline. The
principlesofnaturaljusticeareappliedtocontroltheprocedurebyinfusingtheattributesof
procedural fairness, regularity and equitability. The procedural fairness can be ensured by
givingreasonableopportunitytoapersonagainstwhomanadverseactionisproposedtobe
takentopresenthisopinionorversionindefencethat’swhythisactionshouldnotbetaken
against him. In simple words, the affected party should be given theopportunitytodefend
oneself. The fairness in administrative proceedings can be guaranteed by the objectivity,
impartiality, absence of prejudice and reasonable opportunity of hearing. The principles of
natural justice comprise two fundamental postulates: a man cannot be judged in his own
cause (Nemo judex incausasua)andaman’sdefencemustalwaysbefairlyheardorheard
by the other party also (Audi Alteram Partem). With the passage of time, theprinciplesof
natural justice have been expanded by covering reasoned decision also in their scope.
According to Lord Reid, justiceisintuitivelyunderstoodtorequireaprocedurewhichpays
due respect to persons whoserightsaresignificantlyaffected.Itisbasedontheassumption
that those affected by the decision should be respected ‘as being capable of explaining
themselves’. These are the rules which areapplicableacrossthejurisdictionsinceagesand
these do not require any approval from the modern agencies of governance. Even the
legislature cannot ignore it while passing the law. In England, no legislation, despite the
sovereigntyofParliament,canexcludetheprinciplesofnaturaljustice.Though,nojudgecan
hold an Act of the Parliament as void as it would mean blaspheme against the doctrineof
parliamentarysovereigntyyetalawagainsttheprinciplesofnaturaljusticecanbedeclaredas
void,aspenneddownbyChiefJusticeCokeinDr.Bonham’scase(1610).Naturaljusticeis
alsoknownasnaturallaw,thelawofGod,Commonsense.Theprinciplesofnaturaljustice
are fundamental and unalterable. Basically, these rules are based on natural principles and
applicable not only in judicial proceedings but also in administrative proceedings.
Contraventiontotheprinciplesofnaturaljusticevitiatestheproceedingsandisheldasvoid.
Naturaljusticeisoneofthemostrelevantandhighlyoperationalconceptsofadministrative
2
law.AccordingtoJusticeChinappaReddyinthematterofSwadeshiCottonMillsv.Unionof
India(1981):
Naturaljustice,likeultraviresandpublicpolicy,isabranchofthepubliclawandisa
formidableweapon,whichcanbewieldedtosecurejusticetothenation.Whileitmay
be used to protect certain fundamental liberties- civil and political rights, itmaybe
used, as indeed it is used more often than not, to protect vested interests and to
obstruct the path of progressive change.
The significance of the principles of natural justice was further explained by the Supreme
Court inSangram Singhv.Election Tribunal, Kotah(1955) as under:
There must be ever present to the mind the fact that our laws of procedure are
grounded on a principle of natural justice which requires that men should not be
condemned unheard, that decisions should not be reached behind their backs, that
proceedings that affect their lives and property should notcontinueintheirabsence
and that they should not be precluded from participating in them.
ThisobservationoftheSupremeCourtdemonstratesthatobservanceorcontraventiontothe
principles of natural justice is to be determined not by any preconceived notion but in the
light of the relevant facts in each case. As JusticeKrishnaIyerinShrikrishnadasTikarav.
State of Madhya Pradesh (1977) cautioned that natural justice cannot be petrified orfitted
into rigid moulds. Elaborating the same approach, Justice ArijitPasayatinCanaraBankv.
Debasis Das (2003) held that what particular rule of natural justice should be impliedand
what its context should be in a given case must depend to a great extent on the facts and
circumstances of that case.
In view of aforementioned discussion, few observations have been drawn on the basis of
judicial approach towards principles of natural justice especially rule against bias.
No One can Judge His Own Cause (Rule against Bias):
The principleof‘Onecannotjudgehisowncause’isbasedonthetenetofruleagainstbias
that implies that a judge should be independent and impartial. A person equippedwiththe
authority toadjudicatemustbefreefromanykindofbiasthatmeansafunctionalprejudice
whether conscious or unconscious concerning the matter pending for consideration. Bias
3
strikesattherootsofvalidityofadecision-makingprocess.Wherethebias,insimplewords,
inclination or apathy of a judge in a matter is proved, such a judge is disqualified from
determiningsuchacase.Independenceandimpartialityofajudgeisanabsolutecondition.A
judgeshouldnothearthematterwhereinheorshehasanypersonalinterest.Theinterestmay
be of eithertype-personal,pecuniaryorotherwise.Thepurposeunderlyingthisprincipleis
to sustain public trust in the impartiality of the authority as the strength of rule of law is
premised on public trust.
Inthisregard,thejudgmentinDimesv.GrandJunctionCanalCompany(1852)isreferredto
as a landmark authority wherein Lord Campbell observed that themaxim,noonecanbea
judge in his own case should be held sacred. It should be applicable to a cause where the
judgeisnotaparty,buthasaninterest.Applyingthedoctrineofnemojudexincausesua,the
decreemadebytheLordCottenhamweresetasideonaccountofhispecuniaryinterestasthe
LordCottenhamwasashareholdertotheextentofseveralthousandpounds.InIndia,Justice
Gajendra Gadkar in M/s Builders Supply Corporation v. the Union of India and Others
(1965)observedthatitisobviousthatpecuniaryinterestinasubjectmatter,howeversmallit
may be, would disqualify an authority for being as a judge. It does not matter even if the
interest in any way influenced the decision or not, the process would be void.
Disqualificationonthegroundofbiasisapplicablenotonlyinjudicialproceedingsbutalso
in administrative proceedings.
Later,withthepassageoftime,ruleagainstbiasdevelopedandoffendinginterestswerealso
viewedintheformofnon-pecuniaryinterests.Inmoderntimes,itimpliesthatajudgemust
befreefromanykindofbiasandjusticeshouldnotonlybedonebutshouldmanifestlyand
undoubtedly be seen to be done. In case ofanybias,theauthoritywouldbedisqualifiedto
adjudge. In the case of Lord Cottenham, it was an illustration of pecuniary interest.
Presently, the rule against bias has extended its scope beyond pecuniary and proprietary
interests. It is applicable in cases even where the judge ishimselfapartyorhasarelevant
interest inthesubjectmatterofthelitigation,evenifnointerestexistsinthefinaloutcome.
Therearefivekindsofbiastodeterminewhetherajudge'sordecisionmaker’sinterestinthe
matterissufficienttojustifydisqualification.Thesearepersonalbias,pecuniarybias,subject
matter bias, departmental bias and policy bias.
Personal Bias: It means –positive or negative feeling towards the stakeholder/s. Personal
bias may arise on account of blood relations, marital relations, friendship or hostility. The
4
existenceofbiasisaquestionoffactandhastobelookeduponinthecontextofeachcase.
Thestandardofproof,inthemattersofpersonalbias,isnotanactualdeterminingfactorbut
merelikelihoodofbiaswilldisqualifyapersonfromdecidingamatter.AsincaseofDimes
v. Grand Junction Canal Company (1852) and A.K. Kraipak v. Union of India (1970), the
likelihoodtestwasappliedtodisqualifyapersonfromdecidingamatter.InKripak’smatter,
the Court took note of the objections totheselectionsmadebytheselectioncommitteefor
promotions of State Forest Officers to the All-India Cadre of Forest Services, where in
Naquishband,whowastheactingChiefConservatorofforests,satintheselectioncommittee
as ex-officio member and was himself a candidate for the all-India service. The court
observed that though he did not participate in the proceedings of the committee when his
name was considered. However, the impact of his presence as a member in the selection
committee cannot be ignored. Therefore, the Court held as under:
The real question worth consideration isnotwhetherhewasbiased.Itisdifficultto
provethestateofmindofaperson.Therefore,whatwehavetoseeiswhetherthereis
a reasonable ground for believing that hewaslikelytohavebeenbiased….Amere
suspicion of bias is not sufficient. There must be a reasonable likelihood of bias.
In thiscase,therewasareasonablelikelihoodthatNaquishband’spresencewouldinfluence
the selection board in his favour and against his rivals. Therefore, the selections were
quashed. Same analogy was applied by the Supreme Court in the case of Mineral
DevelopmentLtd.v.StateofBihar(1960)wheretherevenueministerpresidingtheoverthe
committee to determine the suspension of mining license of the petitioner company the
proprietor of which contested election against the minister in election to Bihar legislative
assembly.
SubsequentlyinJavidRasoolBhatv.StateofJammuandKashmir(1984),JusticeBhagwati
clarified that it is not unusual for candidates related to the members of the Service
Commissions or other Selection Committees to seekemploymentoradmissions.Whenever
suchasituationarises,thepracticegenerallyisforthememberconcernedtoexcuseoneself
when the particular candidate is interviewed. This approach intends to strike a balance
between protecting confidence in impartial decision making and discouraging fanciful and
unmeritoriousallegationsofbias.InAshokKumarYadavv.StateofHaryana(1987),Justice
BhagwatiwhilespeakingfortheBenchexplainedthatthebasicprincipleunderlyingthisrule
isthatjusticemustnotonlybedonebutmustappeartobedone.Whatcanbeobjectionable
5
insuchcasesisnotthatthedecisionsareactuallytaintedwithbiasbutthatthecircumstances
aresuchastocreateareasonableapprehensioninthemindofothersthatthereisalikelihood
of bias affecting the decision. In this matter, the selection to civil and allied services by
HaryanaPublicServiceCommissionwerechallengedonthegroundthatthreeoftheselected
candidatescloselyrelatedtotwomembersoftheCommission.Althoughthosetwomembers
remained absent when the candidates were interviewed,thecommissionhadawardedthose
candidateshighmarks.Itwas,therefore,allegedthatthecommissionhadbeeninfluencedby
the fact that thosecandidateswererelatedtosomemembersofthecommission.Infact,the
SupremeCourtdidnotfindanysubstanceintheallegation.FurthertheCourtheldthatwhere
such aconstitutionalbodylikethePublicServiceCommissionacts,theprinciplesofsucha
total exclusionwouldnotbefeasible.Thecourtopinedthattheselectionswerenotvitiated.
The principle of exclusion is applicable only in the case where a selection committee is
appointed on an ad hoc basis. In case of statutory or constitutional bodies, it cannot be
expected from a member to resign or be totally excluded from the selection process. It is
sufficient if the member dissociates from the selection process in which his relations or
persons interested are being considered. Similarly, in case of constitution of departmental
selection board, a petition for restraining certain members might be allowed but the
proceedings of the board would not invalidate merely because of the deletion of such
members.
Sofarastheonusofprovingthatamemberoftheselectioncommitteehasabias,liesonthe
personwhoallegesit.Thepresumptionisusuallymadebythecourtthatsuchapersonisnot
biased.
PecuniaryBias: Itimpliespecuniaryinterest.Thedecisionofthemembersoftheboardof
studiestoincludetheirauthoredbooksinthesyllabiisagainsttheprinciplesofnaturaljustice
aspointedoutinJMohapatraandCov.StateofOrissa(1984).Thecourtrecommendedthat
suchpersons,ifbyanychance,wereappointedthemembersoftheBoard,theyshouldresign
from their membership, if they wanted their books to be considered.
Departmental Bias: The issue of departmentalbiasariseswhenthefunctionsofjudgeand
prosecutor are combined in the same department. Generally, it is found that the same
departmentwhichinitiatesamatter,itselfdecides.Insuchcases,departmentalfraternityand
loyalty overshadows the fairness in the proceeding. For illustration, the state government
issues a notification totransferthepowerofDeputySuperintendentofPolicetoinspectthe
6
vehicle to the General Manager, Roadways. Thisisaclear-cutcaseofdepartmentalbiasas
theGeneralManagerofRoadwaysbeingarivalofprivatetransporterscannotbeexpectedto
dischargehisdutiesinafair,transparentandreasonablemanner.Hemayrelaxtherigourof
the norm while inspecting the roadways buses.LikewiseintheStateofU.P.v.MohdNooh
(1958), where a departmental inquiry against a police constable was markedtotheDeputy
Supdt. of Police. While Deputy Supdt. of Police himself gave testimony to contradict the
testimonyofaprosecutionwitness,thecasefallsunderthepurviewunderdepartmentalbias.
Similarly,inRatanLalSharmav.ManagingCommittee(1993)amemberofadepartmental
inquiry committee deposed as a witness against a delinquent and the inquiry committee
overruled the objection raised onbehalfofthedelinquent.Theinquirywasheldagainstthe
principles of natural justice and the test of biasness was observed as to examine if a
reasonably intelligent man, fully apprised of all the circumstances, would feel a serious
apprehensionofbias.Likewise,inRanjitThakurv.UnionofIndia(1987),theappellantwas
dismissed from the army on the ground of disobeying his superior’s orders and the very
officer whose orders he was alleged to have disobeyed sat as a member of the inquiry
committee,itwasheldthattheinquirywasvitiatedbybias.Furthermore,whereapersonhad
acted as a disciplinary authority, conducted inquiry, and recommended an employee’s
dismissal, his presence, in his capacity as managing director-cum-chairman on the body,
which heard appeal against such dismissal, defies the fundamental principles of natural
justice. In Amarnath Chaudhary v. Braithwaite and Co. Ltd. (2002), the Supreme Court
observedthattheauthoritycompetenttodismissorremoveanofficialshouldnotberequired
to initiate or conduct the inquiry proceedings itself.
Subject matter bias:Thesubjectmatterbiasmeansthattheauthoritymayhaveaninterest
inthesubjectmatterofthedecision.Suchaninterestmaybedirectorindirect.Thiskindof
biasariseswhendecidinganofficerhasdirectorotherwiseaninterestinthesubjectmatterof
the case. As in Andhra Pradesh State Roadways Transport Corporation v. Satyanarayana
Transport Pvt. Ltd., Guntur(1965),thedecisionsofAndhragovernment,nationalizingroad
transport was quashed on the ground that the Secretary of the Transport Department who
framedthenationalizationpolicy,wasappointedtoaddressthegrievancesagainstthepolicy.
So, it was a clear case of subject matter bias. Similarly, in Rameshwar Prasad v.
Vice-Chancellor,RAUniversity(1975)whereaninquirystartedagainstastudentbasedona
report from the principal, it was held that the latter could not sit on the unfair means
committee. Since he was on such a committee, its proceedings were held to bevitiatedby
7
bias.Sowhereacomplaintisinitiatedbyanofficial,thatcannotbeinvestigatedanddecided
bythesameofficial.Theimportantthingtobekeptintoaccountisthatwhethertherecould
beanyprobabilityofinfluencingthedecisionasinconnectionwithsubjectmatter.Amember
of the tender evaluation committee cannot be disqualified on the ground that his son was
working in a successful bidder company, especially where the job of the committee is to
evaluate. Final authority of decision lies with higher authority. The committee is merely a
recommendatoryauthority,notadecision-makingauthority.Therefore,acceptanceofsucha
tender does not prove faulted on the ground of bias.
Policy bias: Policy bias is similarly to the subject matter bias and question of policy bias
ariseswhenthedecidingauthorityhasanyinterestinthepolicyoritsformulation,promotion
andapplicationlikeinthematterofAndhraPradeshStateRoadwaysTransportCorporation
v.Satyanarayana Transport Pvt. Ltd., Guntur(1965).
Conclusion:
Theupshotofaforesaiddiscussionisthatthedecision-makingprocessshouldbeneutraland
impartial, freefromanyfactorthatmayinfluenceindependentdecision-makingprocessand
depriving other stakeholders from equal treatment of laws. Likelihood of any kind of bias
referred above such as personal bias, departmental bias, pecuniarybias,subjectmatterbias
and policy bias may vitiate the proceedings.
1
Administrative Discretionary Power and Procedural Fairness
Introduction
Administrativelawisconsideredasalawconcerningbasicallythepowersofthegovernment.
The purpose of administrative law is to define and discuss the limits of the powers. The
administrativeauthoritiesexercisingthepowersonbehalfofthegovernmentareexpectedto
exercise within the limits so as to protectthecitizensagainstmisuseofthepower.Inother
words, it can be submitted that administrative law is a law that restrains engines of
administrativeauthoritytorunrecklessly.Therefore,theadministrativelawcoversdiscussion
notonlyaboutpowersbutalsoonthedutytoactandexercisethepowerswithinthedefined
limits.
As far aspowersareconcerned,DiceyinhisthreepostulatesofRuleofLawlaiddownthe
first postulate as supremacy of law. Supremacy of law can be ensured only in absence of
arbitration powers. However, absenceofarbitrarypowersdoesnotmeanabsenceofpowers
orabsenceofdiscretionarypowers.Infact,theadministrativeauthoritiesareconstitutedand
administrative authorities are appointed to serve the people in different walks of life and
facilitate them. To enable them to perform their responsibilitieseffectivelyandefficiently,
administrative authoritiesareequippedwithpowers.Atthisjuncture,itbecomesimperative
to ensure that the powers are used in a responsible way and the discretion lying with the
administrative authorities is exercised in just, fair and reasonable manner.
For understanding the significance of administrative discretionary powers in right
perspectives, the definition of administrative law given by Dicey needs an analysis.
According to Dicey, ‘Administrative law is that portion of a nation’s legal system which
determines the legal status and liabilities of all state officials and defines the rights and
liabilities of private individuals in their dealing with public officials. It also specifies the
procedures by which those rights and liabilities are enforced’.
Above definitiondemonstratesthattheadministrativeauthoritiesarenotonlytherepository
of the powers but they owe liabilities also. These liabilities, ideally speaking, are the jural
correlativesoftherightsofprivateindividuals.Lawconfersadministrativepowersuponthe
stateofficialsandalsodefinesthelimitswithinwhichthesepowershavetobeexercised.The
2
performance of the liabilities of the state officials is ensured through the procedural
safeguards. These safeguards have also been endorsed by Griffith and Street in their
definition of administrative law:
AccordingtoGriffithandStreet,‘Themainobjectofadministrativelawistheoperationand
control of administrative authorities. It must deal with the following aspects:
1. What sort of power does the administration exercise?
2. What are the limits of those powers?
3. What are the ways in which the administration is kept within those limits?
Similarly,K.C.Davisobservesthatadministrativelawisthelawconcerningthepowersand
proceduresofadministrativeagenciesincludingespeciallythelawgoverningjudicialreview
of administrative action.
In view of foregoing discussion about the scope of administrative law, it can besubmitted
that administrative actions areeitherministerialordiscretionary.Aministerialactionisone
where the authority has a duty to do a thing in a particularway.Suchactionsarehowever
exceptional. In a substantial number of administrative actions, the administrative authority
possessesthepowereithertoactornottoactortoactinonewayorother.Thispower–to
act or not toactortoactinonewayortheotheriscalleddiscretionarypower.‘Discretion’
means the power to decide or act according to one judgment. Bydiscretionarypower,itis
meantthatsomethingistobedonewithinthediscretionoftheauthoritiesbyapplyingrules
of reason and justice, not according to private opinion.
Inmoderntimes,itisimpossibletoimaginethatagovernmentcanfunctionwithoutthegrant
of discretionary power to administrative authority. Performance of an action by
administrativeauthoritydependsupontheoccurrenceofcertaineventsortheemergenceofa
situation that cannot be anticipated. In such situations, the administrative authorities are
equipped with the discretionary powers to respond. The response should not be arbitrary,
vague and fanciful but legal and regular. The powers entrusted to the state officials are
inevitably discretionary to greater or lesser extent. These must be exercised within the
boundaries,towhichanaveragemanwithhonestyandsinceritytodutydischargehisoffice.
Toensuretheexerciseofdiscretionitselfinafairandobjectiveway,fewstandardshavebeen
evolved over the time to uphold thesupremacyoflawandpredominanceoflegalaffairsto
sustainthefaithofthepeopleingovernance.Thesestandardsaredelegationofdiscretionary
3
power, lack ofpresenceorinvolvementofunauthorizedpersonornon-member,permissible
delegation, Carltona principle, abuse ofdiscretion,absenceofunfettereddiscretion,judicial
approach towards unfettered discretion, reasonableness, Wednesbury principle, and
proportionality principle. These principles, according to Wade & Forsyth, control the
substanceofdiscretionarypowerstoalimitedbutavitalextent.Astheseprinciplesshapethe
procedure and play a significant role in fair and just decisions. Next partofthediscussion
presents a detailed discussion on all these standards.
Delegation of Discretionary Power
Aninherentattributeoflegitimateexerciseofdiscretionarypoweristhatitshouldideallybe
exercisedbytheauthorityuponwhomitisconferred.Itcannotbedelegated.Thedelegation
isnotpermissibleunlessitisclearlyauthorized.Nooneelsecouldtakeasubstituteddecision
by exercising the power which was not intended to be delegable. Any such decision or
exercise of non-delegable power amounts to ultra-virus. Normally it is seen in a common
practice that the authority to whom the power is conferred or to the office of whom- the
authority is attached, they delegate their power of decision making to the agents and
sub-committees, suchinstanceshavebeendeclaredultra-viresbytheCourtsdespitethefact
that the authority expressly delegated its power to the sub-committee
Besides, the involvement and participation of the non-members in the deliberations or
decisionmakingbyanauthorizedbodymayinvalidatetheproceedingsofthecommittee.As
in thecaseofLanev.Norman1891,Learyv.NationalUnionofVehiclesBuilders1971and
Ward v. Bradford Corporation 1971- the Courts opined that the decision of a disciplinary
committeeisinvalidduetoparticipationofnon-memberofthecommitteeintheproceedings.
Regarding the fatality of the presence of a non-member at the time of proceedings of the
Committee, Lord M R Wright inMiddlesexCountyValuationCommitteev.WestMiddlesex
Assessment Area Committee, 1937 observed:
Itwouldbemostimproperongeneralprinciplesoflawthatextraneouspersons,whomayor
may not be independent interests of their own, should bepresentattheformulationofthat
judicial decision.
The basic idea of imposing this restriction is to restrain the participation of unauthorized
persons in formulation of decisions. Since their presentation may influence the decision
4
making, therefore, the courts apply the doctrineofultra-virusinsuchsituationsandmaxim
delegatus non potest delegare.
TheauthorityconferreduponXcannotbeexercisedbyYevenontheinstructionofX.The
judgmentinthematterofAllinghamv.MinisterofAgricultureandFisheries(1948)ALLER
780 makes this point clear. A wartimelawauthorizedlocalcommitteestodirectfarmersto
growspecificcropsonthegivenfields.Acommitteewasconstitutedtochooseeitheracreof
sugar beet to be grown byafarmer.However,thecommitteedelegateditspowertochoose
thefieldforgrowingsugarbeet,toitsexecutiveofficer.Whenthefarmerwasprosecutedfor
disobedience,hecontendedthatthedirectionoftheexecutiveofficerwasvoidonaccountof
lack of authority to choose the field. Here as per the demands of fairness, the committee
could obtain the recommendation of the officer and ideally shouldhavedecidedthematter
itself.
Likewise,delegationofthepowertosuspendtheworkersfromtheiremployment,topermit
layingdownofdrainsbyentertainingapplications,providehousingforhomelesspersonsand
to entertain appeals against the unfair functioning of thecommitteecannotbedelegatedby
theauthoritiesorboardstowhomthesepowersareentrusted.However,therearefewmatters
wherein preliminary screening is permissiblebyaprimarycommitteeorsub-committeebut
such committees cannot take the ultimate decision beyond preliminary screening. Final
decision is always to be taken by the competent authority in whom the authority vests by
virtue of law. ItcanbeexplainedwiththehelpofRv.SecretaryofStateforEducationand
Science(expBirmingham,1984).Inthismatter,achiefconstablewasentitledtodelegatethe
assistant chief constable his power to extend a police probationer’sprobationperiod,butit
does not cover the power to dismiss a probationer.
In practice, the considerations of convenience and necessity often require that a public
authorityactsthroughthecommittees,executiveofficersandotheragencies.However,these
subordinate agencies have just to recommend and leave the final decision involving legal
implicationstobemadeuponbythecompetentauthority.Therealdecisionistobemadeby
applying one’s mind and conscious choice of the competent authority. Acting of public
authority merely as arubberstampontherecommendationofthesubordinateagencieswill
turn the proceedings as unlawful. To sum up, it can be submitted that ifapublicauthority
obtains advice and consults capable persons and takes the final decision itself, there is no
legal objection.
5
Carltona Principle
Carltonaprincipleisapplicableindelegationofauthorityincentralgovernmentdepartments
not to local governmentauthoritiesorotherstatutorybodies.Itisapplicableindepartments
ofthecentralgovernmentwherebytheofficialsactinthenameoftheirministerswithoutany
formal delegation of authority. Usually, the ministers are in-charge of large ministries or
departments, it would not be feasible for them to exercise all the powers in person. Thus,
exerciseofministerialpowersbytheofficialsoftheministerinvitesnolegalobjection.Inthe
caseofCarltonaLtd.V.CommissionerofWorks(1943),theownerofafactorychallengeda
wartimerequisitioningordermadeonbehalfoftheCommissionerofWorks(astheministry
was then called). The commissioners had power to requisition land ‘if it appears to that
authoritytobenecessaryorexpedienttodoso’.Inthismatter,thecommissionersnevermet
ortransactedanybusinessasabody.Thepowersofthecommissionerswerebeingexercised
completely by their officials and the requisition order was signed by an assistant secretary
(in-charge).TheCourtofappealheldthatthisprocedurewasnotopentoanylegalobjection.
To quote Lord M R Green:
"It cannot be supposed that this regulation meant that in each case the minister in
person should direct his mind to the matter. The duties imposed upon ministers and the
powers given to ministers are normally exercised under the authority of the ministers by
responsible officials of the department. Public businesscouldnotbecarriedonifthatwere
not thecase." Constitutionally,thedecisionofsuchanofficialis,ofcourse,thedecisionof
the minister. The minister is responsible. It is he who must answer before Parliament for
anything that his officials have done under his authority.
Theconsequenceofsuchapracticeisthatministerialpowersareexercisedbyofficialswho
recite things like ‘I am directed by the Minister’, ‘The Minister is of the opinion’, and so
forth. Wheninrealitytheyareactingontheirowninitiative.Iftherightofficialisactingin
hisofficialcapacity,hisassumptionofministerialauthorityislawful.Insuchacase,thereis
nodelegation.Delegationimpliesadistinctactbywhichthepowerisdelegatedtosomeone
notpreviouslycompetenttoexerciseit.Whiletheauthorityoftheofficialstoactonbehalfof
theirministeroronthenameoftheminister’snamederivesitslegitimacyfromconventions
notfromanyparticularactofdelegation.InthematterofRv.HomeSecretary(1991),itwas
observedthatitislegitimateandconstitutionalonthegroundofalteregofictionthatimplies
thatapowergrantedtoaministerisindeedapowergrantedtoadepartment.Therefore,the
6
act of the official is the act of the minister, without any need for specific authorization in
advance or ratification afterwards.
The limits of the Carltona Principle are:
1. It applies only to the departments of the central government.
2. The powers conferred upon a specified minister cannot be exercised in his name by
another minister or officials of another minister.
3. The powers conferred upon one specified minister cannot be exercised in dictation of
another minister. Power should be decisively used by the specified minister
independently. In Lavender & Sons Ltd. V. Minister of Housing and Local
Government (1970), the Minister of Housing and Local Government made it a rule to
refuse planning permission for gravel working -on top-class agricultural land
whenever the application was opposed by the Minister of Agriculture. The court
observed that this was to put the decisive power into the hands of the wrong minister
and that a decision taken in this way should be quashed.
Carltona principle does not prevent one government from consulting others or acting in
coordination with other ministries but it emphasizes on distinguishing seeking advice and
genuinelyexercisingone’sdiscretionfromactingobedientlyorautomaticallyundersomeone
else’ advice or directions.
Abuse of Discretion
Abuse ofdiscretioncanbeaddressedbyapplyingtheyardstickofreasonableness.Aperson
on whom discretionary power is conferred, must exercise discretion upon reasonable
grounds. A discretion, as pointed out by Lord Wednesbury,doesnotempoweramantodo
whathelikesmerelybecauseheismindedtodoso;hemustintheexerciseofhisdiscretion
donotwhathelikesbutwhatheought.Inotherwords,bytheuseofhisreason,ascertainand
follow the course which reason directs. He must act reasonably. The reason is usually
exercised in three ways: firstly, the decision maker should take into account all relevant
considerations and exclude from consideration all irrelevant considerations. Second, the
powershouldbeexercisedforpropernotimproperpurposes.Third,apowermaybeabused
whenitisexercisedtodosomething"soabsurdthatnosensiblepersoncouldeverdreamthat
lay within the powers of the authority’ or as Lord Green in Wednesbury’s case held that
powerisexercisedinsuchanalternativeway,thatitledtoanoutcome‘sooutrageousinits
7
defiance of logic or accepted moral standards that no sensible person who had applied his
mind to the question to be decided could have arrived at it."
Another dimension of reasonableness is the doctrine of proportionality. It is applied when
human rights are at stake or when any limitation on a human right is imposed, such a
limitation should be proportionate to the social and political considerations that justify
limitation. Rule of reason and proportionality are invoked to determine the validity and
constitutionality of the use of discretionary powers. Different judgments across the
jurisdictions have resulted in evolution of a ‘structured test’ to be applied by the decision
makerbeforeimposinganyrestrictiononfundamentalrights.Firstly,whetherthelegislative
object is sufficient and justifies the limitationonfundamentalrights.Secondly,whetherthe
measures designed to meet the legislative objective are rationally connected to it. Thirdly,
whether the means used to impair the right or freedom are no more than is necessary to
accomplishtheobjective.Fourthandfinaliswhetherafairbalancehasbeenstruckbetween
therightsoftheindividualandtheinterestsofthecommunitywhichisinherentinthewhole
oftheconvention. InIndiancontext,grantofdiscretionischallengedunderArticle14ofthe
Constitution. Where due to the use of discretionary power by administrative authority,
element of arbitrariness or mala fide exercise of power is apparent. The action of
administrativeauthoritycanbeassailedasinthecasesofStateofMadrasv.V.G.RowAIR
1952, Dwarka Prasadv.UnionofIndiaAIR1954,andRMSeshadriv.DistrictMagistrate,
TanjoreAIR1954theSupremeCourtofIndiastruckdowntheordersgivingtheimpression
of executive fiat under the garb of discretionary powers.
Conclusion
Toconclude,proceduralfairnesscanbeensuredbygoodfaith,reasonablenessandobjective
use of power by taking into consideration all the relevant and vital factors, and excluding
irrelevant considerations by those on whom the power was conferred. The commonthread
underlying all these doctrines is that the notion of absolute or unfettered discretion is not
acceptable in democratic governance committed to the philosophy of ruleoflaw.Statutory
powersareconferredforpublicpurposeandtosustainthetrustofthepublicingovernance.
Absolutism or presentingarbitrarinessasaweaponagainstthepublictrustcanneverbethe
purposeoftheParliament.Italwaysconfersdiscretionarypowertoservethepublicpurpose
andtheobjectofthelaw.Thus,thecourtsfromtimetotimehaverecognizedthatdiscretion
mustbeusedtopromotethepolicyandobjectsofthelaw.Thediscretionisalwaysconferred
8
with the intention to realize the objectivesoftheAct.However,itisnotpossibletodrawa
hard and fast line to set out the method of exercising discretion. But the exercise of
discretionary powers should be driven by the object and policy of the Act. The public
authority should adhere to exercise good faith as good faith in most of the cases work for
promotionoftheaimandobjectivesoftheAct.Incontrast,badfaithisinterchangeablewith
mala fide, unreasonableness and extraneous considerations which may contaminate the
procedural fairness and invalidate the proceedings.
1
Introduction to Audi Alteram Partem: An Attribute of Natural Justice
Introduction
Procedural fairness is an important feature of rule of law. The basic postulates of procedural
fairness are impartiality in decision making and fair hearing. As discussed in another lecture,
impartiality can be ensured by freedom from bias- personal, pecuniary, subject-matter,
department and policy matter bias. While the concept of fair hearing is premised on equal
opportunityofhearingtheseedsofwhichlieinequalopportunityforrepresentation.Noonecan
be condemned unheard. Denial of equal opportunities in administrative, judicial and
quasi-judicial proceedings may vitiate the legitimacy of the proceedings. Therefore, it is a
fundamentalruletoensurethatboththepartiesareheard:AudiAlteramPartem,means‘hearthe
otherside’or‘boththepartiesmustbeheard’or‘noonecanbecondemnedunheard’. Aproper
hearing will always afford opportunity to those who are partiesinthematter,forcorrectingor
contradicting anything prejudicial to their view. According to Lord Denning in Kanda v. The
GovernmentofFederationofMalaya(1962),“iftherighttobeheardistobearealrightwhich
is worth anything, it must carry with it a right in the accused man to know the case whichis
madeagainsthim.Hemustknowwhatevidencehasbeengivenandwhatstatementshavebeen
made affecting him; and then he must be given a fair opportunity to correct or contradict them.”
Absenceofopportunityofhearingtoonepartymayalsoresultinapparentassumptionofbiasor
prejudice of adjudicatory authoritytowardsanotherpartyaffectingunbiasedhearing.Thesame
approachwasemphasizeduponbytheSupremeCourtinUnionCarbideCorporationv.Unionof
India (1991) 4 SCC 584. To quote, “where there is violation of naturaljustice,noresultantor
independent prejudice need be shown, as the denial of natural justice is, in itself, sufficient
prejudice and it is no answer to say that even with observance of natural justice the same
conclusion would have been reached”.
Moreover, the right to fair hearing has been recognized as a foundation of fair administrative
procedure, akin to ‘due process of law’ as given under the U.S. Constitution. It implies the
opportunity of hearing must be effective and adequate.
2
Elaboratingtheattributesoffair,effectiveandadequatehearing,JusticeVenkataramanAiyarin
Union of India v. T.R. Verma AIR 1957 SC 882 observed:
“Rulesofnaturaljusticerequiredthatapartyshouldhavetheopportunityofadducingall
relevantevidenceonwhichherelies,thattheevidenceoftheopponentshouldbetakenin
his presence and that he should be given the opportunity of cross- examining the
witnesses, examined by the party and that nomaterialsshouldbereliedonagainsthim
without his being given an opportunity of examining them”.
ThebasicideaunderlyingtheaboveobservationoftheSupremeCourtisthattheaffectedparty
should be acquainted withallthematerial,evidenceanddocuments,onwhichtheadjudicatory
authority may rely. The party should have adequate opportunity to challenge the validity and
authenticity of such evidence for rebuttal. The authority should ensure that all the evidentiary
materialbeitpersonordocuments,mustbemadeavailabletotheoppositepartybeforerelying
upon.
Explaining the gamut of applicability of the ‘hear the other party’ rule, the Supreme Court in
National Textile Workers Union v. P.R. Ramakrishnan AIR 1983 SC 75 held that the Audi
Alteram Partem is one of the basic principles of natural justice. This rule is applied in
quasi-judicial or even in administrative proceedings involvingadversecivilconsequences.Itis
also applicable in judicial proceedings like a petition for winding up a company where the
workers would have a fortiori interest to be heard as appointment ofliquidatormayadversely
affecttheinterestsoftheworkers.Denialofopportunitytotheworkersinsuchacasewouldbe
violative of natural justice. Omission to comply with the requirements of the rule of Audi
AlteramPartemmayvitiateadecision.Theforthcomingdiscussiondealswithdifferentaspects
ofAudi Alteram Partem:
⮚ Who is Entitled to Sue or Challenge the Legitimacy of Proceedings?
⮚ Right to Know the Case of Opposite Party
⮚ Limits to the Right to Access Adverse Material
⮚ Closed Material Procedure
Who is Entitled to Sue or Challenge the Legitimacy of Proceedings?
3
Denial of opportunity of being heard is a wrong caused to a person and such a person being
aggrieved may challenge the legitimacy of proceedings on the sameground.Itisbasicallythe
aggrievedpartywhichcanchallengetheprocedure.Noneothercancontendorraisethepleaof
denial of the opportunity of being heard unless the biasness of the adjudicatory authority
compromises the public interest. The judgment in Ridge v. Baldwin (1963) 3 WLR 935, is a
landmark in the context of the rule of fairhearing.Theappellantwasachiefconstableandhe
wasdismissedbytheWatchCommitteeunderSection191(4)oftheMunicipalCorporationAct,
1882.Thedecisionofdismissalwastakeninhisabsenceandhewasnotprovidedachargesheet
ornoticeoftheproposedmeetingoftheWatchCommittee.Theappellantcommencedanaction
against the Watch Committee claiming that thedismissalorderwasvoid.TheCourtofAppeal
dismissedtheactionandheldthattheWatchCommitteewasnotboundtoobservetheprinciples
of natural justice. In further appeal, the House of LordsreversedthejudgmentoftheCourtof
Appealandhelddismissalasnullandvoid.ItwasheldthattheWatchCommitteewasconferred
apowerbyvirtueofSection191(4)oftheMunicipalAct,1885todismissaconstable.However,
it was bound to observe the principles of natural justice. The applicant was neither issuedthe
chargesheetnorinformedaboutthegroundsofproceedingagainsthim.Hehadnotbeengivena
fair opportunity to defend himself.
LikewiseinRv.HendonRuralDistrictCouncilexpChorley(1933)2KB696,itwasheldthat
ifabiasedlicensingauthoritygrantsanapplication,thisisawrongdonenottotheapplicantbut
to other interested parties and to the public interest generally. In such a case, the court is
authorized to grant adequate remedy.
InIndiancontext,thematterofStateofOrissav.Dr.Mrs.BinaPaniDeyAIR1967SC1269,is
a classical example of application of Audi Alteram Partem.Thepetitionerinthismatterwasa
ladydoctoringovernmentemployment.ShehadstatedherdateofbirthasApril10,1910atthe
time of joining service. Subsequently, the Government gathered some information about her
misstatementregardingdateofbirthasApril4,1907.Aninquirywasappointedandonthebasis
of the inquiry report confirming April 4, 1907 as the correct date of birth, her order for
compulsoryretirementwasissued.Thepetitionerchallengedtheorderofcompulsoryretirement
intheHighCourtwhichwasupheld.LatertheStatefiledanappealtotheSupremeCourtwhich
was upheld by the Supreme Court and it was observed that though the order was an
4
administrative order in nature yet it involved civil consequences. Such orders must be in
consonance with the principles of natural justice. The respondent deserved an opportunity to
adduceallevidenceinsupportofhercase.Theabsenceofcompliancetotheprinciplesofnatural
justice turned the order of compulsory retirement asnullandvoid.TheSupremeCourtfurther
observed that the expression ‘civil consequence’ covers a wide range of infraction. It implies
infractionofpropertyandpersonalrights,civilliberties,materialdeprivationandnon-pecuniary
damagesaswellasamatteroffact,everythingthataffectsapersoninhiscivillife.Similarly,in
SarjooPrasadv.TheGeneralManagerAIR1981SC1481,theemployeralteredthedateofbirth
of any employee after having once accepted it without giving an opportunity to theemployee
which was held in violation of naturaljustice. Theprinciplesofnaturaljusticehavealsobeen
applied in the matters concerning use of where the candidates using unfair means in the
examinations were caught. The matters were reported to theexaminationcommitteeforaction
and on the recommendation of the committee, the examination result of the respondent was
cancelled and the respondent was debarred from appearing in the examination for next three
years.Hence,theexaminationcommittee,despitethefactthatitwasempoweredbythestatutes
to recommend the above penalty, the recommendation of the examination committee was
quashed asnoopportunitywasaffordedtothecandidate.TheSupremeCourtinBoardofHigh
School v. Ghanshyam AIR 1961 SC1110observedthattheexaminationcommitteedischarged
the functions of quasi-judicial nature and it was necessary to provide an opportunity of being
heardtoanotherparty.Sincenoopportunitywasmadeavailabletothecandidate,therefore,the
decisionofthecommitteecancellingtheresultofexamsanddebarringhimfornextthreeyears
from appearing in examination was declared in contradiction with the principles of natural
justice. The same approach was followed by the Rajasthan High Court in Lobo v. Rajasthan
University AIR 1981 Raj 69. The cancellation of examination results by the Standing
Examination Committee was set aside by the court on ground of failure of the committee to
provideanopportunitytothecandidateforhearing.Similarly,inMasterBibhuKapoorv.CISC
Examination AIR 1985 Del 142, the answers of the appellant were held similar to another
student. But since the appellant was not served an opportunity of hearing and neither the
examiners were examined. The penalty was imposedmerelyonthegroundofsuspicionwhich
was struck down by the Court on the ground of violation of the principles of natural justice.
5
Subsequently, theSupremeCourtinV.P.Ahujav.StateofPunjabAIR2000SC1080,clarified
that even the person working on probation or a temporary servant also needs to be given an
opportunityofbeingheard.Theservicesofsuchindividualscannotbeterminatedarbitrarilyand
in a punitive manner without fulfilling the requirements of natural justice.
Right to Know the Case of Opposite Party
A proper hearing always includes a fair to the stakeholders who are parties in the matter for
correcting or contradicting anything prejudicial to their view. In Kanda v. TheGovernmentof
Federation ofMalaya(1962)AC322,apoliceofficerwasdismissedinMalaya,afterahearing
before an adjudicating officer. The adjudicating officer had areportofaboardofinquirywith
him in which the charges of misconduct were made. Since the report wasnotdisclosedtothe
police officer, the Privy Council declared the dismissal void.
Likewise, in Chief Constable of the NorthWalesPolicev.Evans(1982)1WLR1155,aChief
Constablerequiredapoliceprobationertoresignonaccountofallegationsabouthisprivatelife.
Butsincetheprobationerwasnotgivenanopportunitytorebuttheevidenceorcaseagainsthim,
the House of Lords held his dismissal as unlawful. Similarly in R. v. Assistant Metropolitan
CommissionerexpHowell(1986)RTR52,ataxidriverwasrefusedtherenewalofhislicense
on the ground of adverse medical report. As the medical report on the ground of which his
application for renewal of license was not disclosed to him, the Court of Appeal quashed refusal.
Limits to the Right to Access Adverse Material
Though the principles of natural justicerequirethatbeforetakinganactionagainstapersonin
judicial,quasi-judicialoradministrativeproceedings,theaffectedpartymustbeprovidedaccess
toadversematerialagainsthimyettherearefewlimitstothesebroadprinciples.TheCourtsare
at liberty to examine the statutory framework within which natural justice has to operate and
sometimes, statute itself contains implied limitations. In such cases, it does not mean that the
opposite party would not be given access to the adverse material but the requirement of fair
procedure maybefulfilledbysharingthesubstanceofthecaseorallegation,theaffectedparty
has to refute. It may be done without disclosing the precise evidence or the source of
information. The extent of the disclosure required under the principles of natural justice may
6
havetobeassessedontheanviloftheschemeoftheAct.LikeinR.v.GamingBoardforGreat
BritainexpBenaimandKhaida(1970)2QB417,theCourtofAppealappliedthesamerule.In
fact, the Gaming Board was empowered to grant certificates of consent to persons wishing to
operategamingclubs.ItwaswithinthepowersanddutiesoftheBoardtoinvestigatecredentials
of applicants and to obtain information from the police and other confidential sources. It was
held by the Court of Appeal that such sources need not be disclosed if there were some
substantial objections that raised the concern of public interest. It is sufficed, iftheBoardhas
given an indication or shared the substance of objections with the applicant to enable himfor
rebuttal.Rightontheheelsofthesameapproach,inRePergamonPressLtd.(1971)Ch388,the
inspectors appointed by the Board of Tradeweretoinvestigatetheaffairsofacompany.Their
duty to act fairly did not warrant them to disclose the namesofwitnessesorthetranscriptsof
theirevidence,ortoshowtoadirectoranyadversepassagesintheirproposedreportindraft.But
withoutquotingchapterandverse,theyshouldbegivenafairopportunitytocontradictwhatis
said against them, as by giving him an outline of the charge; and if their information is so
confidential that they cannot reveal it even in general terms, they should not use it.
Closed Material Procedure
Transparency and confidentiality both hold significance in administrative proceedings. The
administrativeauthoritiesarerequiredtomaintainabalancedviewsoasnottocompromisethe
public interest with the right of an affectedpartytofairprocedure.Thereareseveralinstances
whereadministrativeauthoritiesarecompelledbytheconsiderationsofpublicinteresttoactina
confidentialmannerrelyingontheirintelligencesources.Insuchmatters,publicinterestmaybe
compromised in case the details of the sources are divulged to theaffectedparty.Maintaining
procedural fairness in such cases is extremely difficult, placing them in situations to exercise
Hobson’s choice.
Itisimportanttopointoutherethatthisprocedurecanbeoptedonlyincaseofauthorizationby
thestatutescoveringnationalsecurity,terrorismprevention,investigationetc.wherethesensitive
material cannot be disclosed. In such cases, the statute permits disclosure of material to the
advocateappointedbytheAttorneyGeneralorthedecisionmakerinsteadofthepersonaffected.
Then, such an advocate dealswiththematterandmaterialasperthedemandsofoccasionina
7
closedsession.Endorsingthisapproach,theSupremeCourtinSwadeshCottonMillsv.Unionof
IndiaARI19814SCC485,attemptedtostrikeabalancebyobservingthatAudiAlteramPartem
is a flexible and adaptable concept of natural justice. Its operation can be modified and the
measuresofitsapplicationcanbecutshortinreasonableproportiontomeettheurgentsituation
and harmonizing the obligation to act fairly. So far as the application of providing the
opportunityoffairhearing,itdependsuponthefactandcircumstancesinviewofurgencythatat
what stage fair hearing may be provided.
Conclusion
To sum up, it can be submitted that ‘hear the other party also’ isapplicableinadministrative,
judicialandquasi-judicialproceedings.Sofarasadministrativeproceedingsareconcerned,ithas
a wide range of application in the proceedings involving use of administrative discretion.The
failure on the part of the authority toserveanopportunitytotheaffectedpartymayvitiatethe
attributes of legitimacy and fair hearing.Absenceofadequateopportunityofhearingresultsin
the suspicion of biasness and lack of objectivity while the basic feature of the principles of
naturaljusticeisthatjusticeshouldnotonlybedonebutseemstobedone.Therefore,itcanbe
submitted to conclude that the principles of natural justice are a branch of public law.Itisan
important attribute to ensure fairness, legitimacy, objectivity and secure justice to the
stakeholders. The courts in the international arena and India as well, have acted as vigilant
sentinels on thequi viveto ensure observance tothe principles of natural justice.
Judicial Approach towards Audi Alteram Partem in India
Introduction
Audi alteram partem is an important constituent of the principles of naturaljusticeinIndia.It
impliesthatwhereanydisputeorcivilmatterwhetherofadministrative,judicialorquasi-judicial
nature involves civil consequences, an opportunity of hearing must be provided to both the
parties.Insimplewords,audialterampartemmeans‘heartheotherpartyalso’,or‘noonecanbe
condemnedunheard’.ThejudgementoftheSupremeCourtinManekaGandhiv.UnionofIndia
AIR 1978 SC 597 is considered as a landmark judgement till date on the concept of natural
justice and fair hearing. Justice Bhagwati in this case laid down that the “natural justice is a
great humanising principle intended to invest lawwithfairnessandsecurejusticeandoverthe
years, it has grown into a widely pervasive rule, affecting largeareasofadministrativeaction.
Theinquirymustalwaysbefairandfairnessdemandsthatanopportunitytobeheardshouldbe
given to the person affected. The pronouncement is landmark in the recent history of
administrativelaw,foritestablishesthepracticeofattractingtheruleofaudialterampartemin
all those administrative proceedings whichinvolvecivilconsequences;itunfoldsnewvistasof
applicabilityoftheruleandre-determinesthevaluesofpersonalibertyvisavisnaturaljustice”.
The forthcoming discussion revealsthejudicialapproachtowardstheprincipleofaudialteram
partem.Toensurecomplianceoftheprincipleofaudialterampartem,therearetworequirements
to be met: (a) Notice (b) Opportunity to Explain.
Notice
Every party in a dispute possesses a righttofairhearing.Itisabasicfeatureoffairnessthata
partymustbegiventhenoticeoftheproceedingsbeforebeginning.Therequirementofnoticeto
alltheaffectedpartieswhosecivilrightsareaffectedorlikelytobeaffectedmustbemetinall
proceedings. It is required as a prerequisite of fair hearing. The contents of the notice must
contain the grounds on which action is proposed. These grounds must be clear, specific and
unambiguous. Incasethegroundsofproposedactionarenotclear,thesearevague,unspecific,
uncertainandambiguous,itwouldbeconsideredhavingnotmettherequirementoffairhearing.
Where a notice is vague and does not meet the requirements of proper communication of the
groundsoftakingactionagainsttheparty,allsubsequentproceedingsarevitiatedonthebasisof
suchvaguenessorambiguitiesofnotice.Thejudicialapproachconcerningnoticetotheaffected
parties can be explained with the help of few decisions:
IntheStateofU.P.v.SaligRamShamaAIR1960All543,itwasheldthatachargesheetwas
served on an employee against whom disciplinary action was to be taken. The charge sheet
containedtheallegationsoffraudbutitdidnotrevealthecomponentsoffraudorspecificfraud
andtheCourtheldthatthechargesheetwasvague.Inordertoenableapersontodefendhimself,
the charges imputed on him must be clear and unambiguous.
⮚ InAbdulLatifv.Commission,AIR1968All44itwasheldthatwherethechargeshave
beenspeltoutinthenoticebuttheproposedactionisnotmentioned,suchanoticewould
be considered as vague.
⮚ In the Board of HighSchoolandIntermediateEducation,U.P.v.Km.ChitraSrivastava
AIR 1970 SC 1039, the examination of a candidate was cancelledbytheBoardonthe
groundthatsheappearedinexaminationinspiteoftheshortageofattendanceoflectures.
However, this cancellation order was passed without providing her any show-cause
noticeoropportunitytodefendherself.TheactionoftheBoardwasheldtobeviolative
of the principles of natural justice The court reasoned that the action of the Board to
canceltheexaminationwasanactionofquasi-judicialnature,therefore,itwasobligatory
onthepartoftheboardtoissueashowcausenoticetothecandidatebeforeinflictingthe
penalty of cancellation.
⮚ InJ.Vilangadanv.ExecutiveEngineerAIR1978SC930,itwasheldthatifagroundof
taking action against is mentioned in notice and it is different from the ground on the
basis of which action was taken, it would vitiate the proceedings.
⮚ In State of Uttar Pradesh v.Mohd.SharifAIR1982SC937,anoticewasservedonan
employeeagainstwhomdisciplinaryactionwasproposedtobetaken.Thenoticedidnot
mentionthedate,timeandlocationoftheincident.Thisnoticewasconsideredasvague
and proceedings were found vitiated.
⮚ InA.RamaKoteshwarRaov.V.C.NagarjunaUniversityAIR1991AP7,astudentwas
charged withmal-practiceintheexaminationandamemowasservedtohim.However,
the memo did not contain the details of the mal-practiceandevenhewasnotgivenan
opportunitytopresenthimselfontheallegedmal-practicebytheCommittee.Theaction
taken by the Committee was held in contradiction to the principles of natural justice.
⮚ Similarly in National Central Co-operative Bank Ltd. v.AjayKumarAIR1994SC39,
neitheranoticewasissuedtotheaffectedpartynoropportunitywasaffordedtopresent
hiscase.Straightway,adverseremarkswerepassed.TheCourtheldthattheprocedureis
violative of the principles of natural justice.
In view of the above judgments, it can beobservedthatthecourtsarerigoroustoevaluatethe
reasonableness in the procedure and adequacy of the notice in different contexts as well as
provide an opportunity to the affected party to defend.Thenoticemustmentionthedate,time
and place of hearing in it. Besides, there should be reasonable duration to be provided to the
opposite party to prepare his or her version. If the notice does notprovideenoughtimetothe
opposite party and straightway compel the opposite party to present their defence without
affordingopportunitytoapplyhisorhermind,itwouldnotbeinconsonancewiththeprinciples
of natural justice rather it would be against the spirit oftheprinciplesofnaturaljustice.Asin
PublicProsecutorv.K.P.Chandrashekharan(1959)8STC626,theoppositepartywasgivenone
day’s time to show cause while the person concerned was out of station. In such a case, the
requirement of service noticetoprovideadequateopportunitywouldnotbeconsideredtohave
beenserved.LaterinSudhirRajanv.StateofWestBengalAIR1961Cal626,theHighCourtof
Calcutta decided that the notice must give a reasonable opportunity to comply with the
requirements. The same approach was confirmed by theHighCourtofPunjabandHaryanain
BuaDasv.StateofPunjabAIR1965Pun342,wherethedelinquentemployeewascalledupon
the show cause notice immediately and time was not permitted to him to consider the report
againsthimandpreparehisreplyaccordingly.TheCourthelditasviolationoftheprinciplesof
natural justice. The requirement of service notice is also provided indifferentstatutesaswell.
Thesestatutesdocontainthecontentsandperiodtobestipulatedinsubmittingtherepresentation
by the opposite party.
Opportunity to Explain
Opportunity to explain, in other words,hearingisalsoanimportantattributeoffairprocedure.
Therequirementofhearingisessentialinadministrativeandquasi-judicialproceedings.Anyof
these proceedings without affording the opportunity of being heard may be set aside by the
Courts. Opportunity to explain must satisfy following four requirements as a part of fair hearing:
1. The adjudicating authority should receive all the relevant materials which the
individual wishes to produce;
2. Itshoulddisclosetheinformation,evidenceormaterialwhichtheauthoritywishesto
use against the individual concerned in arriving at a conclusion;
3. Itshouldprovideanindividualconcernedanopportunitytorebutsuchinformationor
material;
4. It should provide the affected party a reasonable opportunity to cross examine the
witnesses produced against him.
Failureinmeetingaboverequirementsmayresultindenialofopportunityofhearing.Noaction
can be taken satisfactorily unless the factual details are gathered by theadjudicatoryauthority
andsharedwiththeoppositeparty.RighttobeheardincludestherighttoaccessallevidenceIn
B.A.Kabirv.Principal,AIR1967Ker121,itwasclearlyheldbytheHighCourtofKeralathat
theadjudicatingauthorityisobligedtogivetothepartytherighttoproducealltheevidencein
support of the case.
Explaining further, the Supreme Court in M/s Rohtash Industries Ltd. v. Industries Mazdoor
Sangh AIR 1977 SC1867observedthatincasetheoppositepartycouldnotsubmitorhadnot
submitted its written statement, it does not authorise the adjudicating authority to refuse
opportunity to that opposite party to examine witnesses when the opposite party assertsforit.
Anysuchdenialonthepartofadjudicatoryauthoritywouldamounttodenialofprinciplesoffair
hearing. As in Josoph Vilangaden v. Executive Engineer, Ernakullam AIR 1978 SC 930 – a
contractorwasblacklistedbyanorderoftheExecutiveEngineer.Asanoutcomeofblacklisting,
thecontractorwasdebarredfromenteringintofurthertransactionswiththegovernmentaloffices
in future. The Executive Engineer just gave a show cause notice to the contractor before
cancellation of the contract but did not give a clear intimation proposing him to debar from
taking any contract with the department in future. This move of the Executive Engineer was
challengedbythecontractorwhereintheCourtheldthatpetitionerwasnotaffordedanadequate
opportunity to representagainsttheimpugnedactionoftheExecutiveEngineer.Thecontractor
could have been provided an opportunity of representation against the proposed order of
blacklisting.
Similarly in J & K Bank v. B.R. Gupta AIR 1994 SC 1575, the Supreme Court clarified that
whereasapartofdisciplinaryproceeding,anemployeewasdismissedonthegroundofinquiry
report without being provided an opportunitytodefendhimselfandcopyoftheinquiryreport,
such a dismissal was considered as lacking compliancewiththeprincipleofnaturaljustice.In
suchinquiries,thedelinquentemployeehasarighttoreasonableopportunitytorepresentagainst
a finding of inquiry officer. He has a right to secure a copy of the inquiry report before
disciplinary authority takes decision on the guilt of the delinquent. Besides, allthedocuments
which maybeprobablyconsideredbytheadjudicatoryauthorityeventheadditionalstatements
on the record or in thefileneedtobesuppliedtothedelinquentpartyasinM/sGangesWater
Proof Works (P)Ltd.v.UnionofIndiaAIR1999SC1103,theSupremeCourtsetasideaward
on the ground of violation of the principles of natural justice.
No material canberelieduponbytheauthorityunlessanopportunitytotheoppositepartyhas
beengivenforitsrebuttal.Therighttoknowinsuchcasesistheinalienablepartoftherightto
defendoneself.InDhupSinghv.StateofHaryana1970LabIC447,theaccesstothecopyofthe
basic document used in framing the charges was not supplied to the petitioner. Therefore, the
Courtheldthatsincehecouldnotdefendhimselfbeforetheinquiryofficeintheabsenceofthe
basic document on the ground of which thechargewasframed,theproceedingsoftheinquiry
officer were quashed.
In view of above decisions of different courts, it can be submitted that the rule of procedural
fairness demands that the disciplinary authority should supply or show the material to the
delinquentofficeroraffectedpartybeforepassinganorder.Insuchcases,theargumentthatsuch
adocumentisaprivilegeddocument,isunsustainable.ConfirmingthesameapproachinGopal
Singh v. State of Bihar AIR 1984 Pat 294, the government proposed to inflict punishment of
dismissalonthepetitionerprimarilyonthebasisofsomeallegationslevelledagainsthiminthe
report by the District Magistrate. The petitioner demanded the copy of the report which was
turneddownbytheauthority.TheCourtheldthattheorderofdismissalliabletobequashedfor
lackoffairhearing.Itwascontendedbythestatethatthecontentsofthereportwereapprisedto
the petitioner, and was rejected by the Court. The Court made it categorically clear that mere
disclosure of the contents of the report did not satisfy the requirements of fair hearing.Afair
opportunityofhearingrequiresdisclosureofallthefactswhichmaybeusedagainsttheaffected
person.
Itisimportanttopointoutherethattherulesofnaturaljusticearenottoorigidorinflexible.In
fact,therearesomecircumstancesinwhichtherigouroftheprinciplesofnaturaljusticecanbe
relaxed in view of the urgency or disciplinary nature such as where prompt, preventive or
remedial action is required or disclosure of information may be prejudicial to public interest.
LikeinHiraNathMishrav.ThePrincipal,RajendraMedicalCollege,RanchiandAnotherAIR
1973 SC 1260, the Supreme Court observed that the rules of naturaljusticearenotinflexible,
these can differ in different circumstances. In this matter, the male students of the Medical
College climbed up alongthedrainpipestotheterraceoftheGirlsHostelduringoddhoursof
nightandmisbehavedwiththegirlresidentsofthehostel.Acomplainttothiseffectwaslodged
with the principal who constituted an Inquiry Committee. The students against whom the
complaints were lodged were called one after the other and they submitted their explanation
denyingtheirinvolvement.Thestatementsofthegirlshadnotbeenrecordedinthepresenceof
thepetitioners.Themalestudentswerenotgiventheopportunitytocross-examinethegirlsand
the witnesses. The Committee’s report was also not made available to them.Thereportofthe
Inquiry Committee was challenged on the ground that the inquiry was vitiated. The Court
rejected the contention ofthepetitionerandheldthatinviewofthefactsandcircumstancesof
the case, the requirements of the principles of natural justice were satisfied when the male
students were given the opportunitytoexplaintheirconduct.TheCourtheldthatthecourseof
action followed by the principal of the college was a wiseoneandintegrityoftheCommittee
could not be impeached as it collectedandshiftedtheevidenceonthegirlstoprovebreachof
discipline. Later theCommitteeprovidedanopportunitytothestudentsnamedbythegirlsand
apprised of the charges to meet the requirements of fair hearing.
In Union of India v. AnandKumarPandeyAIR1995SC388,thecancellationoftheselection
listpreparedbytherailwayauthoritiesonthegroundthatthecandidatesfromaparticularcentre
resorted to unfair means and were required to appear in written test again was upheld by the
Supreme Court. In fact, the Railway Recruitment Board conducted a written examination
followed by a viva voce test for selection and recruitment to various posts of non-technical
nature in the Eastern Railway. A panel of selected candidates was prepared and published.
However, in between, a complaint was received by railway authorities that unfairmeanswere
used at a particular centre. The railway authorities cancelled the selection and employment
ordersofthecandidatesfromtheparticularcentre.TheCentralAdministrativeTribunalquashed
the order of cancellation on the ground of failure of the authority to meettherequirementsof
naturaljustice.Inappeal,theSupremeCourtupheldtheorderoftherailwayauthoritycancelling
the examination result of candidates fromaparticularcentreandinstructingthemtore-appear.
TheSupremeCourtupheldtheorderoftherailwayauthorityonthegroundthatnocandidatehad
been debarred from re-takingtheexam.Tomakesurethattheeligibleandqualifiedcandidates
appear for the exam, the process of the written test will be held again.
Conclusion
TheupshotofaforesaidanalysisofjudicialdecisionisthatthecourtsinIndiahaveclearlyheld
that in the matters of administrative and quasi-judicial nature, the adjudicating authority must
provide not only notice to the affected party disclosing time, venue and date ofhearingalong
with charges levelled but also reasonable duration for preparation of his defence to make his
rebuttal. While doing so, there should beareasonablegapbetweentheperiodofnoticeserved
and hearing in addition to guarantee the right of the affected party to know all material and
evidencewhichcanbeconsideredbyadjudicatingauthoritytoreachadecision.Denialofaccess
tosuchdocumentsandevidencewilldepriveoneofone’srighttoknowresultingindenialofthe
right to fair hearing.
Liability of the State in Torts and Contract
Introduction
Hello viewers, I am Dr.AmitKumar.Today,thetopicofmylectureisLiabilityoftheStatein
India in tortsandcontract-Inpresentdemocraticsociety,thegovernmentassumestheroleofa
‘Social Service State’ in the interest of general welfare, in such scenario the question of
government liability evokes a serious response. At one end the concept of intensive form of
governmentrequiresactiveparticipationoftheStateinwelfareandserviceactivitieswhereasat
the other end, the concept of government liability may have a dampening effect on such
participation. In such a context, a very delicate balance has to be drawn.
In case of wrong committed, two courses may be open to an aggrieved person, either sue the
officer concernedorproceedagainstthegovernmentonwhosebehalfhewasacting.Earlyrule
of law recognized the principle of liability of the officer concerned treatinghimnothingmore
thananordinarycitizen.However,withtheincreaseofgovernmentalfunctions,therehasbeena
shiftfromthe“officer’sliability”to“stateliability”onwhosebehalfhedischargesthefunctions.
Thefactorresponsibleforsuchashiftseemstobetheapprehensionthattheconceptof‘officer’s
liability’ may have a chillingeffectontheindependenceandinitiativeoftheofficersactingon
behalf of the government charged with social obligation for promoting social welfare.
Liability of Government in Torts
Doctrine of Vicarious Liability
Thewholeideaofvicariousliabilityofthestateforthetortscommittedbyitsservantsisbased
on three principles:
⮚ Respondent Superior
⮚ Qui Facit Per Alium Facit Per Se
⮚ Socialisation of Compensation
State is not alivingentitybutalegalentitywhichcannotfunctionwithouthumanagency.Itis
thereforethattheStatehastoactthroughitsservants.TortuousliabilityoftheStateisreallythe
liabilityoftheStateforthetortuousactsofitsservants.TheconceptoftortuousliabilityofState
referstoasituationwhentheStatecanbeheldvicariouslyliableforthewrongscommittedbyits
servants.
English Law
The feudal concept “king can do no wrong” ruled the law of tortuous liability of the State in
England.Absoluteimmunityofthecrownwasacceptedandthecrowncouldnotbesuedintort
forwrongscommittedbyitsservantsincourseoftheiremployment.However,withthegrowth
of governmental functions, the general immunity afforded to the crown in tortuous liability
proved to be incompatible with the demands of justice. Thus, in course of time,itcametobe
realisedthatthedoctrineofsovereignimmunityhadbecomeoutmodedinthecontextofmodern
developments.Accordingly,thegeneralimmunityofthecrownwasabolishedbytheParliament
enactingtheCrownProceedingsAct,1947.ThisActplacedtheGovernmentinthesameposition
as a private person. Now, the position is that the Government can sue and be sued.
American Law
ThedoctrineofsovereignimmunitycametobeappliedtotheUnitedStatesalsowheretherewas
no king but a democratic republic.“Asovereignisexemptfromsuit”assertedJusticeHolmes,
“not because of any formal conception or absolute theory, but on logical andpracticalground
thattherecanbenolegalrightasagainsttheauthoritywhichmakesthelawonwhichtheright
depends”.
Thedoctrineofsovereignimmunityhas,however,beenstronglycriticisedbysomemembersof
theUnitedStateSupremeCourt.InsuchaclimateofimmunityofState,thecongressenactedthe
Federal Tort Claims Act 1946, to abrogate, largely, the immunity of the Federal Government
from tortuousliability,subjecttospecifiedexceptions.TheFederalTortClaimsAct,1946,lays
down that-
“TheUnitedStatesshallbeliable,respectingtheprovisionsofhistitlerelatingtotortclaims,in
the same manner and to the same extent as a private individual under like circumstances”
Indian Law
AsregardssovereignimmunityinIndia,themaxim,“TheKingcandonowrong”hasneverbeen
accepted.AbsoluteimmunityoftheGovernmentwasnotrecognizedintheIndianLegalsystem
evenpriortothecommencementoftheConstitution.Inanumberofcases,theGovernmentwas
sued and held liable for tortuous acts of its servants.
Constitutional Provisions
ThereareanumberofConstitutionalprovisionsrelatingtothetortuousliabilityoftheState.As
provided under Article 294 (b), the liability of the Union Government or a State Government
mayarise“outofanycontractorotherwise”.Theword“otherwise”indicatesthatsuchliability
mayariseinrespectoftortuousactsaswell.TheextentofthesaidliabilityisdefinedinArticle
300 (1) which declares that the Government of India or of a State, may sue or be sued “in
relation totheirrespectiveaffairsinthelikecasesastheDominionofIndiaandCorresponding
Provinces or the corresponding Indian States might have sued or been sued”.
The liability of the Dominion and Provinces of India before the commencement of the
Constitutionwasdescribedinsection176oftheGovernmentofIndiaAct,1935,referringback
to section 32 of the Government of India Act, 1915, which refers to section 65 of the Act of
1858. Section 65 of the Act of 1858 provided that on the assumption of the power of
Government ofIndiabytheBritishCrown,theSecretaryofstateforIndia-in-councilwouldbe
liable to the same extent as the EastIndiaCompanywaspreviouslyliable.Itwillthusbeseen
thattheliabilityoftheGovernmentwhetherpriortotheConstitutionorundertheConstitutionis
the same as that of East India Company before 1858.
Sovereign and Non-Sovereign Function
Pre-Constitution View
Article300oftheConstitutionembodiestheprinciplesthatinIndia,theStatecanbesuedinits
ownCourts,subjecttocertainprinciplesrelatingtoliability.Thus,neithertheAmericandoctrine
ofimmunityofStatefrombeingsuedwithoutitsconsentnortheEnglishCommonLawdoctrine
of absolute immunity of State from being sued is applicable in India. It is owing tohistorical
reasons that there are some vestiges of the English doctrine of sovereign immunity in the
principles of liability for torts. Thus, In Steam Navigation Co., theSupremeCourtofCalcutta
stated,“asageneralrulethisistrue,foritisanattributeofsovereignty,andauniversallawthat
a State cannot be sued in its own Courts without its consent”. In this respect, a distinction is
soughttobemadebetween‘sovereignfunctions’and“non-sovereignfunctions”oftheState.As
regards the former, the Stateisimmunefromliabilityintort,whileinrespectofthelatter,itis
liable for tortuous acts of its employees. It is therefore necessary tounderstandthedistinction
between sovereign and non-sovereign functions with reference to some concrete cases.
The leadingcasearisingundersection65oftheGovernmentofIndiaAct,1858isP&OSteam
Navigation Co. v. Secretary of State, wherethequestionbeforetheSupremeCourtofCalcutta
was as to what was the extent of liability of East India Company for the tortuous acts of its
servants committed in the course of their employment. In this case, a servant of the
plaintiff-companywastravellinginahorse-drivencarriagebelongingtothecompany,whilethe
carriage was passing near the Government Dockyard, certain workmen employed by the
Government,negligentlydroppedanironpieceontheroad.Thehorseswerefrightenedandone
of them was injured. The plaintiff-company filed a suit against the Secretary of State for
India-in-Council for the damage that was suffered due to the negligence of the servants
employed bythegovernmentofIndiaandclaimeddamages.Thedefendantsclaimedimmunity
ofthecrownandcontendedthattheactionwasnotmaintainable.TheSupremeCourtofCalcutta
heldthattheactionagainstthedefendantwasmaintainableandawardedthedamages.Delivering
the judgement, the Court pronounced:
“Thereisagreatandcleardistinctionbetweenactsdoneinexerciseofwhatareusuallytermed
assovereignpowers,andactsdoneintheconductofundertakingswhichmightbecarriedonby
private individuals without having such powers delegated to them”.
Holding the Government liable, the Court further stated:
“The Secretary of State is liable for damages occasioned by the negligence of servants in the
service of Government, if the negligence is such as would render an ordinary employer liable”.
Thus,theCourtclassifiedtheactsoftheSecretaryofStateintotwocategories-(i)SovereignActs
and (ii) Non-Sovereign Acts. In respectofsovereignacts,theSecretarywasimmunefromany
liability,butinrespectofnon-sovereignacts,hewasliable,intheinstantcase,theimpugnedact
fell in the category of non-sovereign act, the action was therefore, held maintainable.
However,inNabinChunderv.SecretaryofState,Ganjalicencewasauctioned.Theplaintiffwho
was the highest bidder was not granted the licence and he, therefore, filed a suit for specific
performanceofcontract.Declaringanactionofgrantingaganjalicenceassovereign,amethod
of collecting tax, the Court held that the action was not maintainable as the Government was
immune from any such action.
ButinSecretaryofStatev.HariBhanji,asuitwasinstitutedforrecoveryofexcessexciseduty
collectedbytheStateonsalt.Thequestionwaswhetherthesuitwasmaintainable.TheMadras
High Court ruled that the immunity of East India Company extended only to “acts of State”,
strictlysocalledandthatthedistinctionbasedonsovereignandnon-sovereignfunctionsofEast
India Company was not well founded. This line of reasoning was confirmed in Saloman v.
Secretary of State.
According to the Law commission of India, “the lawwascorrectlylaiddowninHariBhanji’s
case”. Accordingly, the Commission recommended legislation giving effect to the principleof
law propounded in Hari Bhanji.
Post Constitution View
After independence, in State of Rajasthan v. Vidyawati, the Supreme Court held the State
vicariously liable for the tort commit-ted by its servants. The facts of this case were that in
February 1952, a driverofagovernmentjeep,whiledrivingbackfromtheworkshop,knocked
down a person onthefootpath,causingmultipleinjuriesincludingfractureoftheskullandthe
backbone,whichresultedinhisdeath.Asuitfiledbythewidowofthedeceasedandherminor
daughter forcompensationwasdecreedbythetrialjudgeagainstthedriver,butnotagainstthe
State. On appeal, the High Court decreed the suit against the State also. Hence, the State of
Rajasthan wentonappealbeforetheSupremeCourt.ThemainargumentonbehalfoftheState
wasthatitwasnotliableforthetortuousactsofitsemployees,forinsimilarcircumstancesthe
East India Company would not have been liable, as the jeep was maintained in exercise of
sovereignpowersandnotasapartofcommercialactivityoftheState.B.P.SinhaCJdismissing
the appeal by the State of Rajasthan held thattheimmunityruleoftheCrowninEnglandwas
based on the old feudalistic notions of justice. In India, ever since the time of the East India
Company, the sovereign had been held liable to be sued in tort or in contract, and the
common-law immunity never operated in India. He went on to say that India has now been
constitutedasasocialisticstatewithvariedwelfareactivitiesemployingalargearmyofservants
and,therefore,thereisnojustificationinprincipleorinthepublicinterestthattheStateshould
notbeheldliablevicariouslyforthetortuousactsofitsservants.Itwasthoughtthatthisdecision
has abolished thedistinctionbetweensovereignandnon-sovereignfunctionsforthepurposeof
determining State liability and that, henceforth, the government would be liable for the torts
committed by its servants in all cases, except “acts of State”.
Unfortunately, only three years later, the development of law inthisareasufferedasetbackin
KasturiLalRamJainv.StateofU.P.,inthiscasetheplaintiffwasgoingtoMeeruttosellgold,
silver and other goods. As hewaspassingthroughthecity,hewastakenintocustodybythree
policemen.Hewassearchedandallthegoldandsilverwastakenintocustody,andhewasputin
the lock-up. On hisrelease,hisgoldwasnotreturned,thoughsilverwasimmediatelyreturned.
ThegoldhadbeenmisappropriatedbytheheadconstablewhofledtoPakistan.KasturiLalfiled
a suit against theGovernmentofUttarPradeshforthereturnofthegoldorvalue.Therewasa
clear finding onrecordofgrossnegligenceonthepartofthepoliceauthoritiesinthematterof
safe custody of the gold. However, Gajendragadkar CJ, ashethenwas,reintroducedagainthe
vague distinctionofsovereignandnon-sovereignfunctions,andheldthattheStateisnotliable
because the functions of arrest and seizure of the property are sovereign functions.
Thecourtfurtherheldthatiftheactissovereign,noactofnegligenceonpartoftheemployees
of the State would render the State liable.
Inthiscase,thecourtwronglyappliedtheratioofP.O.SteamNavigationCo.Aclosereadingof
thecaseshowsthatSirBarnesPeacock,whilewritingaboutthesovereignfunctions,hadinmind
onlythefunctionswhichcouldbetechnicallytermedas“actsofState”and,therefore,cannotbe
done under the colour of municipal law. This becomes clear from the fact that “acts while
carryingonhostilities”or“seizingenemyproperty”weretheexpressionsusedasillustrationsto
demonstrate“sovereignacts”.Thisisalsoawrongdecisionbecausebynostretchofimagination
could such a flagrant violation of the U.P. Police Regulations are termed as a “sovereign
function”. Facts of the case showed that the officer in charge ofthepolicestationallowedthe
con-stable to keep the gold in his private custody, whereas the law required its deposit in the
local government treasury.
The distinction between sovereign and non-sovereign functions is a juristic blasphemy which
leads to absurd and arbitrary conclusions. A brief survey of various High Courts’ decisions
proves this fact beyond all reasonable doubt. In Satyawati v. Union of India, the Delhi High
CourtheldthatthecarryingofahockeyteaminamilitarytrucktotheAirForceStationtoplaya
match is not a sovereign function.TheBombayHighCourtheldinUnionofIndiav.Sugrabai
that the transporting of military equipment from the workshop of the Artillery Schoolisnota
sovereignfunction.TheMysoreHighCourtinStateofMysorev.RamchandraGudacametothe
conclusion that the construction of a reservoir by the State for the purpose of supplying
drinking-waterisnotasovereignfunction.TheAllahabadHighcourtheldintheStateofU.P.v.
Hindustan lever Ltd. that the government sub-treasury’s banking function is not a sovereign
function.ThePunjabHighCourtinUnionofIndiav.HarbansSinghcametotheconclusionthat
theStateisnotliableforcompensationtoapersonwhoisrunoverbyamilitarytruckcarrying
mealsformilitarypersonnelondutyintheforwardarea,asitisasovereignfunction.However,
thesameHighCourtinUnionofIndiav.Jassocametotheconclusionthatthecarryingofcoal
tothearmyheadquartersisnotasovereignfunction.Inviewoftheabovefacts,theneedforthe
development of a more viable principle to determine governmental accountability cannot be
overemphasised. A comprehensive legislation on the subject is the only right answer.
Contractual Liability of State
Articles 294, 298,299 and 300 complete the constitutional code of contractual liability of the
government. Article 294 makes provisionforthesuccessionbythepresentgovernmentsofthe
Union and the States to property, assets, rights, liabilities and obligations vestedintheformer
governments. Article 298 lays down that for carrying out the functions of the State, the
government can enter into contracts. Article 299 contains essential formalities, which a
governmentcontractmustfulfil.Article300providesthemannerinwhichsuitsandproceedings
against, or by the government may be instituted. However, the constitutional code for public
contract is not complete; therefore, it is supplemented by the provisions of the Contract Act,
1872.Agovernmentcontract,inordertobevalid,besidessatisfyingtherequirementsofArticle
299, must also fulfil therequirementsofSection10oftheContractAct,1872dealingwiththe
essentialsofavalidcontract.Inthesamemanner,theprinciplesfordeterminingthequantumof
damagescontainedinSections73,74and75arealsoapplicableincaseofgovernmentcontracts.
Nevertheless, all the provisions of the Contract Act, 1872 are not applicable to government
contracts. The provisions relating to capacity as to age and mind have no relevance to such
contracts.
Before 1947, the crown in England enjoyed immunity frombeingsuedinitsowncourts.This
immunityoftheCrownwasfurtherfortifiedbydoctrineoffeudalisticoriginsignifyingthatthe
“kingcandonowrong”.However,evenduringtheheydayofCrownimmunity,apersoncould
seek redress against the Crown through a “petition of right”.
There was never any doubt that the East India Company, which was essentially acommercial
concern,wasnotentitledtoanyimmunitywhichtheCrownmayenjoyfromtheliabilityarising
outofcontracts.InBankofBengalv.UnitedCo.(BankofBengal),SirCharlesGreyandFranks
held that the East India Company hadnosovereigncharactertopreventitfrombeingsuedfor
therecoveryofinterestonthreepromissorynotesonthebasisofwhichtheCompanyborrowed
money for the efficient prosecution of war for defending and extending the territories of the
Crown in India.
Thereisnodenyingthefactthatgovernment,becauseofitsspecialresponsibilitiesandposition,
cannotbeequatedwithanyotherindividualand,therefore,theGovernmentofIndiaActs,1858,
1919 and 1935 made special provisionsprescribingthemannerinwhichgovernmentcontracts
are to be made. The formal requirementsintheseActswerealwaysconsideredmandatoryand
their non-fulfilment rendered the whole contract invalid. The mandatory character of these
formal requirements isevidentfromthefactthatin1870,thegovernmenthadtopassaspecial
statute to validate those contracts which were deficient in these formal requirements.
Maintaining the same tradition, the Indian Constitution also lays down certain formal
requirements for contract in Article 299(i). These requirements aremandatory.Thesehavenot
been provided merely for the sake of form but to protectthegovernmentagainstunauthorised
contracts, so that public funds may not be wasted on unauthorised contracts. The formal
requirements laid down in Article 299(i) are as follows:
⮚ ThecontractmustbeexpressedtobemadebythePresidentortheGovernor,asthecase
may be.
⮚ The contract must be executed on behalf of the President or the Governor, as the case
may be.
⮚ The contractmustbeexecutedbyapersonauthorisedbythePresidentortheGovernor,
as the case may be.
CasesinvolvingbreachofcontractualobligationbytheStateoritsauthoritiesandagenciesmay
be divided into four categories:
1. Where promissory estoppel applies against the State.
2. Where reach of a statutory rule or regulation is alleged by the petitioner.
3. Where public law element is involved which, the party seeks to invoke.
4. Where breach of a contractual obligation is alleged which arises only out of the terms of the
contract.
Conclusion
Sovereign immunity as a defence was neither available where the State was involved in
commercial or private undertaking nor isitavailablewhereitsofficersareguiltyofinterfering
with life and liberty of a citizen not warrantedbylaw.Inbothsuchinfringements,theStateis
vicariouslyliableandbound,constitutionally,legallyandmorally,tocompensateandindemnify
the wronged person. The doctrine of sovereign immunity has no relevance in the present-day
context when the concept of sovereignty itself has undergone drastic changes. An exercise of
political power bytheStateoritsdelegatedoesnotfurnishanycauseofactionforfilingasuit
fordamagesorcompensationagainsttheStatefornegligenceofitsofficers.Theoldandarchaic
concept of sovereignty thus does not survive. Sovereignty now vests in the people. The
legislature,theexecutiveandthejudiciaryhavebeencreatedandconstitutedtoservethepeople.
Infact,theconceptofsovereigntyintheAustiniansense,thatkingwasthesourceoflawandthe
fountain of justice, was never imposed in the sense it was understood in England upon our
countrybytheBritishrulers.Nocivilisedsystemcanpermitanexecutivetoplaywiththepeople
ofitscountryandclaimthatitisentitledtoactinanymannerasitissovereign.Theconceptof
public interest has changed with structural change in society. With thiswebringanendtothe
liability of the state in torts and contract. Thank you very much.
General Statutory Remedies against Administrative Action
Introduction
Hello viewers, I am Dr. Amit Kumar. Today, the topic of my lecture is General Statutory
Remedies against Administrative Action -Administrative lawisthatbranchoflawwhichdeals
with powers,functionsandresponsibilitiesofvariousorgansofthestate.IvorJenningsdefined
administrative law as the law relating to administration. It determines the organs, powers and
duties of administrative authorities. Administrative law is the by-product of ever-increasing
functionsoftheGovernments.Themodernstateis,therefore,strivingtobeawelfarestate.Ithas
taken the task to improve the social and economic conditionofitspeople.TheAdministrative
authorities are vested with vast discretionary powers in modern democratic countries. The
exerciseofthosepowersoftenbecomesprejudicedintheabsenceofspecificguidelinesetc.The
needforacontrolofthediscretionarypowersisessentialtoensurethat“RuleofLaw”existsin
all governmental actions. The judicial review of administrative actions in the form of writ
jurisdictionistoensurethatthedecisionstakenbytheauthoritiesarelegal,rational,proper,just,
fair and reasonable.
General Statutory Remedies against Administrative Action
AremedygivenunderastatuteauthorityiscalledStatutoryRemedy.Statutoryremediesarenot
equivalent to constitutional remedies. As a substantive remedy, relief, which could not be
achievedthroughawrit,couldbeprovidedi.e.,enforcementofpaymentofmoney.Manyofthe
remedies of privatelaw,suchasacivilsuitforseekingdamages,aninjunctionoradeclaration
are extended to public law as well.
Statutory remedies may be divided into following:
⮚ Civil Remedies (General and Specific)
⮚ Criminal Remedies. (Punishments, monetary compensation)
⮚ General Statutory Civil Remedies
Ordinary remedies can be obtained against the administration by the aggrieved person in the
ordinarycourtsofthelandinexerciseofthepowerunderthestatutorylawoftheland,tocontrol
administrative action. The following remedies are available to the person aggrieved by the
administrative action:
⮚ Injunctions (Perpetual/Mandatory, Temporary)
⮚ Declarations
⮚ Specific Performance
⮚ Restitution
⮚ Recovery of Legal Costs i.e., Advocate Fee, Court Expenses etc.,
⮚ Recovery of Possession of Property
⮚ Damages- Liquidated, Unliquidated & Statutory etc. (Including Nominal,
Substantial, Penal or Exemplary etc.)
Definition of Injunction
Aninjunctionisanorderofacourtaddressedtoapartytoproceedingsbeforeitrequiringhimto
refrain from doing or to do as a particular act.
Injunctionisanequitableremedy,bywhichone,ajudicialprocesshasinvaded,oristhreatening
to invade the rights, legal or equitable,ofanotherisrefrainedfromcontinuingorcommencing
suchwrongfulact.Injunctionisacoerciveremedybutnotarigidoneandcanbetailoredtosuit
the circumstances of each individual case. Courts can use injunctions to review all action:
judicial, quasi-judicial, administrative, ministerial or discretionary.
Types of Injunctions: Injunction is divided into two categories:
⮚ Prohibitory Injunction
⮚ Mandatory Injunction
Prohibitory Injunction
ProhibitoryInjunctionforbidsadefendanttodoawrongfulactwhichwouldbeaninfringement
of some right of the plaintiff, legal or equitable. It may further be divided into following kinds:
⮚ Temporary Injunction
⮚ Perpetual Injunction
Temporary Injunction
Temporary Injunction is granted as an interim measure which is preventive in character. It is
granted on an application of the plaintiff to preserve status quo until the case is heard and
decided. Section 37 of the Specific Relief Act, 1963 which reads as:
“Temporaryinjunctionsaresuchastocontinueuntilaspecifiedtime,oruntilfurtherorderofthe
court and they may be granted at any stage of a suit, and are regulated by the Code of Civil
Procedure, 1908”.
Temporary injunction is an interim remedy that is raised to reserve the subject matter in its
existingconditionandwhichmaybegrantedonaninterlocutoryapplicationatanystageofthe
suit. Its purpose is to prevent the suspension of the plaintiff’s rights. Section 94 of the CPC
provides the supplemental proceeding, wherein Section 94 (c) and (e) of Code of Civil
Procedure, the Court may grant a temporary injunction or make such other interlocutory orders.
Furtherthead-interiminjunctionisgrantedduringthependencyoftheapplicationandoperates
till the disposal of the application. In Ramrameshwari Devi vs. Nirmala Devi and Ors., the
Supreme Court held that the Court should be extremely careful and cautious while granting
ex-parte ad interim injunctions orstayorders.Ordinarilyashortnoticeshouldbeissuedtothe
Defendant/Respondent and only after hearing both the parties concerned Court can pass the
appropriate orders. For the grant of temporary injunction, three conditions are required to be
satisfied:
⮚ Prima Facie Case
⮚ Irreparable Injury
⮚ Balance of Inconvenience
In Metropolitan Asylum District v. Hill, the relevant Act empowered the authority to build a
hospitalforchildrenfortreatmentofthesmallpox.Aprohibitoryinjunctionwasobtainedbythe
neighbouringinhabitantsonthegroundofnuisance.InthecaseofAdministratorCityofLahore
v. Abdul Majid, the plaintiff submitted a building plan to the municipal authorities for the
necessarypermission.Permissioninitiallygrantedbutthereafterrevokedwhileitwasgrantedin
respect of the other buildings. The order of mandatory injunction was issued against the
municipal authorities. An injunction is a discretionary remedy but it must be exercised
judiciously.Theplaintiffmustbe“anaggrievedperson.”Sincethisisanequitablerelief,itmay
not be granted if the conduct of theplaintiffdisentitleshimfromtheassistanceofthecourtor
alternative remedy is available to the plaintiff.
Perpetual Injunction
Perpetual Injunction is granted on the final disposal of the case on merits to prevent the
infringementofthoserightstowhichtheplaintiffisentitledpermanently.Sections36-42ofthe
Specific Relief Act, 1963 deals with permanent injunction. Section 38 of Specific Relief Act
pertains to perpetual injunction. In case of threat to the plaintiff’s right to, or enjoyment of
property, by the defendant, the court may grant perpetual injunction in the following
circumstances:
⮚ Where the defendant is a trustee of the property for the plaintiff
⮚ Wherethereexistsnostandardforascertainingtheactualdamagecaused,orlikely
to be
⮚ caused, by the invasion;
⮚ Wheretheinvasionissuchthatcompensationinmoneywouldnotaffordadequate
relief
⮚ Where the injunction is necessary to prevent multiplicity of judicial proceedings
Mandatory Injunction
Mandatory Injunction not only forbids a person from continuing with a wrong actionbutalso
imposesadutyonhimtodoapositiveact.Thecourtmay,atitsdiscretion,granttheinjunction
under section 39 of the Specific Relief Act as a final decision.
Under Section 39, the court may grant a mandatory injunction as afinaldecisiononacaseto
preventapersonfromcontinuingwithawrongactionasalsotocompelhimtodoapositiveact,
necessarytoremedytheharmalreadydone.Therefore,animprovementauthoritycanbeissueda
mandatory injunction notonlytorestraintheconstructionofabuilding,ifitinterfereswiththe
easementary rights of the plaintiff, but also to pull down the construction already made in
contravention thereof.
ThecourtunderSection41maygrantaninjunctionanditisprovidedinclause(e)ofSection41
that aninjunctioncannotbegrantedtopreventthebreachofacontract,buttheperformanceof
whichcouldnotbespecificallyenforced.‘Therefore,wherethereisanaffirmativeagreementto
do a certainact,coupledwithanegativeagreement,expressorimplied,nottodoacertainact,
and the court cannot compel the specific performance of theaffirmativeagreement,itcanstill
grant an injunction to perform the negative agreement.Supposeacontracttoplaythepianoin
B’s orchestra in a particular hotel for thewholesummerseasonandnottoplaythepianowith
any other orchestra elsewhere.Bcannotobtainspecificperformanceofthecontracttoplaythe
pianoinhisorchestrabyanaffirmativeinjunctionbecausethecontractofpersonalserviceisnot
specifically enforceable. B is still entitled to get an injunction restraining A from playing the
piano at any other hotel.
Who is entitled to seek Injunction?
Injunction can be granted on the petition ofapersonwhohasapersonalinterestinthematter.
This is interpreted to mean that either there must be an existing obligation in favour of the
applicant, or the person has suffered someinjury.Doesthismeanthatnopersoncanenforcea
publicrightwhichheshareswitheverybodyelse?Insuchsituations,Section91,CPCprovides
thatanytwopersonswiththeconsentoftheadvocateGeneralorbyleaveofthecourtmayfilea
suit for the removalofapublicnuisance,whetherornottheyhavesufferedspecialdamage.In
thismannerapersoncan,throughinjunction,enforcehispublicrightagainstanyadministrative
authority for doing or refraining from doing certain acts which cause any injury, damages or
annoyance to the public.
Injunctionisaneffectivemethodofjudicialcontrolofadministrativeactionwheretheauthority
has acted without jurisdiction, or has abused its jurisdiction, or has violated the principles of
natural justice. Injunction is also an effective instrument in controlling the exercise of
administrative discretion. Therefore, if the administrative authority has either not exercisedits
discretionatall,orhasexerciseditatthediscretionofsomeotherbody,oritisarbitrary,orhas
beenexercisedonextraneousconsiderations,orforanimproperpurpose,orwhereitsexerciseis
mala fide, injunction would lie. Ganga Narain v. Municipal Board,Cawnporeisanillustrative
case on the efficacy of injunctive relief in cases of abuse of discretion by the administrative
authority. In this case, theKanpurMunicipalityconstructedamarket,butbecauseofhighrent,
tradersshiftedtoanoldmarketownedbytheplaintiff.Inordertoearnprofitforitsownmarket,
theMunicipalityservedanoticetotheplaintifftoclosedownthemarketasitwasanuisance.In
a suit filed by the plaintiff, the court held that the market was not a nuisance. Thereafter, the
Municipality got the regulation amended and secured for itself the power to close down any
market on the grounds of nuisance. The plaintiff was prosecuted for notremovinganuisance,
i.e., the market. In a suit, the plaintiff claimedtheremedyofinjunctionanddeclarationonthe
ground of abuse of discretion which was granted. In practice, injunction has proved to be a
suitable remedy for the control of administrative action, but it is not frequently resorted to
becausepeoplehaveplacedmuchfaithinextraordinaryremedies.Iftheremedyofinjunctionis
tosecureitsdueplace,itisnecessarythateverypersonshouldbeallowedtoestablishhisrights
without showing special injury or the consent of the Advocate General.
Ingrantingrelief,courtshaveconsistentlytakentheviewthatlawmustalwayshaveprecedence
over any consideration of administrative convenience. B. Prabhakar Rao v. State of A.P. isan
illustrative case on this point. In this case, the reduction in retirement age for government
servantsfrom58to55yearshadbeenchallengedbythosewhohadbeenretiredunderthenew
dispensation. However, later on the retirement age was again raised to 58 years. Thequestion
before the court was whether petitioners were entitled to reinstatement with back wages? The
contentionofthegovernmentwasthattherewouldbeconsiderablechaosintheadministrationif
those already retired were again re-inducted into the service. The court negativated the
contention by holding that “those thathavestirredupahornet’snestcannotcomplainofbeing
stung” thus, it was firmly established that the Constitution must always take precedence over
administrative convenience.
Insomecountries,agreateruseofinjunctionisbeingmadeinpubliclaw.IntheUSandEngland
evenincasesofadministrativerule-making,thecourtexaminesanapplicationforinjunctionto
find out if the rule making power has been properly exercised or not. As mentioned earlier,
withinthefederaljurisdictionintheUS,writshavebeencompletelyreplacedbyinjunctionand
declaration.InEngland,injunctionisfreelyusedagainstadministrativeauthorities.InBradbury
v. Enfield London Borough Council, an injunction was granted against the local education
authority on an application by a parent restraining the authority from converting a grammar
schoolintoacomprehensiveschoolinviolationoftheEducationAct,1944,andthefactthatthe
parent had no legal right to enforce was not treated as a disqualification.
Declaratory Relief
A declaratory action may be defined as a judicial remedy which conclusively determines the
rights and obligations of public andprivatepersonsandauthoritieswithouttheadditionofany
coercive or directory decree.
In the words of Jennings, declaratory actionisasymbolofthe20thcenturyconceptionoflaw
becauseitishighlydemocratic.Inanagewheremoreandmoreanindividual’sactionisliableto
bringhiminconflictwiththeadministration,declaratoryactionsatisfiestheneedofasimplebut
all-embracing method of redress against the administration. Sometimes coercive relief is
unnecessaryagainstpublicauthoritieswheremerelyadeclarationisenoughtokeeptheauthority
within the bounds of legality. In England, under the Crown Procedure Act, 1947 every claim
againstthegovernmentmaybebyadeclaratoryaction.Beinganordinarylawremedy,itisfree
from the technicalities of writs relating to locus standi, choice of remedy, character of
administrative action and the nature of the administrative authority.
ThehistoryofdeclaratoryactioninIndiabeginswiththeActof1854bywhichtheprovisionsof
the Chancery Procedure Act, 1852 relating to the grant of declaratory relief were made
applicable to the Indian Supreme Court in Presidency Towns. At that initial stage, courts
declaredtherightsofpartiesasintroductorytothedirectoryreliefwhichtheyultimatelygranted.
In 1859, the same provisions found place in Section 19 of theCivilProcedureCode,1859.In
1877, this declaratoryreliefwastransferredtoSection42oftheSpecificReliefAct,1877and,
thereafter, to sections 34 and 35 of the specific Relief Act, 1963.
Conditions for the Grant of Declaratory Relief
⮚ The person must be entitled to a “legal character” or a “right to any property”.
⮚ There must be some danger or detriment to such right or character.
⮚ Plaintiff must seek further relief if he is entitled to it.
InthestateofM.P.v.MangilalSharma,thecourtheldthatadeclaratorydecreemerelydeclares
the right of the decree-holder and does not direct anybody to do or refrain from doing any
particular act or thing; hence, a declaratory decree is beyond the purview of execution
proceedings.Inthiscase,therespondenthadfiledasuitfordeclarationunderSection34ofthe
Specific Relief Act, 1963 that he continues to be in service but did not claim consequential
benefits like arrears of salary, etc. The court granted a declaration but the respondent in
execution proceedings had claimed consequential benefits.
In Veruareddi Ramaraghava Reddy v. Konduru Seshu Reddy, the Supreme Courtaddedanew
dimensiontothisremedybyallowingadeclarationfortheenforcementofapublicright.Inthis
case, the petitioner prayed for a declarationtotheeffectthatcertainpropertiesbelongedtothe
deity.Thoughthisclaimwasnotforalegalcharacterorarighttoproperty,thedeclarationwas
given.Theremedyisalsoavailabletoataxpayerforgettingadeclarationagainstamunicipality
for misapplication or misappropriation of property. But whether a declaration could be given
regarding the unconstitutionality of astatuteisstillunclear.Ifthelimitationsof“consequential
relief”, “legal character” and “property rights” areeliminatedfromtheprecinctsofdeclaratory
relief, it would do the work of certiorari, mandamus, prohibition and quo warranto insofar as
judicialcontrolofadministrativeactionisconcerned.Declarationandinjunctionmaybeproper
relief in a petition under article 32 of the consideration.
Declaration is a discretionary remedy and may be refused if it would be infructuous, or if an
adequate alternative exists, or on other equitable considerations.
Suit for Damages
Wheneveranypersonhasbeenwrongedbytheactionofanadministrativeauthority,hecanfile
a suit for damages against such authority.Suchasuitisfiledinthecivilcourtoffirstinstance
and its procedure is regulated by the CPC.
⮚ Remedies under Contract
⮚ Compensation for Loss or Damage by Breach of Contract
⮚ Liquidated Damages
⮚ Specific Performance
⮚ Cancellation
Conclusion
Statutoryremediesconferredbythedifferentstatutesforthecorrectionofadministrativeactions
ordiscretionvestedinthem.Administrativeactionshouldbebaseduponsoundlegalprinciples.
Hereitisimportanttoemphasisethattheabsenceofarbitrarypoweristhefirstessentialofthe
rule of law upon which the whole legal system is based. The decision of administrative
authoritiesmustbebasedonsomeprinciplesandrules.Ifadecisionisnottakenonthebasisof
any principles or rules then such decision is arbitrary and is taken not in accordance with the
Rule of Law.
Nooneissupremetothelaw.Thus,thestatutoryremediesprovidedunderthedifferentstatutes
operate as a check and keep the administration of the government within the bounds of law.
Statutory remedies are judicial reviews of administrative actions. It restricts policy decisions
which are unreasonable, unfair and against public interest. With this, we bring an end to the
General Statutory Remedies Against Administrative Action. Thank you very much.
Governmental Privileges Position in England, USA and India
Introduction
Administrative lawisallaboutindividualsononesideandinstitutionsontheotherside.When
therightsofthecommonmanareviolatedbytheadministration,thepeoplehavetherighttosue
the administration in the competent court of law. The courts have comprehensive power of
conducting judicial review of administrative action.Intheproceedingsbeforethecourtoflaw,
the administration enjoys certain privileges where the common man has no rights and such
privileges can be listed below:
Immunity from Statute Operation
WeknowthatstatuteispassedbytheStateitselfthroughitslegislatureandwhenstatutecomes
intooperation,wehavetoseewhetherthisisequallyapplicabletothecitizens,totheinstitutions
orwhat.Herethequestioniswhetherthestateissubjecttothesamerightsandliabilitieswhich
thestatuteimposesonthepersonorshouldthestatebetreatedasanindividualbeforethecourt
of law or should have given special treatment
Law in England
InEngland,thecrownenjoysthecommonlawprivilegethatitisnotboundbyastatuteunlessit
isexpresslynamedorisboundbythenecessaryimplicationbasedonthemaxim"akingcando
no wrong." The Crown Proceeding Act, 1947, provides that a statute binds the crown as
expressly provided.
Law in USA
The commonlawofEnglandpertainingtotheprerogativesinfluencedsomeofthedecisionsin
coming to the conclusion by the Supreme Court of the U.S. In USA vs. Reginald, P. Wittek
(1949),thequestionwaswhethertheDistrictofColumbiaEmergencyRentActappliedornotto
thegovernment-owneddefencehouse.Thecourtnotonlyrelieduponthisrulebutalsoreached
the conclusion that the U.S. was exempted from the operation of this act by necessary
implication.
Law under Indian Law
Theruleofconstructionisthatthecrownisnotboundbyastatutesavebyexpressprovisionor
by necessary implication wasrejectedbytheapexcourtintheyear1966.So,hereyoucansee
that the law in Indiaismoreliberal.InthecaseoftheStateofWestBengalvs.Corporationof
Calcutta, A.I.R 1967, the court held that we have no crown. The archaic rule based upon the
prerogative and perfection of the crown has no relevance to a democratic republic. It is
inconsistent with the law based on the “Doctrine of Equality”.Thecourtfurtherobservedthat
normal construction, namely that a general act applies both tothecitizensaswellasthestate,
unless it is necessary or expressly exempts the state from its operation.
UOIvs.Jubbi,AIR1968,wherethecourtheldthatastatuteappliestoastateasmuchasitdoes
to a citizen, unless expressly or bynecessaryimplication,itexemptsthestate.So,weseehere
that the state enjoys protection as and when it requires it in larger public interest.
Promissory Estoppel
Withthevestingoflargediscretionarypowersintheadministration,ithasbecomeincreasingly
common for theadministrationtomakeitsdiscretionorinterpretthelawbeforeanoccasionto
do so in a particular case actually arises. Sometimes the administration makes promises or
announces schemes or policy decisions.Thequestionariseshowfartheofficialrepresentation,
assurance,promiseoradvicecanberelieduponbytheIndividual.Istheadministrationboundby
its representation when some persons have acted upon it? What are the consequences if the
advice turns out to be a mistake? Is the administration stopped later from going back on the
advice or promise? The basic principle of estoppel is that a person whobysomestatementor
representationorfactpromisesandcausesanothertoacttohisdetrimentinrelianceonthetruth
of it is not allowed to denyitlater,eventhoughitiswrong.Itisoftendescribedastheruleof
evidence, butmorecorrectly,theprincipleoflaw.Thedoctrineofpromissoryestoppeliswider
than the doctrineofestoppelembodiedinsection115oftheIndianEvidenceAct.Thebasisof
this doctrine is the imposition of equity also known as "Equitable Doctrine."
In the case of MunicipalCorporationofBombayvs.SecretaryofState,thecourtheldthatthis
doctrine is not inhabited with the same limitations as estoppel; it is an equitable principle
evolved by the courts for doing justice, andthereisnoreasonwhyitshouldbegivenonlyfor
limited application by way of defence.
Applicability of Promissory Estoppel in England
The doctrine of estoppels was successfully appliedinEngland.Someofthecaseswhereithas
been applied are Robertson vs. Minister of Pensions, and Lever Limited vs. Westminster
Corporation.
However, the court in England has not applied the doctrine of estoppels where there was an
assurance against the statuteandstatutorybodyofthepublicauthoritytoexercisethestatutory
discretion.
Applicability of Promissory Estoppel in the USA
The doctrine ofpromissoryestoppelshasdisplacedremarkablyvigourandvitalityinthehands
of the American Judges and is still rapidly developing and expanding in the United States.
However, the basic requirement for invoking this principle must be present, namely, that the
factual situation should be such that injustice can be avoided only by the enforcement of the
promise. The protagonists of the view that promissory estoppel cannot apply against the
Government or Public Authority.
Promissory Estoppel in India
In India not onlyhasthedoctrineofpromissoryestoppelbeenadoptedinitsfullnessbutithas
beenrecognizedasaffordingacauseofactiontothepersontowhomthepromiseismade.The
requirementofconsiderationhasnotbeenallowedtostandinthewayofenforcementofsucha
promise. The traditional view which has been adopted in India is that the government is not
boundbytheadvice,representation,orinterpretationoflawmadeonitsbehalfbecausewehave
the doctrine of ultra vires.
In modern view in the case of UOI vs. Anglo Afghan Agencies Ltd. AIR 1968 SC 718, the
Supreme Court applied the doctrine of promissory estoppel against the government on the
equitable ground.
Later, in the case of Century Spinning and Manufacturing Company Ltd. vs. Ulhasnagar
Municipal Council AIR 1971 SC, it washeldthatthedoctrineofpromissoryestoppelwasalso
applicable against public authorities like a municipal corporation.
A landmark casedealingwithpromissoryestoppelisP.SugarMillsvs.StateofUPAIR1979
SC. The law relating to promissory estoppel is finally settled and laid down in this landmark
judgement. This judgement secured three things:
⮚ The doctrine could be used as a shield orasasword.Inotherwords,itcouldbeusedasa
defence and also give cause of action to the promise.
⮚ Thedoctrineisnotbasedonanycontractand,therefore,evenwhenthegovernmentcontract
is void for non-compliance with Article 299, the government is still bound by estoppels.
⮚ The doctrine cannot be pleaded on thegroundsofexecutivenecessityorfreedomoffuture
executive action.
When Doctrine can be Denied?
Therearecertaincircumstanceswhenthisestoppelcanbedenied.Althoughweseethisdoctrine
is very useful from the citizen point of view and it can be applied in the case of public
institutions, it has its own limitations.
Public Interest – When the government takes some action by defining its own promise and
protects the large public interest. Therefore, the public always comes to the rescue of the
governmentbecausethegovernmentisthebodywhichhastoseethelargerpublicinterestofthe
masses.
Legislative,Executive,andSovereignFunctions–Forsuchfunctions,itcanalsobeexempted
because if these are sovereign functions, these are mandatoryforthestate,forthegovernment
anditsgovernmentmandatedtotakesuchactions. Itcanbeforsecrecy,forsecurityorformany
such reasons and that’s why estoppel cannot be applied.
Promises That are againsttheLaw–Wehavealawoftheland.Wehaveconstitutionallaw.
Andifsomegovernmentofficialhasmadethenotificationandthatnotificationgoesagainstthe
spirit of the notification, theConstitutionofIndiaoranylawpassedbythelegislaturethenthe
government is not bound to follow that by such representation or by such promise.
Fraud – If some fraud has been committed by the citizens or the government official, it is a
crime. Even if it is a civil wrong, it is to bedealtwithunderthelaw.Governmentasapublic
body cannot be bound by this.
Hardship,SympathyandChangeofPolicyetc.–Weknowthatthegovernmentisthelargest
public body which has to take care of its owncitizens.So,attimes,thegovernmentconsiders
certain casesonasympatheticview,andthegovernmentconsiderscertaincasesonmanyother
considerations as a matter of public policy. So, if the estoppel is binding the government and
stopping the government from such consideration which may go against the public policy or
which may stop the government from taking the sympathetic point of view then also the
government is not bound by the estoppel.
Doctrine of Waiver
Waiver means the abandonment of the right by an individual which gives more power to the
publicauthoritythanitlegitimatelypossesses.Basedontheprinciplethatamanisthebestjudge
ofhisownrights,andthathecanchoosetoabandonhisrightsattimes.Nowthequestionarises
–cancitizensabandontheirownrights?Publicauthoritiescanpressurisethecitizensbyoneway
ortheothertotakeaU-turnandcantakebacktheirownclaimsandsaythatwehavewaivedoff
rights.Ifindividualsareweakandpublicinstitutionsarestrong,insuchacase,thewaiverwould
bemostsuitableandwillbeanapplicabledoctrineincaseofpublicinstitutions.InthecaseofS.
K. Tikara vs. State of MP, AIR 1977, held that waiver is an intentional relinquishment of the
unknown right. There can be no waiver unless the personagainstwhomthewaiverisclaimed
has full knowledge of his rights. It means that the intention of the court is to strengthen the
citizens itself and strengthen the individuals itself.
Waiver and Estoppel
Waiver, in its effect, is akin closely to estoppel because in case of waiver, an individual
relinquisheshisright,abandonshisrightandincaseofestoppelalsowaivercanbeappliedasan
estoppeltoacitizen.So,therefore,thesetermsaresynonymstoeachotherasfarasindividuals
areconcerned.Anditcanbeappliedagainsttheindividuals.So,incaseofIndia,thishastobe
applied very cautiouslyasrightlypointedoutbythehonourableSupremeCourtthatweshould
not blindly follow the doctrine of waiver because here citizens are illiterate and not aware of
theirrights.Therearecertainsituationsandtherearecertainrightswhichcannotbewaivedoff.
Our Constitution saysthatfundamentalrightscannotbewaivedoffbecausefundamentalrights
are very basic to life. If the basics of life are waived off then nothing survives. The
relinquishment of statutory rights depends upon the factor of the nature of the right.
Privilege to Withhold the Documents
Whenacitizenfileslegalproceedingsagainstthestateonanygroundandthecourtrequiresthe
government to produce the documents for a fair decision, the government replies that the
particulardocumentcannotbeproducedduetopublicinterestornationalsecurity.InIndiathisis
known as withholding of documents, in the USA as an executive claim and in England as a
crown privilege. Meaning thereby that the state or the government has some privilegesinthis
regard.
Law in England
Law in England is known as "Crown Privilege". The government frequently applies this
principle,butonthegroundsofthewell-establishedmaximthatthepublicwelfareisthehighest
law granted on the grounds of national defence, cabinet minutes, foreign affairs, etc.
In Duncan vs. Cammell, the court heldthatdocumentscanbewithheldifthedisclosureofthe
document injures (a) the public interest or (b) ensures the proper functioning of the public
services(c)statementbyaministeronaffidavitissufficient.However,thisthirdreasonhasbeen
deleted in the latter case of Conway vs. Rimmer, where it was held that the statement of
ministers cannot be accepted as conclusive because it is in the individual capacity.
Law in USA
Law in the USA privileged to withhold documents is known as an “executive privilege”. By
virtueofthetheoryofchecksandbalancesinallthreeorgansofthegovernment.IntheUSA,the
judiciary never lost control overexecutivepowers.So,unlikeEngland,thisprivilegeisalways
subject to judicial interpretation.
The Court in the USA, no doubt, allows the government to withhold the documents on the
well-established grounds of national security, national defence, and foreign affairs, but in
exceptional and genuine cases only. In U.S vs. Reynolds, the government claimed privileges
pertaining to an investigation report regarding the crash of a military aircraft and held it as a
matter of privilege.
Position in India
In India, the privilege to hold documents is claimed on the basis of section 123 of theIndian
Evidence Act. Section 123 states that no one shall be permitted to give any evidence derived
fromunpublishedofficialrecordsrelatingtotheaffairsofthestateexceptwiththepermissionof
theofficerattheheadofthedepartmentconcerned,whoshallgiveandwithholdsuchpermission
ashethinksfit.However,theactof1872providesthatthecourtalsohaspowerinthisregard.In
Section162,awitnesssummonedtoproduceadocumentshall,ifitisinhispossession,bringit
tothecourt,notwithstandinganyobjectionwhichtheremaybetoitsproductionoradmissibility.
Thecourtwillexaminetheissueandwillfinallydecidethecourseofaction.InStateofPunjab
vs. Sodhi Sukhdev Singh AIR 1961, the court granted the privilege to the government and
observed that the public interest is implicit in section 123 and indeed the sole foundationand
document could be withheld in the public interest.
In the case of S. P. Gupta vs. the President of India, the court observed that the expression
"affairsofthestates"shouldreceiveanarrowmeaning.Meresecrecyofthegovernmentisnota
vital public interest so as to prevail over the most imperative demands of justice. The court
enjoys the power to inspect the documents in question and then decide whether they relateto
affairsofstateortheirexclusioninthepublicinterest.Ifthecourtotherwisedecidesorcomesto
a conclusion then such a document is being made public.
Privileges under the Code of Civil Procedure:Notice
Notice means whenever a citizen or an individual wants to file a case against the state or
government, it cannot be done immediately; it needs some time. Section 80 of the Civil
ProcedureCodegivessuchprotectiontothegovernmentthatifanindividualwantstofileacase
against the government, it needs minimum two months’ notice, and after that period expires;
only then the case can be filed otherwise cannot be filed. Government is a large functionary.
Government doesn’t function in one individual or in one office; the government has many
offices. In one of the actions of the government, many offices areinvolved;manyofficersare
involved. So, therefore, to reachforthespeedytrialinthecourt,thegovernmentfilesaproper
reply.Inmostofthecases,almostinallcases,thegovernmentdoesnotreplytoanoticetofilea
case before the honourable court within twomonths.Intheend,theindividualiscompelledto
file a casebeforethecourtbywritingthat“Ihavewrittensixtydaysearlier,waitedforitandI
have not received any reply. Therefore, the suit is filed”. Law Commission of India has also
submittedits100th reportwhichrecommendedthatthissixtydays’periodisprovedtobeagainst
the individual. Therefore, this sixty days’ period should not be a requirement any more.
Conclusion
Theseprivilegestotheadministrationarepronetobetheclogontheindividualrights.Thestate
is the largest violator of the fundamental rights of the citizen; notonlyfundamentalrightsbut
otherrightsalso.Citizensfileamaximumnumberofcasesagainstthepublicauthorities,where
the state or the government is represented. So, if such privileges continue to prevail, then the
government has an edge and citizens’ rights continuetobetreatedassecondaryindemocracy.
The rights of the citizens are primary. We hope and trust that these privileges will further get
minimum and strict interpretation in judicial parlance; and maximuminterpretationisgivento
the citizens’ rights. Thank you very much.
Right to Information Act, 2005
Introduction
TherighttoinformationisimplicitlyguaranteedbytheConstitution.However,withaviewtoset
out a practical regime of securing information, the Indian Parliament enacted the Right to
InformationAct,2005andthusgaveapowerfultooltothecitizenstogetinformationfromthe
governmentasamatterofright.Thislawisverycomprehensiveandcoversalmostallmattersof
governance and has the widest possible reach, being applicable to government at all levels-
union, state and local as well as recipients of government grants.
Historical Background
The right to information gained power when the Universal Declaration of Human Rights was
adoptedin1948providingeveryonetherighttoseek,receive,informationandideasthroughany
mediaregardlessoffrontiers.TheInternationalCovenantonCivilandPoliticalrights1966states
that everyone shall have the right to freedom of expression, the freedom to seek and impart
informationandideasofallkinds.AccordingtoThomasJefferson“Informationisthecurrency
of democracy” and critical to the emergence and development of a vibrant civil society.
However, with a view to set out a practical regime for the citizens to secure information asa
matterofright,theIndianParliamentenactedtheRighttoInformationAct,2005.GenesisofRTI
law started in 1986, through judgement ofSupremeCourtinMr.KulwalVs.JaipurMunicipal
Corporation case, in which it directed that freedom of speech and expression provided under
Article 19 of the Constitution clearly implies Right to Information, aswithoutinformationthe
freedom of speech and expression cannot be fully used by the citizens.
Objectives of Right to Information Act, 2005
⮚ To empower the citizens
⮚ To promote transparency and accountability
⮚ To contain corruption
⮚ To enhance people’s participation in democratic process
Factors Responsiblefor Adoption of Information Act
⮚ Corruption and scandals
⮚ International pressure and activism
⮚ Modernization and the information society
Features of Right to Information Act, 2005
Acitizenhasarighttoseeksuchinformationfromapublicauthoritywhichisheldbythepublic
authority or which is held under its control.Thisrightincludesinspectionofwork,documents
and records; taking notes, extracts or certified copies of documents or records; and taking
certifiedsamplesofmaterialheldbythepublicauthorityorheldunderthecontrolofthepublic
authority.ItisimportanttonotethatonlysuchinformationcanbesuppliedundertheActwhich
alreadyexistsandisheldbythepublicauthorityorheldunderthecontrolofthepublicauthority.
ThePublicInformationOfficerisnotsupposedtocreateinformation;ortointerpretinformation;
or to solve the problems raised by the applicants; or to furnish replies to hypothetical questions.
TheActgivesthecitizensarighttoinformationatparwiththeMembersofParliamentandthe
MembersofStateLegislatures.AccordingtotheAct,theinformationwhichcannotbedeniedto
theParliamentoraStateLegislature,shallnotbedeniedtoanyperson.Acitizenhasarightto
obtain information from a public authority in the form of diskettes, floppies, tapes, video
cassettes or in any other electronic mode or through print-outs provided such information is
alreadystoredinacomputerorinanyotherdevicefromwhichtheinformationmaybee-mailed
or transferred to diskettes etc.
Theinformationtotheapplicantshouldordinarilybeprovidedintheforminwhichitissought.
However, if the supply of information sought in a particular form would disproportionately
diverttheresourcesofthepublicauthorityormaycauseharmtothesafetyorpreservationofthe
records, supply of information in that form may be denied.
Some Information SeekersrequestthePublicInformationOfficerstoculloutinformationfrom
some document(s) and give such extracted information to them. A citizen has a right to get
‘material’fromapublicauthoritywhichisheldbyorunderthecontrolofthatpublicauthority.
The Act, however, does not require the Public Information Officertodeducesomeconclusion
from the ‘material’ and supply the ‘conclusion’ so deduced to the applicant. It meansthatthe
PublicInformationOfficerisrequiredtosupplythe‘material’intheformasheldbythepublic
authority,butnottodoresearchonbehalfofthecitizentodeduceanythingfromthematerialand
then supply it to him or her, as the case may be.
Information Exempted from Disclosure
⮚ Sub-section (1) of section 8 andsection9oftheActenumeratethetypeofinformation
which isexemptedfromdisclosure.Sub-section(2)ofsection8,however,providesthat
information exemptedundersub-section(1)orexemptedundertheOfficialSecretsAct,
1923 can be disclosed if public interest in disclosure overweighs the harm to the
protected interest.
⮚ The information which, in normal course, is exempt from disclosure undersub-section
(1) of Section 8 of the Act, would cease to be exempted if 20 years have lapsed after
occurrenceoftheincidenttowhichtheinformationrelates.However,thefollowingtypes
ofinformationwouldcontinuetobeexemptandtherewouldbenoobligation,evenafter
lapse of 20 years, to give any citizen:
⮚ Information disclosure of whichwouldprejudiciallyaffectthesovereigntyandintegrity
of India, thesecurity,strategic,scientificoreconomicinterestoftheState,relationwith
foreign state or lead to incitement of an offence;
⮚ Information the disclosure of which would causeabreachofprivilegeofParliamentor
State Legislature; or cabinet papers includingrecordsofdeliberationsoftheCouncilof
Ministers, Secretaries and other Officers subject to the conditions given in proviso to
clause (i) of sub-section (1) of Section 8 of the Act.
Supply of Information to Associations etc.
The Act gives the right toinformationonlytothecitizensofIndia.Itdoesnotmakeprovision
for giving information to Corporations, Associations, Companies etc. which are legal
entities/persons, but not citizens. However, if an application is made by an employee or
office-bearerofanyCorporation,Association,Company,NGOetc.indicatinghisnameandsuch
employee/office bearer is a citizen of India, information may be supplied to him/her. In such
cases, it would be presumed that a citizen has sought information at the address of the
Corporation etc.
Time Period for Supply of Information
Innormalcourse,informationtoanapplicantshallbesuppliedwithin30daysfromthereceiptof
applicationbythepublicauthority.Ifinformationsoughtconcernsthelifeorlibertyofaperson,
it shall besuppliedwithin48hours.IncasetheapplicationissentthroughtheAssistantPublic
Information Officer or it is sent to a wrong public authority, five days shall be added to the
period of thirty days or 48 hours, as the case may be.
Ifanapplicantisnotsuppliedinformationwithintheprescribedtimeofthirtydaysor48hours,
as the case may be, or is notsatisfiedwiththeinformationfurnishedtohim,hemaypreferan
appeal to the first appellateauthoritywhoisanofficerseniorinranktothePublicInformation
Officer.Suchanappeal,shouldbefiledwithinaperiodofthirtydaysfromthedateonwhichthe
limitof30daysofsupplyofinformationisexpiredorfromthedateonwhichtheinformationor
decision of the Public Information Officer is received. The appellate authority of the public
authorityshalldisposeoftheappealwithinaperiodofthirtydaysorinexceptionalcaseswithin
45 days of the receipt oftheappeal.Ifthefirstappellateauthorityfailstopassanorderonthe
appeal within the prescribedperiodoriftheappellantisnotsatisfiedwiththeorderofthefirst
appellate authority, he may prefer a second appeal with the Central Information Commission
within ninety days from the date on which the decision should have been made by the first
appellate authority or was actually received by the appellant.
Complaints
IfanypersonisunabletosubmitarequesttoaPublicInformationOfficereither byreasonthat
suchanofficerhasnotbeenappointedbytheconcernedpublicauthority;ortheAssistantPublic
Information Officer has refused to accept his or her application or appeal for forwarding the
same to thePublicInformationOfficerortheappellateauthority,asthecasemaybe;orhehas
beenrefusedtoaccessanyinformationrequestedbyhimundertheRTIAct;orhehasnotbeen
givenaresponsetoarequestforinformationwithinthetimelimitspecifiedintheAct;orhehas
been required to pay an amountoffeewhichheconsidersunreasonable;orhebelievesthathe
has been given incomplete, misleading or false information, he can make a complaint to the
Information Commission.
Importance of Right to Information Act, 2005
⮚ The Right to Information Act,2005didnotcreateanewbureaucracyforimplementing
the law. Instead,ittaskedandmandatedofficialsineveryofficetochangetheirattitude
anddutyfromoneofsecrecytooneofsharingandopenness.Itcarefullyanddeliberately
empowered the Information Commission tobethehighestauthorityinthecountrywith
the mandate to order any office in the country to provide information as per the
provisions of the Act.
⮚ ItempoweredtheCommissiontofineanyofficialwhodidnotfollowthemandate.Right
to information has been seen as the key to strengthening participatory democracy and
usheringinpeoplecentredgovernance.Accesstoinformationcanempowerthepoorand
the weaker sections of society todemandandgetinformationaboutpublicpoliciesand
actions, thereby leading to their welfare.
⮚ Right to information opens up government’s records to public scrutiny,therebyarming
citizens with a vital tool to inform them about what the government does and how
effectively, thus making the government more accountable.
⮚ Improves decision making by public authority by removingunnecessarysecrecywhich
prevails in the offices.
Challenges
Different types of information are sought which have no publicinterestandsometimescanbe
used to misuse the law and harass the public authorities. For example-
● Asking for desperate and voluminous information.
● To attain publicity by filing RTI Applications
● RTI filed as vindictive tool to harass or pressurise the public authority
● Because of the illiteracy and unawareness among the majority of the population inthe
country, the RTI cannot be exercised
● Though RTI’s aim is not to create a grievance redressal mechanism, the notices from
Information Commissions often spur the public authorities to redress grievances
Supreme Court Cases Relating to RTI, 2005
Namit Sharma Vs. Union of India (2013)
In this case, a Public Interest Litigation was filed before the honourable the Supreme Court
saying that Right to Information has a new regime in the offices, in State and Central
Commissions. When it comes to Commissions, there are certain legaltechnicalitieswhichcan
only be understood by the law graduates, lawyer or legally skilled people.
Central Public Information Officer, Supreme Court of India Vs. Subhash Chandra
Agarwal, 2019 SCC (5 Judges Bench)
In this case, the respondent has asked for the information pertaining to the decision-making
process by the Supreme Court Collegium. Though the operation of the order of the Central
Information Commission (CIC) was stayed by the Supreme CourtinDecember2009,thecase
was referred to a larger Bench in 2010 and was pending hearing until August 2017 when a3
JudgeBenchreferredthesametoa5JudgeConstitutionBenchwhichrecentlyheardarguments
in the case and reserved the same for judgement. The issue involved in this case wasthatthe
Court will decide whetherthepublicdisclosureofinformationpertainingtodecisionsmadeby
theCollegium,curtailstheindependenceofthejudiciary?Further,doesSection8(i)(j)oftheRTI
Act exempt the CJI from publicly disclosing information, on the grounds of protecting the
privacy of members of the Collegium?
On 4thApril2019,theConstitutionBenchreservedjudgement.On13November,theSupreme
Court pronounced its judgement. It held that judicial independence does not stand in
contradiction with the need for transparency. It observed that whether or not information is
subject to public disclosure must be decided on a case-by-case basis, by weighing competing
publicinterestclaims.Forexample,therighttoinformationmayhavetobeweighedagainstthe
right to privacy. On thefirstCICorderpertainingtoCollegiumdecision-making,itdirectedits
CPIOtore-examinetherequest,butbytakingintoaccounttheobjections,ifany,bythirdparties,
asstipulatedunderSection11(1)oftheRTIAct.OnthesecondCICorderpertainingtopersonal
assets, the CourtupheldtheDelhiHighCourtjudgementanddirectedtheCPIOtodisclosethe
relevant information to Subash Agarwal.
Reserve Bank of India Vs. Jayantilal N. Mistry (2015)
The issue beforetheCourtinthiscasewaswhethertheReserveBankofIndiaaswellasother
bankscandenyinformationsoughtbythepubliconthegroundofeconomicinterestcommercial
confidence,fiduciaryrelationshipwithotherBankontheonehandandthepublicinterestonthe
other, and if not, to what extent can information be provided by the banks under the right to
InformationAct,2005?Answeringthequestioninthenegative,theCourtheldthattheRBIwas
toactintheinterestofthepublicatlargeforitisthestatutorydutyoftheReserveBankofIndia
to comply with the provisions of the Right to Information Act, 2005. The Court rejected the
argument that information could be withheld in view of the fiduciary relationship with other
banks and held that the RBI does not place itself in a fiduciary relationshipwiththefinancial
institutionsbecause,thereportsoftheinspections,statementsofthebank,informationrelatedto
the business obtained by the RBI are not under the pretext of confidence or trust.
Central Board of Secondary Education & Anr. v. Aditya Bandopadhyay & Ors. (2011)
The question,inthiscase,waswhetherastudent’srighttoinformationunderTheActinvolves
the right to request and evaluate his answer sheets and take certified copies with him? The
CentralBoardofSecondaryEducationstatedthatthereasonitheldtheinformationisthatthere
existed a fiduciary relationship and hence, came under the exemption provisions of Section
8(1)(e) of the RTI Act. FiduciaryRelationshipisdefinedasonepartyhavingconfidenceinthe
otherpartywithregardstohisaffairs,business,andortransactions.Anexaminingbodycannot
be in a fiduciary relationship with reference to students who take the exam. Therefore, there
existed no exemption under the Section, and answer books had to be provided to the student.
Conclusion
Righttoinformationhasbeengiventoeverycitizen,thereforeitmustbeexercisedandusedby
all individuals and citizensasamatteroftheirownrightasallcitizensinthiscountryexercise
theirrighttovote.So,theinstitutionsshoulddevelopasystemwhereindividuals/citizensshould
bepromptedtoaskfortheinformationbecauseiftheindividualdoesn’taskfortheinformation,
thensuchinformationisaskedbytheactivists.Therearenumberofexpertsandactivistsincivil
society who are continuously causing many thingstopublicauthoritiesandpublicofficialsfor
theirpersonalgains.ThiswasnevertheaimofRighttoInformationAct.RighttoInformationis
the best tool in the hands of the citizens. So, we should encourage that every citizen of this
countryshouldseekinformation.Inotherwords,weshouldsaythatRighttoInformationshould
notbeusedtoweakenthePublicInstitutionratheritisforthestrengtheningoftheinstitutions.
Doctrine of Legitimate Expectation
Introduction
Thisdoctrineisthelatestandfreshestadditionasagroundofjudicialreviewofadministrativeactions.Ithasrecentlybeeninventedin
the last part of the 20th century and added to the armoury of the judiciary,andanothercheckhasbeenfoundontheexecutivethat
administrative action can be challenged. What are legitimate expectations? For a minute, if we forget legitimate, then what is an
expectation? Expectation is a desire, is a wish,oryoucanexpectanything,butinlaw,wecan’tsaythatweareexpectinganything
fromthegovernmentorfromthestateandithasbeenfulfilled,andifithasnotbeenfulfilled,wesaythisisourexpectationwhichhas
not been fulfilled. But it isalegitimateexpectation.Alegitimateexpectationmeanswhichhassomegenesisquotaoflaw,whichis
supportedbyrationality,bysomelaw.Itmaybeagainstthelaw,buttherearesomeprecedents,thereissomecustom,thereissome
practise in which it has its roots, and some citizens demand it. Yes, my expectation will be fulfilled because it is based on your
practice,onyourpreviousdecision,oncustom,oranyotherexamplethepersoncanquoteandsaydothisformeaswell.Theremay
belaw,theremaynotbelaw,butyes,itisalegalrightbecauseithasbeengeneratedoutofthelegitimateactionsofthegovernment.It
istheactionsofthegovernmentthathavegiventheexpectationtoaperson,otherwisetheexpectationhasnogroundtostandon.But
whenitislegitimate,itdependsupontheactionofthegovernment.Thenitisaright,basically.Wecancompareittotheexpectations
ofasurgeon.Thesurgeonknowsthatthepatientontheoperationtablehasnohopes,mereexpectations,ifnotlegitimatelygrounded
onsomepractice,thenitcanbetheexpectationofasurgeononwhoseoperationtableapatientislying,andthesurgeonknowsthat
withhisownexpertise,hismedicalknowledge,andwhateverscientificaidshehas,hecan’tsavethepatient.Whatwashisintention?
Hisintentionisalwaystosavethatpatient,andmostofthetime,thatsurgeonsucceeds.Andthatiswhatwesay:ifthegovernment’s
action has been taken in a particular direction, then the respondent, the citizen, is demanding that whatever you have done in the
previous case, do it with me also. If you can’t do this, then I shall be given a hearing. I should be heard, and after that, you site
legitimate reasons, and then it can happen. We can say this legitimate expectation is being grounded on the doctrine of
estoppel becausethegovernmenthastakensomepositiveactioninapreviouscase,andwhenitcomestothenextrespondent,thenext
citizen,thegovernmentsaysno,thegovernmentisboundbyitsownactions.Legitimateexpectationsariseonlyoutofthepracticeof
the government. So, the government has taken a particular decision. Take that decision, in my case, the government is bound by
estoppel. You can’tdifferentiateme.Youcan’tdiscriminateagainstme.So,estoppelisapartoflegitimateaction.Theotherpartis,
yes,thegovernmentisfreetochangethepolicybecausethegovernmenthasmanyconsiderations.Thegovernmenthassympathetic
consideration. The government has security considerations. The government hasprivacyconsiderations.Thegovernmenthasmany
considerations. So, the other part of the legitimate expectation is hearing. If the government wants to deviate from its previous
decision,thenthegovernmentisobligedtogivearightofhearingtothepersonwhoserightisnowbeingdeniedbythegovernment.
That citizen, that respondent wants to know that why my right has been denied, thatcomeoutonlywhenrighttohearingisbeing
given.So,suchisthecaseinthelegitimateexpectation,whichisgroundedonlyontheactionsofthegovernmentandarighthasbeen
given even there is no law specific law to address the grievance of a particular citizen but he can make out his case on the past
practice. Thus,thegovernmentisboundbyestoppelsandtheotherisarighttohear,isafundamentalrighttohearmeandthendeny
me. If these two components are not being made, then a new right has been emerged, that is known as the legitimate expectation.
British Practices
In England intheyear1969,whenthisdoctrinewasemergedbytheHouseofLords,thenthereweretwothreepractices;twothree
events which have taken place:
(1)Therewasalong-standingbenefitwhichwasgiventothedairyfarmers.Governmentwithdrewthatbenefitwithoutgivingthema
hearing.Thentheywereonstrike,andthentheirstrikestretchedforalong,governmentstartedtakingaction.Inthemeantime,they
approachedthecourt.Thecourtcameoutandsaidthat,one,ifthebenefitisbeinggiventothem,itisbeingwithdrawn.Maybeitisa
governmentpolicy,butthefarmersshouldhavebeenincludedintheprocessofdecisionmaking,whichhasnotbeendone.Itistheir
legitimate expectation to continue with the same. Yes, we can change our policy, but they must be involved and given a hearing.
2)Ifthereisademand,ifthereareprotests,thentheyhavealegitimateexpectationnow.Theremustbesomecommitteetoinvestigate
theirdemands,togointoorexaminetheirdemands.Thegovernmentwasnotreadyforthat.Sofinally,thecourtcouldinterveneand
say that in both cases, they have a legitimate expectation to continue. Andifthegovernmentwantstowithdrawtheirbenefit,they
need hearing and at the same time, if there are agitations, then an agitation needs to be investigated, their demands need to be
examined.Iftheyareonprotest,itistheirlegitimateexpectationandgovernmentshouldfulfilthisdoctrine.InEngland,outsideofthe
EuropeanUnion,therearepeople,havebeenvisitingEngland,andwhenevertheyapplyforanoverstay,mostofthepeoplearegiven,
butafewaredenied.Then,thecourtagainsaidthatonceyouextendthevisaofafewpeoplearestayinginthecountry,thenothers
who are being denied, they need to know. It is their right to know why they have been denied, becauseinmanycases,itisbeing
extended. In a few cases, it is not extended. Those few need hearing and they need to know the reasons for the same.
Another case from Australia, which I think will be more explanatory of the legitimate expectation, The Court of pettysessionsin
AustraliawasabolishedandtheActsaysthatthesecourtsarenowabolishedandthejudgesworkingtherehavenorighttocontinueas
judges.Newcourtsarebeingopened;Metrocourtswereopened.Thegovernmentwillmakenewappointmentstothenewcourts.In
the first set of courts, judgeswillbeonretirementortherewillbeaclosureoftheirofficeandallthat;andtheyhavenoright.But
whatthegovernmentdid,therewerearoundsevenoreightjudgeswhowereworkinginthefirstsetofcourts,pettysessionscourt,and
whenthefirstsetofcourtswastobeclosed,thegovernmentappointedthefirstjudgeofpettysessionscourtinanewsetofcourts,the
secondjudgewasalsoappointed,thethirdjudgewasalsoappointed,andwhentheseventhone’stermcame,thegovernmentsaidwe
arenotobliged.Thecourtsareclosed;abolishedbyanactofparliament,andwearenotunderobligationtoappointyou.Hesaid“you
have appointed andadjustedsixjudgesinanewcourt;whynottheseventh?Thecourtheldthatifyouhavetakenadecisioninsix
casesbyappointingtheminthenewcourts,theseventhjudgeisalegitimateexpectation.Theactionwhichyouhavetakensixtimes,
whyareyounottakingtheseventhtime?You’resupposedtogivehearingandboththingsareexplicithere.Thegovernmentcreated
an estoppel for itself by taking an action six times and seven times when they’ve deniedthemtherightofhearing,whichwasnot
given to the judge and hence the right was created. That is a legitimate expectation.
References of Some Indian Cases
State of Kerala Vs. K.G. Madhavan Pillai (1989) 4 SCC 669
In the StateofKeralaVs.K.G.MadhavanPillai(1989)4SCC669,thegovernmentsanctionedtherespondenttoopennewschools
andupgradetheexistingschoolsonacertainsetofconditions.Itwasprovidedthattherespondentswillupdatetheirschoolsandcan
opennewschoolsaswell.After15-20days,thegovernmentreviseditsordersandsaid“ourpreviousordertoupgradeyourschools
hasbeenkeptinabeyance.Itisbeingsuspended.Itcannotbesanctionedtoyouimmediately”.Theowneroftheschoolapproached
thecourtandsaid“oncetheordersweregiven,Ihaveacteduponthemandthereisaprocessnowthatupgradationofmanyschools
has started.HowcanIgoback?Ihaveemployedthemachinery,theemployees,Ihaveappliedfortheaffiliationsandmanythings.
Youcan’tdenythis”.TheSupremeCourtagreedtothis,thatoncethegovernmenttakesaction,government’sactionmeanspromise;
government’s action means responsibility; and the doctrine of legitimate expectation was upheld.
Schedule Caste and Weaker Sections Welfare Association Vs. the State of Karnataka (1991)
In another case, Schedule Caste and Weaker Sections Welfare Association Vs. the State of Karnataka 1991, government issued a
notification that all slumswouldbecleared.Butanothernotificationcame,wherethesubsequentnotificationhastakenonlyhalfof
theareasfortheslumclearanceandhalfoftheareashavebeenleftout.Therefore,thepeople,thecitizens,gottheopportunitytotake
this decision to the court. Once a notification was issued bythegovernment,itwasacommitmentofthegovernment.Itwasnota
mere promise. It was a legitimate expectation that all slums will also be cleaned. The court agreed tothat,thatoutofthiskindof
notification the citizens have legitimate expectation from the first notification and subsequent notification deviated from this. The
doctrine of legitimate expectation was upheld.
Navjyoti Co-Op. Group Housing Society Vs. Union of India (1993) 4 SCC 477
Next is Navjyoti Co-Op. Group Housing Society Vs. Union of India (1993) 4 SCC 477, where the government invited certain
cooperative societies for theallotmentoflandonthebasisoftheirseniority.Andsubsequently,whenthelandwasallottedtomany
societies,includingthepetitioners;theprincipleofsenioritywasmissing.Itwaschallengedimmediatelyasthecooperativesocieties
applied only by taking the government notification seriously. Their seniority has not been considered.Thegovernment’sallotment
subsequently was annulled by the court and the doctrine of legitimate expectation was upheld.
Supreme Court Advocates-on-record Association & Anr. Vs. Union of India (1994)
Inthiscase,AllChiefJusticesoftheHighCourtshouldbeconsideredfortheirelevationtotheSupremeCourtonthebasisoftheir
seniority. But it was not considered and it was challenged saying that once a seniority listisout,alltheHighCourtjudgeshavea
legitimateexpectationtobeconsideredforthepostofChiefJusticeofaHighCourt.OncetheyarebeingelevatedtotheChiefJustice
of the High Court, all the Chief Justices of the High Court have alegitimateexpectationtobeconsideredtobeappointedortobe
elevated as a judge of the Supreme Court.
Uma Shankar Paliwal Vs. State of Rajasthan (2021)
Inthiscase,themininglicencewasgrantedtothepetitionerfor20yearsbythegovernmentofRajasthan.For20years,thepetitioner
willcontinuetobemininginaparticularareawithalltermsandconditionswhatevertheyare.Butaftertwoyears,therewasachange
ofgovernment.Andoncetherewasachangeofgovernment,thenewgovernmentreconsideredthedecisionfor20yearsandsaidthat
theywerereducingitfrom20yearsto10years.Then,immediately,thepetitionerapproachedthecourtandsaid“Ihavepurchasedthe
machinery,keepinginviewmy20years’licenceformining.Ihaveemployedpeople.Ihaveengagedmywholemachineryaccording
tothisandreducingtheperiodinbetweenishittingmylegitimateexpectationbecauseitwasgivenonlybythegovernmentandnow
the government has taken the defence”. The Court agreed to this and the doctrine of legitimate expectation was upheld.
Limitations
Thedoctrineoflegitimateexpectationhasitsimportance,itsuseandithasbeenexercisedinIndia.Butatthesametime,ithasitsown
limitations. What are the limitations?
(1)Ifthereisalegislativeenactment,thedoctrineoflegitimateexpectationhasnoplace.Letmeillustrateitthroughthecaseofthe
State of Himachal Pradesh versus KC Mahajan,1992. Here, it is a case of the retirement of an official and when it comes to the
retirement,theageoftheretirementaspertheConstitutionistobefixedbythegovernment.Itisnotamatterofright.So,whenthe
respondenthadtoretire,hisretirementagewasreducedbythegovernmentandhewasmadetoretire.Itwaschallengedandthecourt
said“youcan’tdoitwithanyparticularindividual”.Butsubsequently,thegovernmenttookthemattertothelegislatureandtheHP
VidhanSabhapassedanactwheretheagewasfixedto58years.Nowthelegitimateexpectationcomestoanend.Thereisaclear-cut
law; there’s a law in black and white; there is a positive law; a law in writing; legitimate expectation cannot operate against the
legislature because the legislature has passed the law.
(2)Thereisanotherexceptiontothisi.e.,publicpolicy.Wehaveapublicpolicy.Accordingtothepublicpolicy,thereisastandardof
morality and a standard of decency in society. If anything goes against public order or public policy, it cannot be allowed.
(3)AnotherexceptionwecantakeistheNationalSecurity.Ifsomeactionisbeingtakenbythegovernmenttoprotecttheborders,the
nationalsecurity,andthedefenceofthecountry,thatcannotbetakenasalegitimateexpectation.Thegovernmentisexpectedtoactin
such matters promptly and exceptionally.
Conclusion
Weknowthatwehaveourownpoliticalexecutive.TheheadofthepoliticalexecutiveisthenominalexecutiveasPresidentofIndia,
and the working executive is the prime minister of India and the Council of Ministers, and that is subject only to five years. So
therefore,wesaytheheadofanyexecutiveministryisaminister;theychangeandoncetheychange,thereisachangeofpolicy.So,
mostofthetimeshelterisbeingtakenbehindthechangeofpolicy,butchangeofpolicyagainrequires,therighttobeheardwiththe
personwhoselegitimateexpectationsarehit.So,ifthereisajustificationforthechangeofpolicy,thegovernmenthastosaythatyes,
thereisachangeofpolicy.Thepolicywasearlierthis.Andnowthepolicyisthatifthereisachangeofcircumstances,notchangeof
individuals,notchangeofideology,notchangeofapoliticalparty,thathastobechangedinthecircumstancesandunderthechanged
circumstances,whichhastobeprovedbythegovernment.Thechangeinthedecisioncanbethere,butbygivingarightofhearingto
such personwhoserightsarebeingaffected.Thislegitimateexpectationisarightbutitcanonlybeexercisedwhenwesaythatthe
peoplewhoareinvolvedintheadministrationofpublicinstitutionsarewellawareofthisrightand,atthesametime,thecitizenswho
are meek, humble, and poor areonthereceivingendwhentheyvisitanyofficefortheirownwork.Then,unlessanduntiltheyare
supportedbytheadministration,theyaresupportedbythepolicy;theirgrievancescannotberedressed.So,legitimateexpectationisa
toolwhichisbeingrecognizedbythecourttostrengthenthecitizens.Itcanonlybesuccessfulwhenthegovernmentofficialstakeit
in the right perspective and it reaches the citizens in the right perspective. Thank you very much.
Doctrine of Proportionality and Wednesbury Principles
Introduction
As we understand, the government has three departments: the legislature, executive, and
judiciary, and the different functions have been rolled out to all three departments of the
government. The legislature legislates collectively in the house. The judiciary functions inthe
opencourtthroughtheopenhearing.So,therearealotofchecksthroughthepublic.Butwhenit
comes to the executive, we understand that the executive functions through its officials under
discretion. We are living in theeraofdelegatedlegislation.Thelegislaturehasnotimetopass
the legislature, i.e., the legislations are passed today in skeleton form. By law, rules and
regulations are framed by the executive, giving the executive lots of discretion. The whole
administrativelawhasbeenbuiltonadministrativediscretion,itsguidance,anditscontrol.Ifit
is so, then the other aspects oftheexecutivepowersarethattheyhavehegemony;theycanbe
tyrannic;theycanbedespotic;theycanbeuncontrolled;andtherefore,thewholelegalsystemis
being developed. How to check the executive; how to control the executive powers; and with
this, if we seetheconstitutionalhistoryofallsuccessfuldemocracies,thenwefindthatcertain
principles have been evolved.
Montesquieu’s Theory of Separation of Powers
Let us start with the USA's Montesquieu’s Theory of Separation ofPowers.Thistheorystates
that all three wings should workseparatelyandatthesametimehaveseparatepowers,butthe
USA constitution clubbed this theoryinsuchamannerbycreatingamechanismwherechecks
and balances have been created and are working successfully. We have seen the French
Revolution and the French Constitution subsequently. In France, what we noticed, which is
unprecedented and not elsewhere around the globe, is the Droit Administratif system.
Administrativecourtsandadministrativetribunalsaregivenenoughpowerandpowersaregiven
to the extent that there is a mechanism in the system such that administrative powers and the
executivearecontrolled.WhenitcomestoDicey’sTheory,themainfeaturesarethatlawmeans
lawpassedbythelegislature.AnotherfeatureofDicey’sruleoflawisthateverypowerwhichis
beingexercisedbythelegislatureorbytheexecutivehastobejudiciallyreviewed.So,citizens
get another chance to determine whether they havebeentreatedfairlybythelegislatureorthe
executive. That is an inbuilt system everywhere.
In the Indian Constitution, fundamental rights are a part of the scheme.CitizensinIndiahave
beenclothedwithfundamentalrightsandtheserightsareimplementedintherightspirit;citizens
aregettingthebestbenefitofthis.ThesupervisorycontrollieswiththeSupremeCourtofIndia.
Article 14, article 19, and article 21—this is a golden trio where the citizens can takeshelter.
AdditionaljurisdictionhasbeengiventotheHighCourt.AllHighCourtsareunderArticle226
where citizens have a righttogoforaspeedyremedyagainsttheactionsofthelegislatureand
executive. Thisisthesystemwhenwetalkaboutwhereliesthebasisforthejudicialreviewof
administrative actions and executive actions because all principles are being developed.
Bureaucracyandgovernmentofficialsexercisetheirdiscretionintherightperspective.Because
inthemodernera,it'sbasicallyawelfarestate.Thegovernmentcannotreachthepeopleunless
and until discretion is vested with the government officials who are dealing with the task of
implementingthelawbecausetheyknowtherealproblemsatthegrassrootlevelbeingfacedby
the citizens. Iftheyareawareoftheproblems,onlythencantheyaddressthem.Therefore,the
ConstitutionofIndia,whichhasbeenrightlyimplemented,saysthatdiscretionmustbegivento
the officials, but that discretion must not be unbridled, uncontrolled, or unreasonable, butthat
discretionistobeexercisedunderthechecksofthelegislatureandcontrolledbythejudiciary.If
we go by this way, the executive can achieve the desired results. So, for that matter, to
understandthis,weneedtounderstandthatthejudiciarycanreviewtheSupremeCourt,theHigh
Courts,andthevarioustribunals,whicharebeingmadeforthispurposeonly.Howfararethey
able to judicially review the actions of the executive? There are a few historic things like the
WednesburyPrinciplesandScrutinyRulesdevelopedinEngland,butatthesametimeinIndia,
they have been imported earlier and we have applied them.
Historic Cases
The firstcaseisfrom1948,popularlyknownastheWednesburyCorporationCase(Associated
Provincial Picture HousesLtd.vs.WednesburyCorporation(1948)1KB223).Whathappened
in this case was that the legislature, through its act of 1932, allowed the cinemas in this
corporationtobeopenedwithcertainconditions.Whiletheofficialsofthecorporationexercise
their discretion byframingthebylaws,oneoftherulestheyhaveframedisthatchildrenunder
15yearsofagecannotvisitthecinema,withorwithoutanadult.Thisconditionwasrestricting
the children from going into the cinema hall. And it was challengeable, because there wasno
justification for the same. It was actually the legislature that framed the rule and gave the
discretion. And before that, it was considered thatthelegislatureissupreme,thecourtscannot
interfere,but,inthiscase,thecourtinterfered.Theconditionwhichwasimposedandchallenged
and was subsequently relaxed is known as the Wednesbury Principle. That principleisknown
because it has seen the new ground where administrative action can be challenged before the
courts and thecourthasthepowertosetasidetherule.Meaningthereby,courtshavepowerto
checktheexecutiveofwhichwearetalking;theycantaketheshapeoftyranny,despotismand
hegemony. It is all about how to control the executive.
Council of Civil Service Unions (CCSU) v Minister for Civil Liberties (1985)
In this case, the Prime Minister of England in the year 1984, put abanontheemployeesthat
they cannot join labour unions on the grounds of national security. Now, again, it was an
executiveorderwhichwasrestrictedtotheemployees.Employeeshaveabasicallyfundamental
rightfortheirfairwagesfortheircollectivebargaining.Theyhavetojointhelabourunions.But
onthebasisofnationalsecurity,theyhavebeenrestricted.Abanhasbeenimposedonthem;it
waschallengedbeforethehighestcourtanditwassuccessfullychallenged.Yes,nationalsecurity
is an exception. Anything is justified on the basis of national security because anationhasto
survive. But at the same time, it is not sacrosanct from judicial review. Ajudicialreviewwas
conductedanditwassuccessfullyconducted,butwiththeexceptionthatifanyactionhadbeen
taken to strengthen national security, that exception was also upheld.Nowthesetwocasesare
landmarks, which make the Proportionality and Wednesbury Principles.
Grounds for Judicial Review
Illegality
Action which cannot sustain in the eyes of the law, which is against the law.
Irrationality
Irrationalitymeansthatanactionisnotonlyagainstthelaw—aviolationofthelaw—butatthe
same time, it sounds unreasonable. It cannot be justified ethically and morally on thebasisof
natural law or something like this.
Procedural Impropriety
Procedural Impropriety means that the process through which this exercise is to be exercised.
There is a set procedure; the government has to act; and on this we say what is procedural
impropriety;thatisnotwrittenanywhere,butwesayprinciplesofnaturaljustice.Onthesethree
basic grounds, we say that this whole principle is being formed, that yes, executive and
administrativeactionscanbechallengedinajudicialreviewbeforethecourts,anditisaglobal
principle.Ithappensaroundtheglobe;whereverthereisaruleoflaw,wedemanditunderRule
of Law, that if we want fair hearing, if we wantfairdealingtothecitizensthenithastobeat
leastonthesethreegrounds.Proportionalityisaprinciplewherethecourtisconcernedwiththe
process, method, or manner in which that decision has been ordered. Sir John Lawes has
describedproportionalityasaprinciplewherethecourtisconcernedwiththewayinwhichthe
decision maker has ordered his priority. In one of the cases, Lord Diplock explained
proportionality and said, "this would indeed be using a sledge hammer to crack a nut."
Proportionality involves a balancing test, which keeps a check on excessive or arbitrary
punishment or encroachment upon the rightsandnecessitytest,whichtakesintoaccountother
less restrictive alternatives.
Position in India
IntheIndianlegalsystem,arestrictiveapproachhasbeentakentothisdoctrine,asifabroader
doctrine were adopted, then the discretionary powers of the administration would become
redundant.Itwillallowthejudiciarytoencroachuponthepowersoftheexecutive.Thejudiciary
cannot step into the shoes of an executive and take action on this matter. Hence, the doctrine
adoptedinIndiaisperfecttomaintainthestatus.Thearrangementdoesnotallowthecourttogo
into the merits of the administrative action. This is the basic law, which says that the courts
cannotgointothemeritsofthedecisiontakenbytheexecutive,butthatthecourtscanseeonly
the procedure, the process through which thedecisionhasbeentaken.Ifanactiontakenbyan
authority is grossly disproportionate, the said decision is not immune from judicial review. It
must be judiciallyreviewed.Thedoctrineoperatesbothasaproceduralandsubstantivematter.
The doctrine has been expanded in recent times and applied to various areas other than
administrative law and executive actions.
Indian Cases with Reference to Proportionality andWednesbury Principles
Maneka Gandhi vs. Union of India (1978)
The first such case is Maneka Gandhi Vs. Union of India, 1978, where the provisions of the
passport Act were challenged and the passport of the respondent was impounded by the
government.Andwhensheasksthattheygivemereasons,thegovernmentsayssection10ofthe
passport act says that whenever there is an impounding of thepassport,thegovernmentisnot
underanyobligationtogiveanyreason.Wearelivinginademocraticsetup;wearelivingina
rule of law society where the reasons are to be given. And subsequently,inthiscasealso,the
government of India agreed and said, "we will be giving a post-decision hearing to the
respondentandtheremustbesomereasons."Wecannotliveinasocietywherethegovernment
is not obliged to give reasons. This is an open society; reasons are expected from the
government, and the government agreed in Maneka Gandhi’s case.
Centre for Public Interest Litigation & Anr. vs. Union of India & Anr. (2011)
InCentreforPublicInterestLitigation&Anr.vs.UnionofIndia&Anr.(2011),theappointment
ofthecentralvigilancecommissionwaschallenged.Thegovernmentignoredit,sayingthatthis
isnotpartofthestatuteandintegrityattachedtothepersonalityorindividualasanofficerisnot
partofthis.Actually,thepersonwhowasappointedasachiefbusinesscommissioner,therewere
certaininquiriesthatquestionedhisintegrity,andthegovernmentstillappointedhim,sayingthat
this was not the requirement.
State of Punjab vs. Salil Sabhlok and Ors. (2009)
In2009,apersonwasappointedasthechairmanofthePunjabPublicServiceCommission.He
has been an MLA of the state; been president of the Bar Council; and has been a successful
advocate. This individual has never got a chance to deal with the services. Public service
commissionsaremeanttodealwiththeservicesofcentralandstateemployees.Thisindividual
musthaveknowledgeofservices.So,theappointmentwassetaside.Whatweseeinsuchcases
is illegality, irrationality, and procedural impropriety; from where we started, it is all about
reasonableness;actionsofthegovernmenthavetobereasonable.Iftheyarenotreasonable,then
thereareextraneousconsiderations.Extraneousconsiderationsmeantheyarearbitraryinnature.
Arbitraryactionsofthegovernmentcannotbebeddedtoreasonablenessandhenceforthwillbe
struck down.
Indian Express Newspaper vs. Union of India (1986)
As students, we should be aware of the role played by the Express newspaper during the
emergency.Inonesentence,wecansaythatthisstoodagainstthegovernmentandthatthisstood
with the citizen’s voice. So,whenthegovernmentcameintopowerandthegovernmentgotits
ground, what happened next was that there was a crusade against those people, including the
IndianExpressnewspaper,oncertaingroundsofviolationofbylaws.ThebuildingoftheIndian
Express newspaper was orderedtobedemolished.ItwaschallengedbeforetheSupremeCourt
thatitwaspartofthevendettaofthegovernment,andtheSupremeCourtsetasidetheorderof
the government, ruling that the government could not exercise its power to that extent. When
Nexusisgroundedinavendettaagainstacertainindividualandacertainnewspaper,it'stimeto
stop the demolition of the building. Again, it came to the rescue of a newspaper.
Wehaveapoliticalsystemandapoliticalexecutive.Attimes,whathappensisthatmostofthe
appointmentsaremadeintheExeterofthegovernmentbecausethatistheelectionyear.Andif
that government could not repeat itself andanewgovernmentcomesandthenewgovernment
starts a newvendetta,thenewlyappointedpeoplemaynotbeallowedtojoinortheymaytake
many things. In one such case,JitendraKumarvs.StateofHaryana(2008),whichreachedthe
Supreme Court, the Haryana government took a decision. They downsized the carder. The
governmentsaysthatwedon’thaveaplaceandwewanttorecruitonly100people.So,weare
just downsizing the carder only. The court came down heavily onthegovernment,sayingyou
can’t do this. Such a drastic change in the policy cannottakeplace.Ifthosepeoplehavebeen
recruited according to the procedure, which is correct in law, then you can’t downsize your
carder.Yes,iftherecruitmentisnotaccordingtoprocedure,youcanchallengetheprocedure.So,
ultimately, who are the sufferers? The sufferers are the newly appointed people who got the
opportunity through a process that is assumed to be fair. Through that process, if they are
selected, they can’t go to the same level again.
Conclusion
Letmeconcludeit.Article14isthere,andeveryactionofthegovernmenthastobereasonable.
So, we have travelled beyond those three grounds. Those three grounds are illegality,
irrationality, and procedural impropriety. Those are the basic principles for reviewing the
decisionsoftheadministrationbythejudiciary.Butarticle14hasbeenextendedtothelevelthat
if the action of the government is not reasonable,itcanbechallenged,andifweseethecases
which we have discussed, either it is the appointment oftheChiefBusinessCommissioner,or
whetheritistheappointmentofthechairmanofthePublicServiceCommissionofastate,what
wehaveseenisthattheSupremeCourthasgotenoughpower.Ifitisbeingchallengedinpublic
interest or otherwise, before it, then it can revisit and read down the decision taken by the
executive to give preference on extraneous considerations. So, judicial review is powerful in
India. It is going in the right direction. We have tounderstanditlikethis.Itismotivatingand
promoting the rule of law in society in India. Thank you very much.
1
Separation of Powers
Introduction
The constitution of a country defines the inter-relationship among the three organs of
government:thelegislature,theexecutive,andthejudiciary,andregulatestheirrelationshipwith
thepeople.Thelegislatureistomakelaws;theexecutivetoimplementlaws;andthejudiciaryto
interpretthelawsandadministerjustice.Thedivisionofthepowerofthestateintothreeorgans
is called the doctrine of separation of powers and is characteristic ofallmodernconstitutions.
For the purpose of fair andreasonableuseofgovernmentalpowers,itisrequiredthatdifferent
powers should be exercised by different persons and bodies of persons. It is based on the
common saying that power corrupts, and absolute power corrupts absolutely. Each of these
powersmustbeexercisedbyadifferentgovernmentalorgan,withitsownindependentsphereof
action. Each organ of government sets limits to the power of the others and thus preventsthe
development of absolutism.
The Origin of the Doctrine of Separation of Powers
This doctrine is generally associated with the French jurist Charles de Montesquieu. This
doctrine was derived by Montesquieu from the British constitution. Montesquieu stated the
doctrine in the following manner:
"Whenthelegislativeandexecutivepowersareunitedinthesamepersonorinthesamebodyof
magistrates, there can be no liberty. Again, there is no liberty if the judicial power is not
separated from the legislative and executive powers. Whereitisjoinedwithlegislativepower,
thelifeandlibertyofthesubjectwouldbeexposedtoarbitrarycontrol,forthejudgewouldthen
bethelegislator.Wereitjoinedwiththeexecutivepower,thejudgemightbehavewithviolence
and oppression."
The purpose of the doctrine of separation of powerswastopreventtyrannyandensureliberty
because the concentration of power in one person or organ of state will imperil liberty.
Blackstone was also apprehensive of combining power in a single organ. He observed:
2
"Wherever the right of making and enforcing the law is vested in the samemanoroneorthe
same body of men, there can be no public liberty."
Development of Doctrine of Separation of Powers in England
Though Montesquieu was inspired by the political system of England in the 18th century, the
truth,however,isnotanessentialaspectoftheBritishconstitution.IntheParliamentarysystem
of Britain, there is no rigid separation of powers due to Parliament's sovereignty. The Prime
Minister is head of the executive and being the leader of the majority party controls the
Parliament.Functionalexertivecomesfromthelegislature,sharedbytheCrown,whoisjustlike
a rubber stamp. EvenamemberofthejudicialcommitteeoftheHouseofLordsislegallypart
and parcel of the upper house, i.e., the House ofLords.Inthissense,thereisnoseparationof
powers in England.
Development of Doctrine of Separation of Powers in America
TheAmericanshadaveryunhappyexperiencewiththeBritishParliament.Americansconsider
the combining oflegislativeandexecutivepowersasanevilwhichshouldbeavoided. So,the
framersoftheAmericanConstitutionvestedthethreepowersinthedistinctauthoritiesbythree
different Articles of the Constitution. All legislative power is vested in the Congress under
ArticleI,theexecutivepowerinthePresidentunderArticleII,andArticleIIIprovidesthatthe
judicial powers shall be vested in the Supreme Court.TheAmericanConstitution,inthisway,
providesthatthepowersvestedinoneorganofthegovernmentcannotbeexercisedbyanyother
organ. However, American constitutional developments have shown that, in the face of the
complexity of modern government, strict structural classification of the powers of the
governmentisnotpossible.Therefore,inAmerica,asystemof"checksandbalances"hasbeen
accepted, and through this one department controls the other two.
Development of Doctrine of Separation of Powers in India
After independence, India adopted the Parliamentary form of government borrowed from
Britain, so in India, like England, the doctrine of separation of powers is not applicable. This
doctrinehasnohistoricalbackgroundinIndia.IntheConstituentAssembly,therewasaproposal
toincorporatethisdoctrineintotheConstitution,butitwasknowinglynotacceptedand,assuch,
3
turned down. Because itwasfoundunfitwiththeconstitutionalframeworkembodiedwiththe
draft Constitution, which was based on the Parliamentary Government. The amendment was
rejected, but Article 50 was inserted into the Directive Principles of State Policy on the
suggestion of Dr. B. R. Ambedkar. It provides for the separation of the judiciary from the
executive. Thus, it partially incorporated the doctrine of separation of powers.
The Constitution of India has not made any absolute or rigid division of functions amongthe
three organs of the state. We take the example of three initial cases, i.e.,Re:DelhiLawsAct,
AIR1951SC747,RaiSahibRamJawayaKapurvs.StateofPunjab,AIR1955SC54;andRam
KrishnaDalmiav.JusticeTendolkar,AIR1958SC538.TheSupremeCourtobservedthat"the
IndianConstitutionhasnotindeedrecognisedthedoctrineofseparationofpowersinitsabsolute
rigidity, but the functions of the different parts or branches of the government have been
sufficientlydifferentiated."Nevertheless,thefunctionalseparationofthreedifferentagencieshas
not been ignored. But the powers and functions of each constitutional entity are to be found
within the constitution because all three are the children born out of the constitution. The
constitutions,powersandpositionsofallthreeinstitutionsarederivedfromawrittenconstitution
which is envisaged to have been adopted and enacted by the "We, the people of India". The
framersoftheConstitutionfeelthatacertainkindofrelationshipbetweenthelegislatureandthe
executive is important: or that the judiciary should have a certain guaranteed degree of
independenceofthelegislatureandexecutive.Theymayfeelthattherearecertainrightswhich
citizens have and which the legislature or the executive must not invade or remove. The
executivepoweroftheUnionisvestedinthePresidentexpressly,butthereisnocorresponding
provision in the Constitution vesting legislative and judicial power inaparticularorganofthe
State.Becausejudicialpowerisnotvestedinoneorgan,thestatemayconferjudicialpoweron
the courts and tribunals. Legislative power is primarily vested in a legislature in the Union
Parliament and the state legislatures. Yet, it is recognized thatlegislaturesthemselvesdelegate
legislative powerstoappropriateauthorities.Theonlylimitationisthatessentialpowerscannot
be delegated by the legislature. In India,ParliamentconsistsofthePresident,theHouseofthe
People,andtheCounciloftheStates.Thus,thetheoryofseparationofpowersbreaksdownhere
becausetheexecutiveheadisapartofthelegislature.ThePresidentistheheadoftheexecutive,
buttherealexecutivepowersarevestedintheCabinet.ThereisaCouncilofMinisterstoaidor
advise the President in the exercise of his functions. It is further prescribed that the President
4
should act in accordance with such advice. The Prime Minister, as head of the Council of
Ministers, is the real head of the executive. Ministers are essentially to be appointed from
amongstmembersofeitherHouseofParliament.TheUnionCouncilofMinistersiscollectively
responsible to the House of the people. In U. N. Rao v. Indira Gandhi (1971), the Supreme
Court has clearly laid down thattheCouncilofMinistersisinactualcontrolofbothexecutive
and legislative functions. By reading togetherArt.74(1)withArts.75(2)and75(3)itbecomes
evident that the President cannot exercise executive powers without the aid and advice of the
CouncilofMinisters.InShamsherSinghv.StateofPunjab(1 974),thispropositionhasbeen
clarified. In thiscase,theSupremeCourthasstatedthatthePresidentaswellastheGovernors
are only "constitutional or formal heads". They exercise their powers and functions under the
ConstitutiononlywiththeaidoradviceoftheCouncilofMinisters.WhenevertheConstitution
requires the satisfaction of the president or the governor, it indicatesthesatisfactionisnotthe
personalsatisfactionofthepresidentorthegovernorbutthesatisfactionisthesatisfactionofthe
Council of Ministers.
Relationship betweenParliamentandPresidentasexhibitedbyArticles3,85,86,87,108,111,
352,356,and360leavesleastscopeforseparationofpowersbetweenParliamentandexecutive.
Article 78 provides that it shall be the duty of the Prime Minister, (1) to communicate to the
President"alldecisions"oftheCouncilofMinistersrelatingtotheadministrationofjustice;(2)
to furnish such information relating to the administration of the affairs of the Union and
proposals for legislation as the President may call for; and (3) if the President so requires, to
submit for the consideration of the Council of Ministers anymatteronwhich"adecision"has
been taken by a Minister but which has not been considered by the Council. The doctrine of
"separation of powers" is acknowledged as an integral part of the basic features of our
Constitution.Itisalsocommonlyagreedthatallthethreeorgansofthestate,i.e.,theLegislature,
the Executive,andtheJudiciaryareboundbyandsubjecttotheprovisionsoftheConstitution,
which demarcates their respective powers, jurisdictions, responsibilities,andrelationshipswith
one another. It is assumed that none of the organs of the state, including the judiciary, would
exceed their powers as laid down in the Constitution. It is also expected that, in the overall
interest of the country, even though their jurisdictions are separated and demarcated, all the
institutions would work in harmony and in tandemtomaximisethepublicgood.Althoughthe
drafting of legislation and its implementation by and large are functions of thelegislatureand
5
executive,respectively,undertheConstitutionofIndia,thepowertothelimitsofthelegislature
and executive is vested in the judiciary. The Judiciary plays an important role in ensuring
constitutionalchecksandbalancesandadjudicatingdisputestouchingthelimitsofthepowerof
the respective branches of government. In the present scenario, there is a debate related to
judicial activism. The Judges need great wisdom and restraint in wielding this great judicial
power lest they erect their own predilections into principles. The self-imposed discipline of
judicial restraint is the only check on judicial power. As we can see in the recent judgments
pronounced by the Supreme Court of India.
For example, In State of U.P. & Ors. v. Jeet SinghBisht&Anr.(2007),theSupremeCourt
said "TheSupremeCourtcannotdirectlegislation.Thejudiciarymustexerciseself-restraintand
eschew the temptation to encroach on the domain of the legislature or the administrative
authorities. By exercising self-restraint, it will enhance its own respect and prestige. Judicial
restraint is consistent with and complementary to the balance of power among the three
independent branches of the state. It accomplishesthisintwoways.First,judicialrestraintnot
only recognises the equality of the other two branches with the judiciary, it also fosters that
equality by minimising inter-branchinterferencebythejudiciary.Judicialrestraintmayalsobe
called judicial respect, that is, respect by the judiciary fortheothercoequalbranches.Second,
judicial restraint tends to protect the independence ofthejudiciary.Whencourtsencroachinto
the legislative or administrative fields, almost inevitably, voters, legislators, and other elected
officialswillconcludethattheactivitiesofthejudgesshouldbecloselymonitored.Ifjudgesact
like legislators or administrators, it follows that judges should be elected like legislators or
trained like administrators. This would be counter-productive.
Thus, the courts havetomaintainjudicialself-restraintandtheyshouldnottrytotakeoverthe
functions of the executive and legislature.
In Common Cause (A Regd. Society) v. Union of India & Anr. (2008), the Courtheldthat
there is a broad separation of powers under the Constitution and hence oneorganoftheState
shouldnotencroachintothedomainofanotherorgan.Thejudiciaryshouldnot,therefore,seek
to perform legislative or executive functions.
6
In Divisional Manager, Aravali Golf Club & Anr. v. Chander Hass & Anr. (2008), the
SupremeCourtheldthat:"Undertheconstitution,thelegislature,theexecutive,andthejudiciary
all have theirownbroadspheresofoperation.Ordinarily,itisnotproperforanyofthesethree
organsofthestatetoencroachuponthedomainofanother,otherwisethedelicatebalanceinthe
constitution will beupset,andtherewillbeareaction.Judgesmustknowtheirlimitsandmust
not try to run the government. They must have modesty and humility, and not behave like
emperors."
Ifthelegislatureortheexecutivearenotfunctioningproperly,itisforthepeopletocorrectthe
defectsbyexercisingtheirfranchiseproperlyinthenextelectionsandvotingforcandidateswho
will fulfil their expectations, or by other lawful methods, e.g., peaceful demonstrations. The
remedy is not in the judiciary taking over the legislative or executive functions, because that
wouldnotonlyviolatethedelicatebalanceofpowerenshrinedintheconstitutionbutalsoleave
the judiciary with neither the expertise nor the resources to perform the functions.
InUniversityofKeralav.Council,Principals,Colleges,Kerala&Ors.(2010),thequestion
of great constitutional importance which has arisen is "Whether, after getting the
recommendationsofsomeexpertbodybyacourtorder,theCourtitselfcanimplementthesaid
recommendations by passing a judicial order or whether the Court can only send them to the
Legislature or its delegate to consider making a law for implementation of these
recommendations."
In NamitSharmav.UnionofIndia(2013),theCourtheldthat,besidesseparationofpowers,
the independence of the judiciary is of fundamental constitutionalvalueinthestructureofour
Constitution. Impartiality, independence, fairness, and reasonableness in judicial
decision-making are the hallmarks of the judiciary.
InV.K.Naswav.HomeSecretary,UnionofIndia&Ors.(2012),theSupremeCourtheldthat
"it is a settled legal proposition that the court can neither legislate nor issue adirectiontothe
Legislature to enact in a particular manner." After referring to an array of cases, the court
observedthus:"TheCourtmustremainwithinitsself-imposedlimits.TheConstitutiondoesnot
permit the Court to directoradvisetheExecutiveinmattersofpolicyortosermonisequaany
matter which under the Constitution lies within the sphere of the Legislature or Executive.”
7
It is evident from the above that it is neither within the domain ofthecourtsnorthescopeof
judicial review to embark upon an inquiry as to whether a particular public policy is wise or
whetherbetterpublicpolicycanbeevolved.Norareourcourtsinclinedtostrikedownapolicy
atthebehestofapetitionermerelybecauseithasbeenurgedthatadifferentpolicywouldhave
been fairer or wiser or more scientific or more logical.
The Court relied on Bal Ram Baliv.UnionofIndia(2007),whereitwasheldthattheCourt
cannotissueanydirectionforabanontheslaughterofcowsasitisamatterofpolicyonwhich
a decision has to be taken bythegovernment,andacompletebancanonlybeimposedbythe
enactment of appropriate legislation by the legislature in this regard. Accordingly, the Court
dismissed the petition.
In Essar Steels Ltd. v. Union of India (2016), the Court summed up the position in law as
follows:"Broadly,apolicydecisionissubjecttojudicialreviewonthefollowinggrounds:(a)if
it is unconstitutional; (b)ifitisdehorstheprovisionsoftheActandtheRegulations;(c)ifthe
delegateehasactedbeyonditspowerofdelegation;and(d)iftheexecutivepolicyiscontraryto
the statutory or a larger policy."
InCentreforPublicInterestLitigationv.UnionofIndia(2016),JusticeA.K.Sikriheldthat:
"Minimal interference is called for by the courts in the exercise of judicial review of a
governmentpolicywhenthesaidpolicyistheoutcomeofdeliberationsofthetechnicalexperts
in the fields, inasmuch as courts are notwellequippedtofathomintosuchdomainswhichare
left to the discretion of the execution."
Conclusion
Thus, on the basis of the above discussion, it is clear that, aspertheconstitutioninIndia,the
doctrineofseparationofpowersisnotacceptedinastrictsensebutitisbaseduponthetheoryof
checksandbalances.Therefore,theexecutiveandthejudiciaryarecontrolledbythelegislative
body. Theexecutiveandthelegislaturearevestedwiththeresponsibilityundertheconstitution
tomanagepublicaffairswhilebeingaccountabletothepeopleofIndia.Inademocraticstate,the
people have some expectations from the three organsofthegovernmentforthegovernanceof
the country. People’s faith in democratic institutions rested upon how effectively elected
8
representativesperformedandhowattentivetheyweretoissuesthatimpactedpublicwelfare.If
the executive or judiciary fails to fulfil their dutiesasassignedbytheconstitutiontowardsthe
people, it will be treated as a failure of the legislature. To uphold the people’s faith in the
government, it is necessary that allthreeorgansofgovernmentworktogethertomeetpeople’s
expectations. Thank you very much.
1
Rule of Law (Part-I)
Introduction
Hello students, myself Dr. Mohd. Asad Malik and today i will discuss the very important
topici.e.RuleofLaw.IwilltrytodiscussitintwoParts.InPart1,Iwilldiscusstheconcept
of Rule of Law and Part 2, I will focus on New Horizons of Rule of Law.
The spirit of democracy and humanity requires preservation and nurturing of some
fundamental values. If democracy is a tree, then equality, liberty and dignity are sunlight,
water and air which provide life to the notion of democracy. In modern times, countries
following the spirit of democracy have been more successful in elimination of inequalities
andpromotionofsocialwelfare.Thewholeideaofhumanrightsisbasedontheprincipleof
equalityascertainbasicrightsoramenitiesaresupposedtobeavailabletoallhumanbeings
irrespective of their religion, race, caste, gender or linguistic preferences. The concept of
‘Rule of law’ is a core tenet of governance which advocates equality before law and
condemns arbitrariness.
Theruleoflawisvaluedbecauseitisthoughttocurbthepowerofthegovernment,protect
therightsandlibertiesofthecitizensandpromotepersonalautonomy,inthatindividualscan
predict the circumstances in which the government will interfere with their lives.
The doctrine of rule of law has evolved over a considerable period of time and many
philosophers, jurists, academicians and constitutional experts have strengthened the
theoreticalandlegalframeworkofthisconcept.Theessenceofruleoflawmaybetracedin
various provisions of the Constitution of India and it was also part of ancient Indian
civilisationbutinthemoderntimes,thisconcepthasdevelopedinotherpartsoftheworld.In
this chapter, the concept of rule of law, itsevolution,applicationandsignificancehasbeen
discussed.
Rule of Law: Concept and Evolution
The principle of Rule of Law coalesces two words–ruleandlaw.Thetwowordsarenot
only connected with each other but also control the meanings attributable to each other.
1
2
“R
ule” refers to the idea of governing the state and depending on the nature ofthemodel
adoptedinacountry;suchrulecanbeaffectedinmultipleways.Theword“law”,now,lays
down the precise contours of the mode of ruling.
Therootsof‘ruleoflaw’maybetracedintheFrenchphrase“laprincipedelegalite”which
means “principle of legality”. The principle of rule of law envisages establishment of a
frameworktowhichallconductandbehaviourconform,applyingequallytoallthemembers
of the society, be they private citizens or government officials. Rule of law means, rule
accordingtolaw.Theruleoflawisacoreliberaldemocraticprinciple,embodyingideassuch
as constitutionalism and limited government. It is said that ‘Law limits every power it gives’.
IncontinentalEuropeithasoftenbeenenshrinedintheGermanconceptoftheRechtsstaat,a
state based on law. In the USA the rule of law is closely linked to the status of the
constitutionas‘higher’lawandtothedoctrineof‘dueprocessoflaw’.IntheUKitisseento
be rooted in common law and to provide an alternative to a codified constitution.
The purpose of law is to protect each member of society from his or herfellowmembers,
therebypreventingtheirrightsandlibertiesfrombeingencroachedupon.Andtheruleoflaw
is the principle that every person should be subject to the same law. It abhors arbitrary
governmental rule or action, and seeks to provide citizens with some basic protections by
requiring the government to act according to the law. We can say that rule of law is the
modern name of natural law.
However, in terms ofmodernpoliticalandlegaldevelopments,theterm‘R
uleofLaw’was
firstoriginatedbySirEdwardCoke,theChiefJusticeinEnglandatthetimeofKingJamesI.
Justice Coke was the first person to criticise the maxims of Divine Concept. He strongly
believed that ‘the King must be underGodandLaw’andvindicatedthesupremacyoflaw.
This doctrine was later developed by A.V. Dicey in his classic work ‘The Law and The
Constitution’ and he defined the Rule of law as, “…. with us every official, from Prime
Minister down to constable or collector of taxes, isunderthesameresponsibilityforevery
actdonewithoutlegaljustificationasanyothercitizen….”.Itmeansnomanisabovethelaw
and every person, whatever his rank or conditions, issubjecttothejurisdictionofordinary
courts.
There are three essentials of rule of law-
2
3
Supremacyoflaw:Supremacyoflawmeansabsenceofarbitrarypowersandamanmaybe
punishedforabreachoflaw,buthecannotbepunishedforanythingelse.Everypersonwill
be governed by law irrespective of his status.
Equality before law:Itmeansallaresubjecttothesameordinarylaw,administeredbylaw
courts.Therewillbeonesystemoflawandcourtswillapplyforall.Itmeansnooneabove
the law, meaning thereby public officials do not hold any privileged position in England.
However, there were certain exceptions.
Predominance of legal spirit: It means that the source of right of individuals is not the
written constitution but the rule as defined by the courts.
ItistheessenceoftheruleoflawthattheexerciseofthepowerbytheStatewhetheritbethe
legislature or the executive oranyotherauthority,shouldbewithintheconstitutionallimits
and if any practice is adopted by the executive, which is in violation of its constitutional
limits,thenthesamecouldbeexaminedbytheCourts.Theruleoflawhasreallythreebasic
and fundamental assumptions which may be described as under:
(1) Law making must be essentially in the hands of a democratically elected legislature,
subject to any power in the executive in an emergent situation to promulgate ordinance
effective for a short duration while the legislation is not in session;
(2) Even in the handsofademocraticallyelectedlegislature,thereshouldnotbeunfettered
legislative power; and
(3) There must be an independent judiciary to protect the citizen against excesses of
executiveandlegislativepowerandwehaveinourcountryallthesethreeelementsessential
to the rule of law.
Rule of Law in India
RuleoflawisnotanewconceptforIndia;itwasprevailingwithdifferentnames.Itistobe
saidthatinancienttimes,the‘RuleofDharma’wasprevailinginIndia,whichwaslaiddown
by the “Seers” who wrote the ‘Dharma Shasta’s. The word Dharma has been used in the
senseoftruthsorprinciples,asembodiedinDharmasastras,usedinthemostcomprehensive
sense to include the whole of scriptural literature which constitutes the literary source of
Hindulaw.ThisconceptofDharmawaswiderthantheconceptof‘Ruleoflaw’ofEngland
3
4
andevenwiderthantheAmerican'DueProcess’clause.Becauseitnotonlyrequireswhatis
just and legal but it also requires what is moral and natural as per dicta laid in ‘Neethi
Shasta’s’.TheancientIndiankingwasundertheRuleofDharma.“Infact,thekinginancient
Indian society was not immune from legal liability. The society was truly governedbythe
rule of law. There wasmajestyoflawratherthanoftheking.”Likewise,theentireofficers
and servants of the State had to obey theRules ofDharma.
Indian Constitution and Rule of Law
Theterm‘ruleoflaw’expresslyisnotusedintheIndianconstitution.However,thespiritof
‘ruleoflaw’isemphaticallyentrenchedintheConstitutionofIndiaandpledgemadebythe
peopleofIndiainthePreambleisthebestillustrationofthesamewhichprovidesforsocial,
economic and political justice; liberty of thought, expression, belief, faith and worship;
equalityofstatusandofopportunity;promotionoffraternityamongstalltoassurethedignity
of the individual. The constitution guaranteed the fundamental rights to individuals which
operatelimitationsontheexerciseofpowersbythegovernment.Itisplainandindisputable
thatunderourConstitutionlawcannotbearbitraryorirrationalandifitis,itwouldbeclearly
invalid. The scheme of the Constitution of India is based upon the concept of rule of law.
Everyone, whether individually or collectively, is unquestionably under the supremacy of
law. Whoever the person may be, however high he or she is, no one is above the law
notwithstanding how powerful and how rich he or she may be.
Rule of Law and Rule By Law
TheRuleoflawistobedistinguishedfromRulebythelaw.Theformercomprehendsthe
setting up of alegalregimewithclearlydefinedRulesandprinciplesofevenapplication,a
regime of law which maintains the fundamental postulates of liberty, equality and due
process. The Rule oflawpostulatesalawwhichisanswerabletoconstitutionalnorms.The
lawinthatsenseisaccountableasmuchasitiscapableofexactingcompliance.Rulebythe
lawon the other hand can mean Rule by a despoticlaw.
Highlighting the significance of ‘rule of law’ and rationale for restrain on exercise of
arbitrary power in J.K. Iron and Steel Co. Ltd., Kanpur v. The Iron and Steel Mazdoor
Union, Kanpur, AIR1956 SC 231, the Hon’ble Supreme Court madetheobservationsthat
“When the Constitution of India converted this country into a great sovereign,democratic,
republic,itdidnotinvestitwiththemeretrappingsofdemocracyandleaveitwithmerelyits
4
5
outwardformsofbehaviourbutinvesteditwiththerealthing,thetruekernelofwhichisthe
ultimate authority of the Courts to restrain all exerciseofabsoluteandarbitrarypower,not
only by the executive and by officials and lesser tribunals but also by the legislatures and
evenbyParliamentitself.TheConstitutionestablisheda‘RuleofLaw’inthislandandthat
carries with it restraints and restrictions that are foreign to despotic power.”
In State of Bihar v. Sonavati Kumari, AIR 1961 SC 221 the courtobservedthat“itisthe
essence of the rule of law that every authority within the state including the executive
government should consider itself bound by and obey the law...”
In A. K. Kraipak &Ors.Etcv.UnionofIndia&Ors,AIR1970SCtheApexCourtheld:
“Under our Constitution the rule of law pervades over the entire field of administration.
EveryorganoftheStateunderourConstitutionisregulatedandcontrolledbytheruleoflaw.
InawelfareStatelikeoursitisinevitablethatthejurisdictionoftheadministrativebodiesis
increasing at a rapid rate. The concept of rule of law would lose its vitality if the
instrumentalitiesoftheStatearenotchargedwiththedutyofdischargingtheirfunctionsina
fair and just manner. The requirement of acting judicially in essence is nothing but a
requirementtoactjustlyandfairlyandnotarbitrarilyorcapriciously.Theprocedureswhich
areconsideredinherentintheexerciseofajudicialpoweraremerelythosewhichfacilitateif
not ensure a just and fair decision.”
In the Keshvananda Bharti Case, AIR1973SC1461theruleoflawwasconsideredasan
aspect of the basic structure of the constitution.
InIndiraNehruGandhicaseAIR1975SCthecourtheldthat“theruleoflawpostulatesthe
pervasivenessofthespiritoflawthroughoutthewholerangeofgovernment...Theprovision
oftheconstitutionwasenactedwithaviewtoensuretheruleoflaw.Theequalityaspectof
the rule of law and of democratic republicanism is provided in article 14 of the constitution.”
In Additional District Magistrate, Jabalpur v. Shivakant Shukla, AIR 1976 SC 1207 is
popularly known as Habeas Corpus case, detention orders during emergency were
challenged on the groundthatitviolatestheprincipleofruleoflaw.Thoughthecontention
did not succeed and some judges went on tosuggestthatduringemergencytheemergency
provisions themselves constitute the rule of law and court held that “Article 21 is thesole
repositoryofrightstolifeandpersonallibertyagainstaState.Anyclaimtoawritofhabeas
corpus is enforcement of Art. 21 and is, therefore, barred by the Presidential order.”
5
Rule of Law (Part-II)
Rule of Law and New Horizons
Rule of law is necessary for creating trust and accountability. Rule oflawissaidtobethe
childofthe19thcenturybecauseaftertheevolutionofhumanrights,ithasbecomeessential
fortheprotectionofrightsofanindividual.Therecentexpansionofruleoflawineveryfield
ofadministrationandthemodernconceptofRuleoflawisfairlywideandtherefore,setsup
an ideal for any government to achieve, where citizens may continue to enjoy a sphere of
individuallibertyfreefrompublicinterferences,integrationthroughtheruleoflaw. Therule
oflawimpliesthatthefunctionsofthegovernmentinafreesocietyshouldbesoexercisedas
to create conditions in whichthedignityofmanasanindividualisupheld.Theruleoflaw
permeates the entire fabric of the constitution and indeed forms one of the basic features.
Thus, rule of law does not mean merely existence of law but it shouldbealawpassedby
followingdemocraticprocess.TheSupremeCourthasemphasisedonsignificanceofruleof
lawandequalityornon-arbitrarinessincatenaofjudgementsandsomeimportantonesareas
under:
The Supreme Court in the Maneka Gandhi Case held that procedure established by law
means it should be just, fair and reasonable. The court said that “in a democratic society
governed by the rule of law, it is expected of the Government that it should act not only
constitutional and legally but also fairly and justly towards the citizen.”
In Death Penalty case 1980, the courtheldthat“theprocedurecontemplatedbyArticle21
must be ‘right and just and fair’ and not ‘arbitrary, fanciful or oppressive’, otherwise, it
should be no procedure at all and the requirement of Article 21 would not be satisfied.”
Theruleoflawexcludesarbitrariness....wheneverwefindarbitrarinessorunreasonableness
thereisdenialoftheruleoflaw.LawinthiscontextofRuleofLawdoesnotmeananylaw
enactedbythelegislativeauthorities,howeverarbitraryordespoticitmaybe,thenecessary
elementoftheRuleofLawisthatlawmustnotbearbitraryorirrationalanditmustsatisfy
the test of reason.
1
In Khatri v. State ofBihar,1981SCC(1)627,thecourtemphasisedupontherighttofree
legalaidasanessentialingredientofreasonable,fairandjustprocedureforapersonaccused
of an offence who is unable to secure legal assistance on account of poverty.
In Peoples Union for Democratic Rights v. Union of India, AIR1982 SC 1473, the court
upholds the Public InterestLitigationasoneofthenecessarycorollariesofruleoflaw.The
courtfurthersaidthat“theruleoflawdoesnotmeanthatprotectionoflawmustbeavailable
only forthefewfortunateandfortheprotectionoftheirCivilandPoliticalrights.Thepoor
too have Civil and Political rights and the rule of law is meant for them also in reality.”
Justice Bhagwati observed that “No state has right to tell its citizens that because a large
numberofcasesoftherichpeoplearependinginourcourtssowewillnothelpthepoorto
come to the courts for seeking justice until the staggering loadofcasesofpeoplewhocan
afford rich lawyers is disposed off.”
In D.K. Basuv. State of West Bengal, 1997, the Supreme Court observed that “death in
policecustodyisperhapsoneoftheworstkindsofcrimeinacivilisedsociety,governedby
the rule of law and poses a serious threat to an orderly civilised society.”
InZahiraHabibullaH.Sheikhv.StateofGujarat,AIR2004SC3114,thecourtheldthat
“theprinciplesofruleoflawanddueprocessarecloselylinkedwithhumanrightsprotection.
Such rights can be protected effectively when a citizen has recourse to the Courts of law.”
InEpuruSudhakarv.Govt.ofA.P.2006,thecourtheldthattheRuleofLawisthebasisfor
evaluation of all decisions. The supreme quality of the Rule of Law is fairness and legal
certainty. The principle of legality occupies a central plan in the Rule of Law. Every
prerogative has to be subject to the Rule of Law. The ethos of “Government, accordingto
law” requires theprerogativetobeexercisedinamannerwhichisconsistentwiththebasic
principle of fairness and certainty.
TheApexCourtinNationalLegalServicesAuthorityv.UnionofIndia,2014,observedthat
“Theruleoflawissocialjusticebasedonpublicorder.Thelawexiststoensurepropersocial
life.Theruleoflawthatstrikesabalancebetweensociety’sneedforpoliticalindependence,
socialequality,economicdevelopment,andinternalorder,ontheonehand,andtheneedsof
the individual, his personal liberty, and his humandignityontheother.Itisthedutyofthe
Court to protect this rich concept of the rule of law.”
2
In National Human Rights Commission v. State of Gujarat and others, 2009 the Apex
Court held that “communal harmony is the hallmark of democracy. No religion teaches
hatred, ifinthenameofreligion,peoplearekilled,andthatisessentiallyaslurandbloton
the society governed by rule of law. The Constitution of India, in its preamble refers to
secularism. Religious fanatics really do not belong to any religion. Theyarenobetterthan
terroristswhokillinnocentpeoplefornorhymeorreasoninasocietywhichasnotedabove
is governed by rule of law.”
In re: Vinay Chandra Mishra, AIR 1995SC 2348 the court held “The rule of law is the
foundation of a democratic society. The Judiciary is the guardianoftheruleoflaw.Hence
judiciary is not only the third pillar, but the central pillar of the democratic State. In a
democracylikeours,wherethereisawrittenConstitutionwhichisaboveallindividualsand
institutions and where the power of judicial review is vested in the superior courts, the
judiciaryhasaspecialandadditionaldutytoperform,viz.,tooverseethatallindividualsand
institutions including the executiveandthelegislatureactwithintheframeworkofnotonly
thelawbutalsothefundamentallawoftheland.Ifthejudiciaryistoperformitsdutiesand
functionseffectivelyandremaintruetothespiritwithwhichtheyaresacredlyentrustedtoit,
the dignity and authority of the courts have to be respected and protected at all costs.
Otherwise, the very cornerstone of ourconstitutionalschemewillgivewayandwithitwill
disappear the rule of law and the civilised life in the society.”
In Pancham Chand v. State of H.P., (2008) 7 SCC 117,SupremeCourtobservedthatour
Constitution envisagesaruleoflawandnotaruleofmen.Itrecognizesthat,howeverhigh
one may be, he is under the law and the Constitution. All the constitutional functionaries
must, therefore, function within the constitutional limits. [Para 17]
In Lily Thomas v. Union of India, 2013, the court held that once a person who was a
Member of either House of Parliament or House of the State Legislature becomes
disqualifiedbyorunderanylawmadebyParliamentunderArticles102(1)(e)and191(1)(e)
of the Constitution, his seat automatically falls vacant by virtue of Articles 101(3)(a) and
190(3)(a)oftheConstitutionandParliamentcannotmakeaprovisionasinsub-section(4)of
Section8oftheActtodeferthedateonwhichthedisqualificationofasittingMemberwill
have effect and prevent his seat becoming vacant on account of the disqualification under
Article 102(1)(e) or Article 191(1)(e) of the Constitution………..
3
Dr. Subramanian Swamyv.Director, Central Bureau of Investigation2014
“ThedemocracyinIndiahaswitnessedmanyupsanddownsandstillpeoplehaveimmense
faithintheruleoflaw.Animpartialandactivistjudiciaryatapexlevelhasplayedavitalrole
in instilling this faith in common men. In such a scenario, the ‘rule of law’willbecomea
dogmaticandstaticconcept...AmodernRuleoflawframeworkishencecomprehensiveinits
sweepandambit.Itrecognisesthatlibertyandequalityarethefocalpointofajustsystemof
governance and withoutwhichhumandignitycanbesubvertedbyadministrativediscretion
and absolute power.”
A.M. Khanwilkar, J. in Kodungallur Film Society v. Union of India,(2018)10SCC713,
para8“...onemustnotforgetthatadministrationoflawcanonlybedonebylaw-enforcing
agenciesrecognisedbylaw.Nobodyhastherighttobecomeaself-appointedguardianofthe
lawandforciblyadministerhisorherowninterpretationofthelawonothers,especiallynot
with violent means. Mob violence runs against the very core of our established legal
principlessinceitsignalschaosandlawlessnessandtheStatehasadutytoprotectitscitizens
against the illegal and reprehensible acts of such groups.”
InSEBIv.SaharaIndiaLtd.(2014)5SCC429,theSupremeCourtheldthatinthematterof
continuous wilful disobedience of courts orders, there is essential need of iron hand to
enforceruleoflaw,punishcontemnorsandmaintainfaithandconfidenceofthepeopleinthe
judiciary.
In Re Prashant Bhushan Aug 31,2020“Inourconsideredview,theactcommittedbythe
contemnor is a very serious one. He has attempted to denigrate the reputation of the
institutionofadministrationofjusticeofwhichhehimselfisapart. Atthecostofrepetition,
wehavetostatethatthefaithofthecitizensofthecountryintheinstitutionofjusticeisthe
foundation for rule of law which is an essential factor in the democratic setup.”
Bhagyalakshmi v. Inspector of Police.Oct. 09, 2020A Kerala Court
"Acivilisedsocietyisexpectedtoobeytheruleoflawofthecountrysoastomaintainpeace,
lawandorderandanyattacktothesaidfabricisactionableandcannotbeviewedlightly.No
one can take law into their hands on the strength of man power or muscle power"
In Gurjinder Pal Singh v. State of Chhattisgarh and Ors, theSupremeCourtonSep.27,
2021 made scathingoralremarkson'newtrend'inthecountrywherepoliceofficersextract
4
money when they are on good terms with the government, and seek protection when they
face criminal cases after change in government.
"Whenyou'regoodwiththegovernment,youmayextract,thenyou'llhavetopaybackwith
interest. This is too much, why should we grant protection to such officers? This isanew
trend in the country." CJI Ramana remarked.
Rajeev Suri v. Delhi Development Authority & Ors.,Jan.5, 2021
Theabovediscussionisinstructiveonatleastthreecountsfirst,RuleofLawrequireslawin
existence; second,suchlawmustqualifyaslawwithinthemeaningoftheConstitutionand
mustsatisfythestandardslaidthereinandthird,legallyapplicablemeaningofRuleofLaw
in India can be best understood as a democratic rule within the four corners of the
Constitution,asoriginallyenvisagedandasisinterpretedfromtimetotime.Theexistenceof
democracypersedoesnotguaranteeadherencetoRuleofLaw,butabidanceofRuleofLaw
by one and all is the hallmark of a real thriving democracy.
Conclusion
The true success of ‘rule of law’ in Indian context requires recognition and protection of
rightsofunder-privilegedandvulnerablesectionsofsociety.Theatrocitiescommittedagainst
women, Dalits andminoritiesandslowpaceofrelieftoorrehabilitationofvictimsinIndia
raises concerns over effectiveness of rule of law framework in practical sense. In order to
bring moretrustandconvictionofpeopleinthegovernancesystem,itmustbeensuredthat
thedemocraticandstatutoryinstitutionsaredischargingtheirfunctionsinsuchamannerthat
there is no scope for exploitation of or discrimination against people at the bottom of the
pyramid. More accountability and responsiveness are expected from the Government. The
implementation or adoption of rule of law in letter and spirit requirescooperationfromall
stakeholders–Parliament,executives,judiciaryandgeneralpublic.TheGovernmentsshould
allaythefearofordinarycitizensandensurethatnopersonshouldbedeprivedofhisrights
conferredundertheConstitutionoranyotherstatutoryenactments,rulesandregulationsand
the actions of the Governments are not arbitrary and unreasonable
5
1
Delegation of Legislative Powers and Control
Introduction
In today’s lecture, we shall discuss the following points/questions.
⮚ What is Legislation?
⮚ Who can Make Law?
⮚ What is Delegated Legislation?
⮚ What is the Need of Delegated Legislation?
⮚ Who Controls the Delegated Legislation?
Legislation
Legislation is one of the most important sources of law. The term "legislation" means the
"making or the setting of law". It consists of the declaration of legal rules by a competent
authority,e.g.,Parliamentorstatelegislatures.Thus,delegatedlegislationisadeliberateprocess
of legal evolution that consists in the formulation of norms of human conduct in a set form
through a prescribed procedure by agencies designated by the Constitution.
Laws are rules and regulations that are proposed and debated in the parliament bytheelected
legislators and passed by the houses of parliament and receive the President’s assent.
Types of Legislation
i. Supreme Legislation
ii. Subordinate Legislation
Supreme Legislation: When the sovereign authority itself makes the law, it is supreme
legislation,e.g.,Parliament,StateLegislature,OrdinanceandlawdeclaredbytheSupremeCourt
under Article 141.
2
SubordinateLegislation:Subordinateordelegatedlegislationisbyanyotherauthoritythanthe
sovereign,byvirtueofpowersdelegatedtoitbythesovereign,andsubjecttothecontrolofthe
sovereign. Examples of "subordinate" legislation include rules, regulations, bye-laws, orders,
directions, notifications, etc. made by various authorities such as corporations, municipalities,
universities, government departments, Supreme and High courts,etc.
However, the supreme legislation isnotsuperiortotheConstitutionanditissubjecttovarious
constitutional limitations.
Who can Make Law?
The Constitution of India conferred law making power on the legislature, i.e., Parliament and
StateLegislature,keepinginviewthefederalstructureandonthebasisofsubjectsmentionedin
entries of three lists of the seventh schedule, can make law.
Article 245 (1) says: Subject totheprovisionsofthisConstitution,Parliamentmaymakelaws
forthewholeoranypartoftheterritoryofIndia,andtheLegislatureofaStatemaymakelaws
for the whole or any part of the State.
But now the question arises, is there any constitutional backing to delegated legislation.
Expresslynowherethistermisusedintheconstitutionbutwecandrawinferencesonthebasis
of the terminology used by the framers of the constitution in article 13.
Article 13 (3) says: unless the context otherwise requires law includes any Ordinance, order,
byelaw,rule,regulation,notification,customorusageshavingintheterritoryofIndiatheforce
oflaw;lawsinforceincludeslawspassedormadebyLegislatureorothercompetentauthorityin
theterritoryofIndiabeforethecommencementofthisConstitutionandnotpreviouslyrepealed,
notwithstandingthatanysuchlaworanypartthereofmaynotbetheninoperationeitheratallor
inparticularareas.Itreflectsthattheframerswereindeedtogivepowertotheexecutivetomake
rules,regulations,andnotificationsforthesmoothfunctioningofthegovernmentforthegreatest
happinessofthegreatestnumber,keepinginviewthemaxim"S alusPopiliSupremaLex",which
means the welfare of the people is the supreme law of the land.
Delegated Legislation
3
Delegated legislation refers to all lawmaking that takes place outside the legislature.Actually,
delegatedlegislationisaprocessbywhichtheexecutiveisgivenpowersbyprimarylegislative
bodies to make laws in order to implement and administer the requirements of that primary
legislation. Such a law is one madebyapersonorbodyotherthanthelegislaturebutwiththe
legislature’s authority.
According to Sir John Salmond, “Subordinate legislation is that which proceeds from any
authority other than the sovereign power.”
According to M. P. Jain,this term can be used intwo senses:
⮚ Exercise by a subordinate agency or agency that is lower in rank than the legislature
delegated to it by the Legislature.
⮚ The Subsidiary rules are made by the Subordinate Authority in the execution of the
power bestowed on it by the Legislature.
Need for Delegated Legislation
Theimportanceofdelegatedlegislationor,forthatmatter,sub-delegationissoimmensebecause
oftheradicalchangeinthegovernanceofacountryfroma"policestate"toa"welfarestate".In
a modern welfare state, government activity has pervaded almost every field of human
behaviour, thus there is a need for multifarious laws to regulatethisever-wideningactivity.In
such a situation, it is not practicable for Parliament or a State Legislature to deliberate upon,
discuss and approve every detail of legislation, which may be necessary for proper
administration. Therefore, it must delegate its functions to otherlegislatures,althoughkeeping
regulatory control over them.
These factors and reasons for the growth of delegated legislation can be seen as follows:
PressureupontheParliament:Theareas,scope,orhorizonofstateactivitiesisexpandingday
by day and it is difficult fortheParliamenttomakelawsoneachandeverymatterastheyare
havingalotofworktodoandtheyalsohavetomakelegislationonvariousmatters.Therefore,
delegation and rulemaking are a compulsive necessity.
4
TechnicalityintheMatters:Withtheprogressandadvancementinsociety,thingshavebecome
more twisted, complicated, and technical. So, to understand the technicalityofeachandevery
topic,thelegislatureneedsanexpertofthatparticulartopicwhoiswellawareofeachandevery
detail of that matter.
Flexibility:Parliamentaryamendmentisveryslowanditrequiresaprocesstomakeanytypeof
law but with the tool ofdelegatedlegislationitcanbemadeexpeditiouslywiththehelpofthe
executives, e.g., police regulation, bank regulations and rate, import and export, foreign
exchange, etc.
Emergency:Inthetimeofanemergency,oneshouldknowhowtodealwithitquicklywithout
anydelay.Thelegislatureisnotequippedwiththeskillsofprovidinganurgentsolutiontomeet
the situation of emergency. Delegated legislation is the only way to meet that situation.
Experiment: The practice of delegated legislation enables the Executive to experiment. As
every work is newforthelegislativeandithastoexperimentthateitherthislawisworkingin
perfect condition or not.
Complexity of Modern Administration: Modern administration used to take added
responsibilitieswhenitcametoupraisetheconditionofthecitizens,suchaslookingaftertheir
employment, health, education, regulating trade, etc. Therefore, the complexity of modern
administration and the expansion of states’ functions to the social and economic sphereshave
allowed the formation of a new form of legislation and the giving of wide powers to various
authorities on various occasions. Therefore, we can say that there is a rapid growth of this
delegated legislation and that it is necessary for a country to run smoothly.
Delegated Legislation in India
(i)Pre-ConstitutionPeriod:Asregardspre-Constitutionperiodrelatingtodelegatedlegislation
in India, Queen v. Burah (1878) is considered to be the leading authority propounding the
doctrine of conditional legislation. The High Court of Calcutta held that Section 9 oftheAct
was ultra vires the powers of the Indian Legislature. In the opinion of the Court, the Indian
Legislature was a delegatee oftheImperialParliamentand,assuch,furtherdelegationwasnot
permissible. But the Privy Council upheld the validity of that law and held that the Indian
5
Legislaturewasnotanagency or delegateeoftheImperialParliamentandithadplenarypowers
of legislation as those of the Imperial Parliament.
The decision of the PrivyCouncilisopentotwodifferentinterpretations.Oneinterpretationis
thatsincetheIndianlegislature"isnotadelegateeoftheBritishParliament,thereisnolimiton
the delegation of legislative power." But the second interpretation is that since the Privy
Council has validated only conditional legislation, therefore, delegation of legislative power is
not permissible.
Thequestionoftheconstitutionalvalidityofdelegationofpowerscameforconsiderationbefore
the Federal Court in Jatindra Nath Gupta v. Province of Bihar (1949 FC 175). The Federal
Court held that the power of extension with modification is not a validdelegationoflegislative
power because it is an essential legislative function which cannot be delegated. In
this way, for the first time, it was ruled that in India, legislative powers cannot be delegated.
(ii) Post-Constitution Period
(a) Constitutionality of Delegated Legislation-AsthedecisionintheJatindraNath casehad
created doubt, the question of the permissible limitsofdelegationoflegislativepowerbecame
important.
Therefore,inordertogetthepositionoflawclarified,thePresidentofIndiasoughttheopinion
oftheSupremeCourtunderArticle143oftheConstitutionontheconstitutionalityofthreeActs.
The question of law which was referred to the Supreme Court was of great constitutional
importanceandwasfirstofitskind.Theprovisionsofthreeactswerechallengedinthecaseof
In ReDelhiLawsAct,1951(alsoknownastheBibleofDelegatedLegislation).Whatarethe
three laws (provisions)?
(i) Section 7 of the Delhi Laws Act, 1912;
(ii) Section 2 of the Ajmer-Mewar (Extension of Laws) Act, 1947; and
(iii)Section2ofthePartCStates(Laws)Act,1950,wasatissueintheInReDelhiLawsAct
Case, 1951.
6
The Supreme Court was called upon to determine the constitutionality of these laws. By a
majority, the court propounded:
(i) Parliament cannot abdicate or efface itself by creating a parallel legislative body.
(ii) Power of delegation is ancillary to the power of legislation.
(iii)Thelimitationupondelegationoflegislativepoweristhatthelegislaturecannotpartwithits
essential legislative power. Essential legislative power means laying down policy of law and
enacting that policy into a binding rule of conduct.
(iv) Power to repeal is legislative and it cannot be delegated.
The theme of the In Re Delhi Laws Act case is that essential legislative function cannot be
delegated whereas non-essential function can be delegated.
Control on Delegated Legislation
So,onthebasisoftheabovediscussion,wecansaythatthepracticeofdelegatedlegislationis
wellestablished,butitdoesnotmeanthattheexecutiveinthenameofdelegatedlegislationmay
exercise power arbitrarily. Rather, it should be within permissible limits. Now the question is
whatcontrolsandsafeguardscanbeintroducedsothatpowerconferredisnotmisused?Inorder
to ensure the rule making power of the executive isnotmisused,itissubjecttothreetypesof
control. These modes of control are as follows:
1. Procedural Control (Procedural Ultra Vires)
2. Judicial Control (Substantive Ultra Vires)
3. Parliamentary Control
Procedural Control (Procedural Ultra Vires)
Underthiscontrol,theexecutiveauthoritiesaresupposedtofollowtheprocedureprescribedby
theParentActformakinglaw.Iftheyfailtofollowtheprescribedfeaturethenthelawmadeby
theexecutivewillbedeclaredultraviresanditisalsoknownasproceduralultravires. Thereare
the following components of procedural control:
7
AntenatalPublicity(Pre-Publication):Anyrule,regulationorbylawsmadebytheexecutives
should be pre-published, so that the peoplemustknowaboutthesameanditsimplementation.
So. It is necessary that the proper procedure is to be followed by the authorities.
Consultation of Interest: For example, if the law has been made for the doctors;thedoctors
should be consulted; For lawyers, the lawyers should be consulted. Trade unions should be
consulted in case of the labour laws.
Publication: If any law is made, itshouldbepublished.Thepurposeofthepublicationisthat
thepeoplemustknowaboutthelaw.IamgivingyoutheexampleofRazaBulandSugarCo.v.
Rampur Municipality AIR 1965 SC 895. In this case, certain rules for the purpose of the
impositionofthetaxweremadebytheRampurMunicipality,whichwerepublishedintheUrdu
newspaper.Itwasquestionedinthecourtoflaw.TheCourtsaidthatthemandatoryrequirement
is the publication and the Urdu newspaper has a wider circulation in that area than any other
language. So, this requirement has been fulfilled and the law was declared a valid law.
Inoneofthelandmarkjudgmentsofpublicationi.e.,Harlav.StateofRajasthanAIR1951SC
467.ThecourtheldthatunlesstheActoranyotherinstrumentisdulypublished,itcannothave
theforceoflaw.Itisaprincipleofnaturaljusticethatthelawshouldbeknowntothepublicand
it should be properly published.
ButnowadaypublishedGazetteNotificationsareinstantlyuploadedontheofficialwebsitei.e.,
[Link].Thedownloadedelectronicversionaswellasthedownloadedandprinted
version of these Gazette Notifications will be treated as electronic versions for all official
purposes as per Section 4 and Section 8 of Information Technology Act, 2000.
Lok Sabha and Rajya Sabha Secretariat willbesuppliedwiththreehardcopiesofallstatutory
orders and will also be sent a soft copy on email Id i.e., cosl-lss@[Link] and
rsc1sub@[Link] respectively. Simultaneously the notification also gets published in
e-Gazette nowadays.
InUnionofIndiav.G.S.ChathaRiceMills,2020SCCOnlineSC770,the3-judgebenchof
the Supreme Court has held that with the change in the manner of publishing gazette
notifications from analog to digital, the precise time when the gazette is published in the
electronic mode assumes significance and hence, would indeed have relevance.
8
Judicial Control (Substantive Ultra Vires)
JudicialcontrolondelegatedLegislationcanbeappliedbyapplyingthedoctrineofsubstantive
ultra vires and there are the following grounds on the basisofwhichitcanbequestionedina
court of law:
i. The Enabling Act Ultra Vires the Constitution: where the enabling act or its
provisionsareincontraventionofthefundamentalrights,constitutionalrightsorany
provision of the constitution, the court can declare the act or its provisions ultra-virus.
ii. The Delegated Legislation is Ultra Vires the Constitution: If an enabling act is
ultra vires the constitution but the rules and regulations made there violate any
provision of the constitution, it may be declared invalid or ultra vires to the
constitution.
iii. The Delegated Legislation is Ultra Vires the Enabling Act: Power of delegated
legislation should be exercised within the scope of the enabling Act. Otherwise,
delegatedlegislationcanbechallengedonthegroundthatitisultravirestheenabling
Act. In the following circumstances delegated legislation may be declared ultra vires:
i. Delegated Legislation in excess of the power conferred by the Parent Act
ii. Delegated Legislation is in conflict with the Parent Act
iii. Delegated Legislation is in conflict with prescribed procedure
iv. It can be questioned on mala fide grounds
v. It can be questioned on the ground of unreasonableness
Parliamentary Control over Delegated Legislation
Theunderlyingobjectofparliamentarycontrolistokeepwatchovertherule-makingauthorities
and also to provide an opportunity to criticise them if there is abuse of power on their part.
Parliament has control in that the enabling or parent Act passed by Parliament sets out the
framework or parameters within which delegated legislation is made. In India,thequestionof
control on rule-making power engaged the attention of the Parliament.
9
There are three types of control exercised by Parliament over delegated legislation:
Direct General Control
Direct but general control over delegated legislation is exercised in the following manner:
(a) Through the debate on the act which contains delegation: Members may discuss anything
about delegation, including necessity, extent, type of delegation, and the authority to which
power is delegated.
(b) Through questions and notices: Any member can ask questions on any aspect of the
delegationoflegislativepowersand,ifdissatisfied,cangivenoticefordiscussionunderRule59
of the Procedure and Conduct of Business in Lok Sabha Rules.
(c) Through moving resolutions and noticesinthehouse:Anymembermaymovearesolution
onmotion,ifthematterregardingdelegationofpowerisurgentandimmediateandthereplyof
the government is unsatisfactory.
Direct Special Control
This control mechanism is exercised through the technique of "laying" on the table the house
rules and regulations framed by the administrative authority.
Laying on Table
InalmostallCommonwealthcountries,theprocedureof"LayingontheTable" oftheLegislature
is followed. It serves two purposes: firstly, it helps in informing the legislature as towhatall
ruleshavebeenmadebytheexecutiveauthoritiesinexerciseofdelegatedlegislation,secondly,
it provides a forum tothelegislatorstoquestionorchallengetherulesmadeorproposedtobe
made.
Types of "Laying"
The Select Committee on Delegated Legislation summarised the laying procedure under the
following heads:
10
Laying without further provision for control
In this type of laying, the rules and regulations come into effect as soon as theyarelaid.The
purposeofsuchlayingisonlytoinformtheHouseabouttherulesandregulationsmadebythe
executive authorities.
Laying with immediate effect but subject to annulment
Here, the rules and regulations come into operation as soon as they are laid before the
Parliament. However, they cease to operate when disapproved by the Parliament.
Laying subject to negative resolution
InthisprocesstherulescomeintoeffectassoonastheyarelaidbeforetheParliament,butshall
cease to have effect if annulled by a resolution of the House.
Laying subject to affirmative resolution
This technique takes two forms: firstly, that the rules shall have no effect or force unless
approvedbyaresolutionofeachHouseofParliament;secondly,thattherulesshallceasetohave
effect unless approved by an affirmative resolution.
Laying in draft subject to negative resolution
SuchaprovisionprovidesthatwhenanyActcontainsprovisionforthistypeoflaying,thedraft
rulesshallbeplacedonthetableoftheHouseandshallcomeintoforceafterfortydaysfromthe
date of laying unless disapproved before that period.
Laying in draft subject to affirmative resolution
In this type of laying theinstrumentsordraftrulesshallhavenoeffectunlessapprovedbythe
House.
Indirect Control
Indirect controlisexercisedbyParliamentthroughitsCommitteesknownastheCommitteeon
Subordinate Legislation of Lok Sabha. The main functions of the Committee are to examine:
11
i. whether the rules are in accordance with the general object of the Act,
ii. whether the rules contain any matters which could more properly be dealt with in the Act,
iii. whether it is retrospective,
iv. whether it directly or indirectly bars the jurisdiction of the court, and questions alike.
Conclusion
Insimplewords,wecansaythatwhenalaw-makingbodydelegatesitslaw-makingpowertothe
executiveauthorityandinpursuanceofthatpowerwhateverrules,regulationsaremadeknown
as delegated legislation. Such legislation is to be madewithintheframeworkofthepowersso
delegated by the legislature and is, therefore, known as delegated legislation.
But the legislature cannot delegate essential legislative functions, which consist of the
determination or choosing of the legislative policy and formally enacting that policy into a
bindingruleofconduct.Thedelegationisvalidonlywhenthelegislativepolicyandguidelines
to implement it are adequately laid down,andthedelegateisonlyempoweredtocarryoutthe
policy within the guidelines laid down by the legislature. In order to ensure that delegated
legislation is not misused, it has been subjected to the generalprinciplethatadelegateeisnot
able to delegate further, i.e., the maxim 'D
elegatus Non-P
otest Delegare'. So, wecansaythat
delegated legislation is permissible under the Constitution of India subject to the following
conditions:
i. Essential powers cannot be delegated
ii. Further delegation will not be possible
iii. Theretrospective effect cannot be given to a subordinatelegislation unless it is
authorised by the parent statute or a validating statute.
Thank you very much
12
Doctrine of Bias
(nemo debet esse judex in propria causa)
Introduction
The principle of natural justice is a fundamentalconceptintheadministrationofLaw.Natural
Justiceimpliesfairness,reasonableness,equityandequality.Itisoneofthemostimportantrules
andproceduresintheexerciseofjusticeandfairhearing.TheprincipleofNaturalJusticeisalso
known as universal justice, fundamentaljustice,substantialjusticeorfairplayinaction.Inthe
words of A. L. Goodhart "naturaljusticeexpressesthecloserelationshipbetweenthecommon
law and moral principles and it has an impressive ancestry”. Rudolf VonJheringsaysthatthe
success of the administration of justice is dependent on two requisite conditions: that one is
moral initsnatureandamatterofcharacter.Theauthoritywhodecidesthecasemusthavethe
necessary firmness of will and moral courage to maintain the law without beingledastrayby
consideration of any kind, by hate or friendship, sympathy or fear etc. The second requisite
condition is the legal qualification of a judge or authority. Therefore, there is no guaranteeof
justice except the personality of the judge or authority.
Natural justice consists of certain principles which are essentials to justice. If these essential
principles are overlooked the result would be a travesty of justice. It is a great humanising
principle intended to invest law with fairness and to secure justice.
There are two main principles of Natural Justice. These two Principles are:
ThefirstprincipleisNemodebetessejudexinpropriacausameansNomanshallbeajudgein
hisowncause,ornomancanactasbothatthesametime-apartyorasuitorandalsoasajudge,
or the deciding authority.
AndthesecondprincipleisAudialterampartem,Heartheotherpartyortheruleoffairhearing
or the rule that no one should be condemned unheard.
Meaning and Definition of the Doctrine
Nemo Judex In Causa Sua is popularly known as the rule against bias. It is the minimal
requirement of natural justice thattheauthoritygivingdecisionmustbecomposedofimpartial
persons acting fairly, without prejudice and bias. “Any mental condition that would prevent a
judge or jurorfrombeingfairandimpartialiscalledbias.Aparticularinfluentialpowerwhich
1
swaysthejudgment;theinclinationorpropensityofthemindtowardsaparticularobject.Itmay
be grounds for disqualification of the judge or juror in question.”
The Objective of the Doctrine
Theobjectiveofthedoctrineofbiasistoensurepublicconfidenceintheadministrationoflaw.
The court has to consider whether a prudent person having considered all the facts would
reasonably apprehend that the judge would not act partially. The essence of the rule lies in
providing a decision that is free from bias.Anybiaseddecisioncreatesinsecurityamongstthe
people,andinademocraticcountrygovernedbytheRuleoflaw,adherencetotheprinciplesof
natural justice is fundamental. If the content of the law is not supplemented by the rules of
natural justice, justice will be forgotten. Itisjusticethatkeepsawakewhenallareasleep.The
main objective of natural justice is to prevent the act of miscarriage of justice.
InS.L.Kapoorv.Jagmohan&Ors.,thequestionthataroseiswhethertherulesofnaturaljustice
should be followed even when there are undisputed facts that speak for themselves since no
purpose would be served by following the process of formal notice, as the result would
ultimatelybethesame.TheSupremeCourtconcludedthat “merelybecausefactsareadmittedor
are indisputable it does not follow that natural justice need not be observed.”
Foundation of the Doctrine
Thebasicprinciplethatnomanshallbeajudgeonhiscauseisfollowedmeticulouslybothinthe
proceedings of courts and in administrative decision-making processes. One who makes a
decisionshallbefreefromanykindofbiasandshallnothaveanyfavourto,orillwillagainst,
thepersonorpersonswhoserightsareaffectedbyone’sdecision.Theruleagainstbiasisbased
on three maxims:
⮚ No man shall be a judge in his own cause
⮚ Justice should not only be done but manifestly and undoubtedly be seen to be done and
⮚ Judges, like Caesar’s wife, should be above suspicion
Background
InIndia,theprinciplesofnaturaljusticearethegiftofcommonlaw.IntheUSA,theconceptof
naturaljusticeispartofthe'dueprocess'clauseasenactedintheFifthAmendmentandsection1
of the Fourteenth Amendment of the Constitution. The fourfold principle of justice, viz., (i)
notice, (ii) opportunity of hearing, (iii) an impartial tribunal; and (iv) an orderly course of
procedure is now, in the USA a settled practice both in legal as well as administrative justice.
2
Meaning of Bias
'Bias' means an operative prejudice, whether conscious or unconscious, concerning a party or
issue. Such operative prejudicemaybetheresultofapreconceivedopinionorapredisposition
or a predeterminationtodecideacaseinaparticularmanner,somuchsothatitdoesnotleave
themindopen.Inotherwords,'Bias'maybegenerallydefinedaspartialityorpreferencewhich
is not founded on reason and is actuated by self-interest—whether pecuniary or personal.
Definition of Bias
Biasmaygenerallybedefinedaspartialityorpreference.Anypersonorauthorityrequiredtoact
in a judicial or quasi-judicial matter must act impartially. Frank, J observed that:"Ifhowever,
'bias' and 'partiality' be defined to mean the totalabsenceofpreconceptionsinthemindofthe
judge, then no one has ever had a fair trial and no one ever will. The human mind, even at
infancy, is no blank piece of paper. We are born with predispositions and the processes of
education, formalandinformal,createattitudeswhichprecedereasoninginparticularinstances
and which, therefore, by definition, are prejudices."
Scope of Law relating to Bias
InA.K.Kraipakv.UnionofIndia,thecourtobservedthat“theentirelawaboutNaturalJustice
appliestojudicial,quasi-judicialandadministrativedecision-makingprocessesinvolvingacivil
consequence.
Types of Bias
The decision-maker, whether a judge or administrator shall not have any pecuniary, personal,
official or other interests in the concerned matter. The bias is usually of four types:
⮚ Pecuniary Bias
⮚ Personal Bias
⮚ Official Bias or Bias as to the Subject Matter
⮚ Judicial Obstinacy
Pecuniary Bias
Whentheadjudicatingauthorityhasanymonetaryorfinancialinterestinthedispute,pecuniary
bias arises. Any kind of pecuniary interest in the dispute will invalidate the proceedings and
disqualify the person acting as a judge. “There is a presumption that any financial interest,
however small, in the matter of dispute disqualifies a person from adjudicating”. Justice
3
Gajendragadkarobservedthat“Itisobviousthatpecuniaryinterest,howeversmallitmaybe,in
a subject matter of the proceedings, would wholly disqualify a member from acting as a judge".
In Jeejeebhoy v Collector, the bench was reconstituted when it was found that one of the
members of the bench had a pecuniary interest where he was a member of the Cooperative
society, for which the land was being acquired.
In Dimes v. Grand Junction Canal, the House of the Lords held that LordChancellorfailedto
mention his interests in the Respondent’s Company and that was sufficient to invalidate the
decision given by Lord Chancellor on the ground of pecuniary bias.
InthecaseofJosephRaimanv.UnionofIndia,theCentralAdministrativeTribunalquashedthe
orderofpunishmentimposeduponthepetitioneranddirectedthatheshallbereinstatedwithout
back wages to the post held by him. At the same time, the tribunal remitted the mattertothe
appellateauthoritytoreconsidertheappealfiledbythepetitionerandpassanyorderofpenalty
like censure, withholding his promotion, recovery from his pay of the whole or part of any
pecuniary loss caused to the government by negligence, withholdingofincrementofpay,etc.,
instead of major penalty like removal from service.
In R v. Hendon Rural District Council, Ex P Chorley the court quashed the decision of the
planning commission where one of the members was an estate agent who was acting for the
applicant to whom the permission was granted.
Personal Bias
Any relationshiparisingbetweentheadjudicatingauthorityandthepartiescanleadtopersonal
bias. The Adjudicating authority might be a friend, relative or might have any professional
relations. Any personal relation might give rise to enmityagainstonepartyandfavouritismto
the other party.
In A. K. Kraipak v. Union of India, Naqishbund, who was the acting Chief Conservator of
Forests,wasamemberoftheSelectionBoardandwasalsoacandidateforselectiontoAllIndia
cadreoftheForestService.ThoughhedidnottakepartinthedeliberationsoftheBoardwhen
hisnamewasconsideredandapproved,theSupremecourtheldthat̀therewasareallikelihood
ofabiasforthemerepresenceofthecandidateontheSelectionBoardmayadverselyinfluence
the judgement of the other members.'
IntheStateofU.P.v.Mohd.Nooh,adeputysuperintendentofpolicewasappointedtoconducta
departmental enquiry against a police constable, to contradict the testimony of a witness, the
4
presiding officer offered himself as a witness. The Supreme Court quashed the administrative
actiononthegroundthatwhenthepresidingofficerhimselfbecomesawitness,thereiscertainly
a real likelihood of bias against the constable.
In Meenglas Tea Estate v. Workmen, the inquiry conducted by a manager was considered to
vitiate as he acted as a judge in his case.Inthiscase,themanagerwasaccusedofbeatingthe
workman,andtheinquiryforthesaidallegationwasconductedbytheManagerhimself,which
is considered by the court against the principles of Natural Justice.
InMineralDevelopmentCorporationLtd.v.StateofBihar,thepetitionersweregrantedamining
lease for 99 years in 1947. But in 1953, the government cancelledthelicense.Thepetitioners
broughtanactionagainsttheministerpassingthisorderonthebehalfofthegovernment,onthe
groundthatthepetitionerin1952opposedtheministerintheGeneralelection.Therefore,onthe
accountofpoliticalrivalry,theministerpassedsuchanorder,andhencetheordersufferedfrom
personal bias. The Supreme Court found the allegation to be true and thus quashed the said order.
In Mohd. Yunus Khan v. State of U.P., disciplinary proceedingsstartedagainstaconstablefor
beinglateforparade.Theauthoritywhichinitiatedproceedingsalsobecameawitness,accepted
enquiryreportsandalsoimposedpunishmentofdismissal.ItwasheldbytheSupremeCourtthat
the administrative action is in flagrant violation of the rule against bias.
Official Bias or Bias as to the Subject matter
Subject matter simply means the issue in question. This type of situation arises where the
adjudicatingauthoritydirectlyorindirectlyhasanyinterestinthesubjectmatterofthedispute.
Inthesecases,mereinvolvementwouldnotvitiatetheadministrativeactionunlessthereisareal
likelihood of bias.
In the Sub Committee on Judicial accountability v. UnionofIndia,thecourtdidnotallowthe
challengeofbiasagainstthespeakerforhisactionsunderthejudges(Inquiry)Act1968onthe
basisthathewasaffiliatedwithaparticularpoliticalparty.Thecourtalsosustaineditsdecision
on the ground of ‘necessity’, as no other person could decide under the Act.
In G.NageswaraRaov.A.P.S.R.T.C.,theApexCourtheldthedecisionofupholdingthescheme
of nationalisation of motor transport by the Government Secretary to be invalid, due to his
interest in the subject matter, as he was the one who had initiated the process of nationalization.
Judicial Obstinacy
5
Thesupremecourthasdiscoveredanewcategoryofbiasarisingfromthoroughlyunreasonable
obstinacy.Obstinacyimpliesunreasonableandunwaveringpersistence,andthedecidingofficer
wouldnottake“no”forananswer.ThisnewcategoryofbiaswasevolvedbytheSupremeCourt
in the State ofWestBengal&Ors.v.ShivanandaPathak&Ors.whereajudgeoftheCalcutta
highcourtupheldhisownjudgementwhilesittinginappealagainsthisownjudgement.Itissaid
that if a judgment of a judge is set aside by a Supreme Court, the judge must submit to the
judgment. He cannot rewrite overruled judgment in the same orincollateralproceedings.The
judgmentofthehighercourtbindsnotonlytothepartiestotheproceedingsbutalsotothejudge
who has rendered the judgment.
In A.U. Kureshi v. High Court of Gujarat, one of thejudgesoftheHighCourtconsideredthe
so-called misconduct of a member of the subordinate judiciary on the administrative side
(disciplinary committee). He then decided onthepetitionfiledbythedelinquentofficeronthe
judicial side. It was held that there was a reasonable apprehension of bias.
Doctrine of Necessity (Exception of Doctrine of Bias)
The rule that a person cannot be a judge in his own case, is not without exceptions.
Circumstances often arise when the nemo judex rule cannot be held absoluteandthedecision
cannotbequashedsimplybecausethepersonmakingitappearstobedisqualifiedonaccountof
certainbiases.Thedoctrineofnecessityisoneoftheexceptions.Anauthoritywhoisotherwise
disqualifiedforinterestorbiasmaybeheldongroundsofnecessitytobecompetentandobliged
to adjudicate if no other duly qualified tribunal can be constituted.
Thedoctrineofnecessityisnotbeyondlimitations.Theruleisnotconsideredapplicableinthe
following circumstances by the court:
➢ If the disqualification of a member will leave a quorum of an administrative agency
capable of acting.
➢ If the statute provides an alternative forum to the biased tribunal.
➢ Ifthereisnoemergencytojustifyanimmediateorpromptadjudicationthenitwouldbe
better to wait either for disqualification to disappear or for legislative action, and
➢ Ifthereisa"reallikelihood"ofbias,theCentralAdministrativeTribunalcanalsoappoint
commissioners to ascertain facts and submit reports if necessary.
Conclusion
6
TheDoctrineofBiashasoccupiedacrucialroleinthestudyofadministrativelaw.Thedoctrine
constitutes the essence of Justice. The rule against bias is oneofthepillarsofnaturaljustice.
The doctrine not only secure justice but more importantly prevents miscarriage of Justice.
7
Lokpal and Lokayuktas: The Indian’s Ombudsman
Introduction
"Corruption is an insidious plague that has a wide range of corrosive effects on societies. It
underminesdemocracyandtheruleoflaw,leadstoviolationsofhumanrights,distortsmarkets,
erodes the quality of life and allows organized crime, terrorism and other threats to human
securitytoflourish.Thisevilphenomenonisfoundinallcountries–bigandsmall,richandpoor
–butitisinthedevelopingworldthatitseffectsaremostdestructive.Corruptionhurtsthepoor
disproportionately by diverting funds intended for development, undermining a government’s
ability to provide basic services, feeding inequality and injustice and discouraging foreign aid
andinvestment.Corruptionisakeyelementineconomicunderperformanceandamajorobstacle
to poverty alleviation and development."
Good governance has four basic elements. Transparency, Accountability, Predictability and
Participation and any good system of administration, in the ultimate analysis, has to be
responsibleandresponsivetothepeople.Statehasassumedtheroleofafacilitator,enablerand
regulator,thereforethechancesoffrictionbetweenthegovernmentofficialandaprivatecitizen
have multiplied manifold. In these circumstances, in the name of progress and development,
individualjusticeagainstadministrativefaultsmayslipintothelowvisibilityzone.Hence,inthe
above situation, the importance of an institution like Lokpal to safeguard the citizens against
administrative faults by keeping the administration under vigil is the need of the hour.
Meaning of Ombudsman
ThewordOmbudsmanoriginatedfromtheSwedishword‘ombuds’thatmeansadelegate,agent,
officer or commissioner. Ombudsman is referred to in oxford dictionary as the ‘people’s
defender’.AccordingtoGarner,ombudsmancanbedefinedas“a nofficerofParliament,having
as his primary function, the duty of acting as an agent of Parliament, for the purpose of
safeguarding citizens against abuse or misuse of administrative power by the executive”
In England it is known as “Parliamentary Commissioner” and “Lokpal” in India. The word
Lokpal has derived from the two Sanskrit words "loka" means people and "pala" means
protector or caretaker it means “protector ofpeople".Inshort,heisthe“watchdog”or“public
safety valve” against the administration.
Importance of Ombudsman
Governments in the modern age all over the world have come to enjoy a large number of
discretionarypowers.Ifthispowerisabuseditcanveryeasilyimperiltheverylife,libertyand
property of an individual. TheOmbudsmanisneededasoneoftheweaponsinthearmouryof
Control Mechanisms provided by administrative law to matchthegrowingcomplexitiesofthe
administration. In this context,anindependentinstitutionofLokpalhasbeenalandmarkmove
in the history of Indian polity which offered a solution to the never-ending menace of corruption.
Historical Growth of the Institution of Ombudsman
Sweden is the first country to have the institution of Ombudsman, established in 1809. Other
countries followed theSwedishmodelalmostafteracentury.Finland(1919),Denmark(1953),
New Zealand (1962), Britain (1967), South Africa in 1970s, Iceland, Ireland,Netherlandsand
Poland in 1980s, Belgium (1995) are some of the countries which have the institution of
Ombudsman.
In 1966, Guyana became the first developingnationtoadopttheconceptoftheombudsman.
Subsequently, it was further adopted by Mauritius, Singapore, Malaysia, and India as well.
Position of Ombudsman in England
In England, the first Ombudsman was appointed in 1967 through the Parliamentary
CommissionerAct,1967andiscalled‘ParliamentaryCommissioner’.TheActof1967,confers
jurisdiction of the ParliamentaryCommissioneronlyontheCentralGovernmentandonlyover
the department stated in the Second Schedule to the Act of 1967.
In1974alawwasenactedbytheBritishParliamenttoenhancethejurisdictionofParliamentary
Commissioners to the level of local government as well. After its enactment, the local
councillors are entitled to lodge complaints against the local government body and seek
grievanceredressal.However,complaintsagainsttheadministrationcan’tbemadedirectlytothe
Parliamentary Commissioners but can be made only through the members of the House of
Commons.
Position of Ombudsman in USA
The United States of Americadoesn’thaveaunifiedfederalombudsmanservice.Nonetheless,
the role of handling complaints against federal authorities can be seen to some extent being
unofficially incorporated into the role of the US Member of Congress. Since 1963, in every
session of the congress, a bill has been introduced to establish an institution similar to
Ombudsman is considered by the members as a drag on their status and power.
The members considered the ombudsman powers their sole prerogative to represent their
respective constituencies and handle citizen’s grievances. The state-level ombudsman was
introduced in 1967.
Position of Ombudsman in India
The origin of the institution in India can be dated back to the 1960s. Dr. L.M. Singhvi while
participatinginthediscussionofDemandsforGrantsoftheMinistryofLawandJustice,inthe
Lok Sabha, stressed the need for setting up of a Parliamentary Commission on the pattern of
Ombudsman for tackling corruption and redressal of public grievances. The termsLokpaland
Lokayukta were first used by Dr. L. M. Sanghvi. In 1966, the first Administrative Reforms
Commission (ARC) recommended a two-tiermachinerytoredressthegrievancesofthepublic
i.e., Lokpal and Lokayukta.
TheLokpalandLokayuktasAct,2013hashadalonghistory.Ittookalmostforty-fiveyearsto
enactthisimportantpieceoflegislation.ForthefirsttimetheBillwasintroducedintheFourth
Lok Sabha as the Lokpal and Lokayuktas Bill, 1968. Since then, the Bill hasbeenintroduced
nine times in 1971, 1977, 1985, 1989, 1996, 1998, 2001 and twice in 2011. In view of the
repeated postponement to enact this legislation, a campaign was launched by civil society
organisations in 2011. They brought out their own version of the Bill titled ‘The Jan Lokpal
Bill’. The Government later introduced its own Lokpal Bill on 4 August 2011, which was
referred to the Department-related Parliamentary Standing Committee for examination on 8
August 2011. On the basis of the recommendations contained in the Committee Report,
presented on 9 December 2011, the Lokpal Bill,2011,waswithdrawnandarevisedBilltitled
‘TheLokpalandLokayuktasBill,2011’wasagainintroducedintheLokSabhaon22December
2011.
On 27 December 2011, the Bill was discussed and passed by the Lok Sabha with certain
amendments.On21May2012,theRajyaSabhareferredtheBillaspassedbytheLokSabhato
the Select Committee of the Rajya Sabha. The Government accepted 14 of the 16
recommendations made by the Select Committee and accordingly amended the Lokpal and
Lokayuktas Bill, 2011. The amendedBillwasbroughtforconsiderationintheRajyaSabhaon
13 December 2013. The Bill aspassedbytheRajyaSabhawithamendmentswastakenupfor
consideration by the Lok Sabha on 18 December 2013. The Lok Sabha agreed to the
amendments made bytheRajyaSabhaandpassedtheBillonthesameday.TheBillaspassed
by both Houses received the President’s assent on 1 January 2014 and became Act No. 1 of
2014.
Constitution and Selection Procedure for the Members of Lokpal
According to the Act, the Lokpal consists of one Chairperson and eight members and these
members are selected through the screening of two committees.
1. Selection Committee and
2. Search Committee.
1. Selection Committee: The Selection Committee has theprincipalfunctionofselection
and final say in the matter. The selection committee comprises of five prestigious
office-bearers as members, viz, the Prime Minister, the Speaker of the Lok Sabha, the
Leader of Opposition in the Lok Sabha, the Chief Justice of India or a judge of the
Supreme Court nominated by the Chief Justice of India, and one eminent jurist, as
recommended by the other four members of the committee.
2. SearchCommittee:Searchcommitteeconsistsofsevenmembers,anessentialfunction
ofthiscommitteeistoshortlistapanelofeligiblecandidatesforthepostofChairperson
and members of the Lokpal, which is then put before the Selection Committee. The
SelectionCommitteethendecidesuponthisproposedpanelbytheSearchCommittee.A
peculiar featureoftheSearchCommitteeandthatoftheLokpalisthat,halfofthetotal
members of each should be persons belonging to the Scheduled Castes, the Scheduled
Tribes, Other Backward Classes, minorities and women.
Term of Office
ThetermofofficeforLokpalChairpersonandMembersis5yearsortilltheageof70years.The
salary,allowancesandotherconditionsofserviceofchairpersonare equivalenttoChiefJustice
ofIndia andmembersis equivalenttoJudgeofSupremeCourt.ThesourceofsalaryforLokpal
and Members is Consolidated Fund of India. If the chairperson dies in office or has resigned
fromthepost,thePresidentcanauthorisethesenior-mostMembertoactastheChairpersonuntil
a new chairperson is appointed. If the chairperson is not available forcertainfunctionsdueto
leave, his job will be done by the senior most member.
Power and Duties of Lokpal
The Lokpal is envisioned to be independent, has been accorded a high stature and given
extensive powers, including the power to inquire, investigate, and prosecute acts of corruption.
TheLokpalhasjurisdictiontoinquireintoallegationsofcorruptionagainstanyonewhoisorhas
beenPrimeMinister,oraMinisterintheUniongovernment,oraMemberofParliament,aswell
as officials of the Union Government under Groups A, B, C and D.
Chairpersons, members, officers and directors of any board, corporation, society, trust or
autonomous body either established by anActofParliamentorwhollyorpartlyfundedbythe
Union or State government. It also covers any society or trust or body that receives foreign
contributions above ₹10 lakh.
A complaint under the Lokpal Act should be in the prescribed form and must pertain to an
offence under the Prevention of Corruption Act, 1988 against a public servant. There is no
restriction on who can make such a complaint. When a complaintisreceived,theLokpalmay
orderapreliminaryinquirybyitsInquiryWingoranyotheragency,orreferitforinvestigation
by any agency, including the CBI, if there is a prima facie case.
Beforeorderinganinvestigationbyanagency,theLokpalshallcallforanexplanationfromthe
public servant to determine whether a prima facie case exists.
The Lokpal, with respect to Central government servants, shall refer the complaints to the
Central Vigilance Commission. The Central Vigilance Commission will send a report to the
Lokpal regarding officials falling under Groups A and B; and proceed as per the Central
Vigilance Commission Act against those in Groups C and D.
TheInquiryWingoranyotheragencywillhavetocompleteitspreliminaryinquiryandsubmita
report to the Lokpal within 60 days.Ithastoseekcommentsfromboththepublicservantand
"thecompetentauthority",beforesubmittingitsreport. Therewillbea"competentauthority"for
each category of public servant as defined under the Act.
ALokpalBenchshallconsiderthepreliminaryinquiryreport,andaftergivinganopportunityto
the public servant accused of corruption for his/her defence, decide whetheritshouldproceed
with the investigation.
It can order a full investigation, or direct to start departmental proceedings or close the
proceedings. It may also proceed against the complainant if the allegation is false. The
preliminary inquiry should normally be completed within 90 days of receipt of the complaint.
After the investigation, the agency ordered to conduct the probe has to file its investigation
reportinthecourtofappropriatejurisdiction,andacopyofthereporthastobefiledbeforethe
Lokpal.
A Bench of at least three members will consider the report and may grant sanction to the
Prosecution Wing to proceed against the public servant based on the agency’s charge-sheet.
The Lokpal is vested with the power of search and seizure and also powers under the Civil
ProcedureCodeforthepurposeofconductingpreliminaryinquiry&investigationandpowerof
attachment of assets and taking other steps for eradication of corruption.
Lokpal will havepowerofsuperintendenceanddirectionoveranycentralinvestigationagency
including CBI for cases referred to them by the Lokpal.
Limitations
Lokpalis notfreefrompoliticalinfluence astheappointingcommitteeitselfconsistofmembers
from political parties. The biggest lacuna is the exclusion of judiciary from the ambit of the
Lokpal. The Lokpal is not given any constitutional backing and there isnoadequateprovision
for appeal against the Lokpal. The complaint against corruption cannot be registered after a
periodofsevenyearsfromthedateonwhichthe offence mentionedinsuchcomplaintisalleged
to have been committed.
Conclusion
TheLokpalofIndiaiscommittedtoaddressconcernsandaspirationsofthecitizensofIndiafor
cleangovernance.Itshallmakealleffortswithinitsjurisdictiontoservethepublicinterestand
shall endeavour to use the powersvestedinittoeradicatecorruptioninpubliclife.Inorderto
tacklethisproblemofcorruptiontheinstitutionofombudsmanplaysthemostimportantroleand
in the Indian context this role is played by the Lokpal and Lokayukta.
Third Limb of Natural Justice: Reasoned Decision
"The giving of reasons is one of the fundamentals of good administration"
Lord Denning, M.R.
Introduction
Natural justice is a concept of common law which has its origin in “j us natural” which
meanslawofnature.Initslaymanlanguage,naturaljusticemeansanaturalsenseofwhatis
rightorwrong.‘Natural’justiceisnotjusticefoundinnature;itisacompendiumofconcepts
thatmustbenaturallyassociatedwithjustice,whethertheseconceptsareincorporatedinlaw
ornot.Justiceisagreatcivilizingforce.Itensuresthattheruleoflawratherthantherulesof
nature prevail in regulating human conduct. Natural justice has a very wide application in
administrative discretion. It aims to prevent arbitrariness and injustice towards the citizens
with an act of administrative authorities.
Englishlawrecognisestwoprinciplesofnaturaljustice,thefirst-amanmaynotbeajudgein
hisowncause;andSecond-amanshouldnotbecondemnedunheardandtheRomansplaced
thetwoprinciplesintwomaxims(1)Nemojudexincausasua;and(2)Audialterampartem.
Besides,thereisathirdprincipleofnaturaljustice,i.e.,apartyisentitledtoknowthereasons
for the decision. The giving of reasons is one of the fundamentals of good administration.
Thisisalsoknownasspeakingorders.Aspeakingordermeansanorderspeakingforitself.
To put it simply, every order must contain reason in support of it.
Need to Give Reasons
There are many reasons fortheacceptanceofthisrule.Whenreasonsaregiven,itnotonly
facilitates the work of the authority, it also develops the mental capacity of the reasoning
processoftheadjudicatorandinculcatesinhimasenseoffairness.Withoutthese,neithercan
wegetacoherentbodyoflawnorcanthejudicialfunctionsbeefficientlydischargedinthe
progressive and complex society of the present day. Another advantage of a reasoned
decision is that it inspires in the mind of the person affected by it a confidence that the
decisionisacorrectone.Absenceofreasonsgivesrisetolackofconvictionandthedecision
smacksofarbitrariness.ButtheviewexpressedbyLordDenning,thatingivingreasons"lies
the whole difference between a judicial decision and an arbitrary one.
Object
The legalmaxim"cessanterationelegiscessatipsalex",whichmeansreasonisthesoulof
law and when reason of any particular law ceases, so does the law. Every judicial order
shouldcontainsoundreasons.Ifvalidreasonsarenotfoundinanyorder,suchorderbecomes
erroneous.Recordingofreasonsinsupportofadecisiononadisputedclaimensuresthatthe
decision is not a result of caprice, whim or fancy but was arrived at after considering the
relevant law and that the decision was just. According to Lord Denning, “the giving of
reasonsisoneofthefundamentalsofgoodadministration.”Theneedtorecordreasonsadds
clarity, eliminates arbitrariness, and satisfies thepartyagainstwhomtheorderisissued.As
already mentioned above, the old ‘police State' has given way to a ‘welfare State.'
Governmental responsibilities have expanded, administrative tribunals and other executive
authoritieshavearrived,andtheyareequippedwithbroaddiscretionarypowers,withallthe
potential for abuse of power. The need to record reasons is placed on these agencies as a
protection against the arbitrary use of authority. Indeed, even common law courts do not
usually provide explanations in support of their decisions when dismissing appeals and
revisions summarily. But regularcourtsoflawandadministrativetribunalscannotbeputat
par.
Background
Earlier, the requirementbyadjudicatorybodiestogivereasonsfortheirdecisionswasnota
partofnaturaljusticeandaccordingly,theywerenotobligatedtodoso.Butthepresenttrend
of the law has been towards increasing recognition of the duty of the court to give reasons.
Position of Reasoned Decision in USA
American courts have insisted upon the recording of reasons for its decision by an
administrative authority on the premise that it should give a clear indication that it has
exercised the discretion with which it has been empowered. The said requirement of
recordingreasonshasalsobeenjustifiedonthebasisthatsuchadecisionissubjecttojudicial
review and "the courts cannot exercise their duty of review unless they are advised of the
considerations underlying the action under review" and that "theorderlyfunctioningofthe
process of review requires that the grounds upon whichtheadministrativeagencyactedbe
clearly disclosed and adequately sustained.
Section 8(b) of the Administrative Procedure Act, 1946 requiresadministrativeagenciesin
clear terms to give reasons for their decisions. The right to reasoned decisions also arises
from the due processclausetotheConstitution.Adecisionunaccompaniedbyreasonsmay
not be considered a 'due' decision. Furthermore, dueprocessalsoincludesarighttohavea
writtenrecordwhichmustconsistofevidence,arguments,reasonsandallpapersfiledinthe
case.
Position of Reasoned Decision in UK
In Britain, the position at common law is that there isnospecificrequirementthatreasons
shouldbegivenforitsdecisionbytheadministrativeauthority.However,insomejudgment’s
courtshaveemphasisedtheimportanceofreasons.InAlexanderMachinery(Dudley)Ltd.v.
Crabtree, Sir John Donaldson, stated that "failure to give reasons amounts to a denial of
justice.
In England, Report of the Committee on Ministers' Powers recommended that,
(i) "Anypartyaffectedbyadecisionshouldbeinformedofthereasonsonwhichthe
decision is based; and
(ii) "Such a decision should be in the form of areasoneddocumentavailabletothe
parties affected.
Position of Reasoned Decision in India
InIndia,administrativedecisionstobeaccompaniedbyreasonswereconsideredbytheLaw
CommissioninitsFourteenthReportonReforminJudicialAdministration.Itrecommended:
In the case of administrative decisions provisions should be made that they should be
accompanied by reasons. The reasons will make it possible to test the validity of these
decisions by the machinery of appropriate Writs.
No law has, however, been enacted in pursuance of these recommendations, imposing a
general duty to recordthereasonsforitsdecisionbyanadministrativeauthoritythoughthe
requirement to give reasons is found in some statutes.
In Union of India v.MohanLalKapoor,itwasheldthat,intheabsenceofanyparticular
statutoryrequirement,thereisnogeneralrequirementfortheadministrativeagenciestogive
reasons for their decisions. However, if the statute under which the agency is functioning
requires reasoned decisions, courts consider it mandatory for the agency to give reasons
whichshouldnotbemerely'rubber-stamp'reasonsbutabrief,clearstatementprovidingthe
link between the material on which certain conclusions are based.
General Principles of Speaking Order
In general, adjudicating authorities were not required to provide explanations for their
judgments in the past. However, providing explanations is today regarded to be oneofthe
foundations of effective administration. The need to provide reasons promotes clarity and
openness in administration while minimizing arbitrariness for compulsion of disclosure.
Reasoned judgments by adjudicatory bodies increase public trust in the administrative
process.Therecordingofreasonsguaranteesthattheauthorityappliesitsthoughttotheissue
and that the reasons that compelled the authority to make the judgment in question are
relevant to the substance and extent of the authority's power. If the reasons recorded are
completelyirrelevant,theexerciseofauthorityisnullandvoid.InManekaGandhivUnion
of India, the court held that when a law imposes the obligation ofprovidingreasonsfora
decision, the provision is regarded as obligatory, and failingtoprovidereasonsistherefore
fatal to the action taken.
Statutes, on the other hand,seldomimposesucharequirement.Toaddresssuchascenario,
Indian courts have established a broad duty for adjudicatory bodies to provide reasons for
their judgments, partly to meet natural justice principles and partly to comply with
constitutional provisions governing judicial review. Ingeneral,courtsdonotexercisetheir
supervisoryroleoveradjudicatoryorganizationsiftheydonotprovideexplanationsfortheir
rulings. Furthermore, under certain laws, decisions of one adjudicatory body may be
appealedtooramendedbyahigherauthority.Ifthelowerauthoritydoesnotissueaspeaking
order,theaffectedpersondoesnothavetherighttoapproachthehigherauthority.Failureto
give explanations essentially revokes the party's right to appeal or revision. As a
consequence, the idea that an adjudicatory body must give reasons for its decision is now
widely accepted.
In State ofWestBengalvAtulKrishnaShaw,thecourtheldthat“afundamentaltenetof
natural justice that must guide the quasi-judicial processistherulerequiringgroundstobe
provided in support of an adjudicatory ruling. It must be followed in its proper spirit, and
simply pretending to comply will not satisfy the legal requirements”.
In Ram Chander v Union of India, the court has also saidincasesofdisciplinaryaction
against professionals such as lawyers and chartered accountants, reasoned rulings are
required.Duetoafailuretoprovidereasons,ordersmaybedeemedbad,andtheymaynotbe
restored by demonstrating that the reasons existed on file.
Effects of Non-speaking Orders
The approach of the courts has been changing with regard to interpretation of effects of a
non-speakingorder.AccordingtoS.N.Jain,''theCourts'approachisordinarilytoquashan
administrativeorderforfailuretogivereasonsbutthishasnotalwayshappened."Incaseof
Basant v. Advocate General, it has beenobservedthatinthepre-IndependenceeraIndian
courtswereoftheviewthatastatutoryrequirementtorecordreasonswasfortheinformation
of superior officers of the government. as not bound to do so. In Harinagar Sugar Mills
Ltd.v.ShyamSunderJhunjhunwala,theSupremeCourtheldthatwherethedecisionofan
administrative authority is subject to its appellate jurisdiction under article 136 of the
Constitution, such authority must give reasons for its decisions.
In Mahabir Prasad Santosh Kumar v. State of U.P., the Supreme Court stated that
recordingofreasonsinsupportofadecisiononadisputedclaimbyaquasi-judicialauthority
ensuresthatthedecisionisreachedaccordingtolawandisnottheresultofcaprice,whimor
fancy or reached on grounds of policy or expediency.
There are many cases where courts have held that the givingofreasonsinsupportoftheir
conclusions by administrative authorities when exercising initialjurisdictionisessentialfor
variousreasons.InDwarkadasMarfatiaandSonsv.BoardofTrustees,BombayPort,it
was held that every action oftheexecutiveauthoritymustbe,(i)subjecttotheruleoflaw;
and informed by reason.
In S. N. Mukherjee v.UnionofIndia,concludedthattheneedforrecordingofreasonsis
greaterinacasewheretheorderispassedattheoriginalstage.Inthiscasetherequirementto
givereasonshasbeenelaboratelydiscussedbytheSupremeCourtwhichclarifiedthatwhile
in USAcourtsinsistonrecordingofreasonsbyadministrativeauthorities,Englishcommon
lawhasnosuchrequirement.InIndia,theapproachofcourtsismoreinlinewithAmerican
Courts.
Conclusion
V. G. Ramachandran in his book Law of writs have summed up the law relating to
Reasoned decision or Speaking order as: -
1. Where a statute requires recording of reasons in support of the order, it imposes an
obligation on the adjudicating authority and the reasons must be recorded by the authority.
2. Even whenthestatutedoesnotlaydownexpresslytherequirementofrecordingreasons,
the same can be inferred from the facts and circumstances of the case.
Modes of Judicial Review of Administrative Actions
Introduction
Judges exercise judicial power with the authority of judicial review i.e., a court’s power to
review the actions of other branches of government, especially the court’spowertoinvalidate
legislative and executive actions as being unconstitutional. Judicial Review is a great weapon
throughwhicharbitrary,unjust,harassingandunconstitutionallawsarechecked.Judicialreview
is the cornerstone of constitutionalism, which implies limited Government.
Judicial Review of Administrative ActionhasitsorigininEnglandwhichvoyagedincommon
lawcountries.IndiaalsoinheritedtheideafromEngland.IndiahadlaiditsstructureonEnglish
prerogative with the patternwhichwasissuedbythecourtofKing'sBenchtoexercisegeneral
supervisionoverthedueobservanceoflawbyofficialsandauthoritieswhileperformingjudicial
or non-judicial functions.
JusticeH.R.KhannaincaseofADMJabalpurv.ShivakantShuklaopinedthatjudicialreview
hasbecomeanintegralpartofourconstitutionandpowerhasbeenvestedintheHighCourtsand
theSupremeCourttodecideabouttheconstitutionalvalidityoftheprovisionsofstatutes.Ifthe
provisionsofthestatutesarefoundtobeviolativeofanyofthearticlesoftheconstitutionwhich
is the touchstone for the validity of all laws the Supreme Court and the High Courts are
empowered to strike down the said provision.
InS.R.Bommaiv.UnionofIndia,theSupremeCourtheldthatJudicialreviewisanessential
componentoftheruleoflaw,whichisabasicfeatureoftheIndianConstitution.TheJudiciaryis
separateandIndependentandvastpowersareconferredonJudiciarytoadjudicatethedisputes,
entail fines & penalties, and foremost, the interpretation of the law. It is acourt’sauthorityto
review the actions of other branches or levels of government, concerning thecourt’spowerto
invalidate legislative and executive actions as being unconstitutional.
Types of Review
Generally, there are four types of reviews.
1. Legislative Review
2. Judicial Review
3. Constitutional Review
4. Administrative Action Review
Here, our focus will be on Administrative Action Review:
Judicial Review of Administrative action is part of enforcing theconstitutionaldisciplineover
the administrative agencies while exercising their powers. Administrative action may be
statutory, having the force of law, or non-statutory,devoidofsuchlegalforce.Thebulkofthe
administrativeactionisstatutorybecauseastatuteortheConstitutiongivesitalegalforcebut,in
some cases, it may be non-statutory, such as issuing directions to subordinates not having the
force of law, but its violation may be visited with disciplinary action.
Grounds for Judicial Review of Administrative Actions
The administrative body is subjected to give a decision and there may be a chance that the
decision is not fair. Therefore,thereisaneedforjudicialreviewofquasi-judicialactionofthe
administrative body. On certain grounds judicial review can be applied; if the administrative
agency is operating:
1. Ultra Vires
2. In excess of jurisdiction
3. In lack of jurisdiction
4. In violation of the principles of natural justice or
5. Violating the constitutional provisions
Apartfromthegroundofultravireswhichiscommontoallstatutorybodies,theothergrounds
are there where the court has the competence of judicial review. The administrative agencies
havetopracticetheirquasi-judicialjurisdictionbasedontheconstitutionalprovision.Thecourt
isalsocompetenttojudicialreviewonthegroundsofimpositionofpunishmentongovernment
servants.
Writs under the Indian Constitution
IndiahasasolidconstitutionalbaseandcontrolmechanismrunningwiththewrittenConstitution
with entrenched fundamental rights whose enforcement is itself guaranteed. UnderArticles32
and 226, the Supreme CourtandHighCourtshavethepowertoissueprerogativewritsforthe
protectionoffundamentalrightsenshrinedinpartIIIoftheIndianConstitution.Themainobject
of Article 32 is to maintainabalancebetweenthecompetinginterestof“personalliberty”and
“public safety” as reflected in the text of the Constitution and its subsequent interpretation.
Modes of Judicial Review of Administrative Action:
Public LawReview:InIndia,publiclawreviewisconductedthroughconstitutionalmodesby
way of issuing the writs- habeas corpus, quo warranto, certiorari, prohibition and mandamus
under Article 32 and 226.
Private Law Review: Private law review refers to powers of ordinary courts of the land,
exercised following ordinary law of land to control administrative action.
Habeas Corpus
Thewords‘habeascorpusadsubjiciendum’literallymeansthatyouhavethebodytoanswer.It
meansthewritofhabeascorpusisaprocessforsecuringthelibertyofthesubjectbyaffording
an effective means of immediate release from unlawful or unjustifiable detention whether in
person or private custody.
HabeasCorpuswritisaprominentcontributionoftheEnglishCommonlawtotheprotectionof
human liberty. In thewordsofMarshallC.J.,itis"agreatconstitutionalprivilege."Thewritis
themosteffectivemeansofcheckingthearbitraryarrestsaffectedbystatutoryauthority.Itwas
termed asmagna cartaof British liberty or as a palladiumof liberty of common man.
V.G. Ramachandran has mentioned in his book Law of writs that the writ of Habeas corpus
providesapromptandeffectiveremedyagainstillegalrestraints.Thiswritcanalsobeissuednot
only against the person who has actual physical custody but also against even constructive
custody of the detenue.
In the case of Chiranjeet Lalv.UnionofIndia,theCourtheldthatanapplicationforhabeas
corpus can be made by any person on behalf of the prisoner as well as the prisoner himself.
In the case of Sundarajan v. Union of India, the court held thatthewifeorthefatherofthe
detenue can also bring a petition.
Thewritofhabeascorpusisnotaffectedbytheresjudicata.Therepeatedpetitioncanbefiled
under Article 32 itself. Even the rule of constructive resjudicatadoesnotapplyinthehabeas
corpus case.
Mandamus
Mandamus is a judicial remedy which is in theformofanorderfromasuperiorcourttoany
Government, Court, Corporation or public authority todoorforbearfromdoingsomespecific
act which that body is obliged under law to do orrefrainfromdoing,asthecasemaybe,and
which is like a public duty and in certain cases of statutory duty.
InEngland,accordingtoLordGoodardC.J.,itispre-eminentlyadiscretionaryremedy.Thus,
themandamusis"neitherawritofcoursenorawritofright,butitwillbegrantedifthedutyis
like a public duty and especially affects the right of an individual, provided there is no more
appropriate remedy". It has a positive connotation. But, inIndia,thereisnosuchlimitation.It
would lie to restrain an authority from acting unlawfully.
The function of the mandamus is to keep the public authorities within the limits of their
jurisdictionwhileexercisingpublicfunctions.Itcanbeissuedtoanykindofauthorityinrespect
of any type of function administrative, legislative, judicial and quasi-judicial.
IncaseofUnionofIndiav.S.B.Vohra,thecourtheldthatthemainobjectofmandamusisto
preventthedisorderfromthefailureofjusticeandisrequiredtobegrantedinallcaseswherethe
law has established no specific remedy and whether justice despite demanded has not been
granted.
IthasbeenheldinUnionofIndiav.OrientEnterprisesthattheapplicantformandamusmust
show that hehasthelegalrighttocompeltheopponenttodoorrefrainfromdoingsomething.
There must be in the applicant a right to compel the performance of some duty cast on the
opponent. Before theclaimofmandamusismadetheremustbepriordemandforreliefandits
refusal by the authority.
Limitation
There are certain limitations on the issue of the writ of mandamus: An alternate remedy may
dissuadecourtsfromissuingmandamus;itisnotissuableagainstaprivateindividualorperson
working in a ministerial capacity.
In case of Nalani v. D.M., the court heldthatthecourtwillnotinterferewiththemeritofthe
decisionbasedonadministrativediscretionunlessitismadewithoutorexcessofjurisdictionor
is mala fide or is based on extraneous consideration.
Certiorari
Certiorariisanextraordinarycommonlawremedyofancientorigin.Itisnotawritofrightbut
one of discretion. It is a Latin word that means “to certify”. The main object of a writ of
certiorari is to bring up the records of an inferior Court, an administrative tribunal or other
administrativebodydischargingsomequasi-judicialfunction,forexaminationbeforethehigher
judiciary so that it may be certified by the higher judiciary that works and acts of the lower
courts or tribunals does not exceed the limits of jurisdiction fixed by law.
InRJFouzarBusService,Hoshangabadv.State,thecourtheldthat,awritofCertiorarilies
against judicial or quasi-judicial authorities.
InDwarkaNathv.I.T.Officer,itwasheldthatawritofcertioraricanbeissuedonlytoquasha
judicial or a quasi-judicial act andnotanadministrativeact.Thewritcanbeissuedonlywhen
the following conditions exist: -
● The body of persons must have legal authority.
● There must be an authority to determine questions affecting the right of subject and
● The body of persons should have a duty to act judicially.
IncaseofHimmatLalv.StateofM.P.,thecourtheldthatawritofcertioraricanalsobeissued
whenthereisaviolationoffundamentalrightsofthepetitioner,orwheretheorderpassedbythe
agency is mala fide, fraudulent or otherwise unjust.
Prohibition
Thewritofprohibitionisbasedontheprincipletokeepandstickalwaystheinferiorauthorities
(judicial or otherwise) to their proper jurisdiction. It is a writ whereby a court of superior
jurisdiction exercises power over an inferior or quasi-judicial tribunal.
Prohibition can be issued on thesamegroundsonwhichcertioraricanbeissuedexceptinone
ground the error of law is apparent on the face of the record.
The grounds for the issue of prohibition are as following:
(i) Lack or excess of Jurisdiction, or
(ii) Abuse of their jurisdiction; or
(iii) Violation of the rules of natural justice; or
(iv) Contravention of the law of the land.
IncaseofHariVishnuKamathv.AhmadIshaque,thecourtheldthatinthiswayprohibition
appears to be analogous to certiorari but the chief difference lies at the stages at whichthese
writs are issued.Thatistosay,certiorariisissuedwhenanactiscompletedandprohibitionis
issued during the pendency of the matter by the authority to prevent it from proceeding with it.
Quo Warranto
'QuoWarranto'meansinshort'bywhatauthority’.Itisissuedtodeterminetherightofaperson
intheofficetoholdofficeanddirectinghimtodiscloseunderwhatauthorityheisholdingthat
office.
IncaseofUniversityofMysorev.GovindRaothecourtheldthat,itisjudicialorderissuedby
the superior courts to know the genuineness of the occupancy of an office byapersonandto
ascertain whether apersonhasoccupiedanindependentpublicofficegenuinelyorhasusurped
suchanofficeorfranchiseorliberty.Thepurposeofthewritofquowarrantoistodeterminethe
genuineness to hold that office.
TherearecertainprerequisitesforthesuccessfulclaimofQuoWarranto.Theofficeheldbythe
person must be a public office i.e., an office in which the public has an interest. The offices
created under the Constitution of India or specific statutes are deemed to be a public office.
IncaseofG.VenkateswaraRaov.Govt.ofA.P,ithasbeenheldbythecourtthat,anymember
of the public can seek the remedy of quo warranto even if he is not personally aggrieved or
interested in the matter.
The writ of quo warranto will notbeissuedifthereisanalternativelegalremedyprovidedby
thestatute.Wheretheconstitutionoranystatuteprovidesthataspecificquestionoflawistobe
decided by a tribunal, the higher judiciary cannot assume jurisdiction to issue the quo warranto.
Private Law Review
Privatelawreviewreferstopowersofordinarycourtsoftheland,exercisedfollowingordinary
law of land to control administrative action. It is exercised through specific remedies under
certain statutes. They are known as equitable remedies and may be described as following:
Injunction
Theinjunctionmaybedefinedasanordinaryjudicialprocessthatoperatesinpersonabywhich
any person or authority is ordered to do or to refrain from doing a particular act which such
personorauthorityisobligedtodoortorefrainfromdoingunderanylaw.Theinjunctionisan
equitable remedy. It is a judicial process by which one who has invaded or is threatening to
invadetherights,legalorequitable,ofanotherisrefrainedfromcontinuingorcommencingsuch
wrongfulact.Theremedyiscoercivebutnotrigidandcanbetailoredtosuitthecircumstances
of each case. The court in its proceeding for injunction can review all actions Judicial,
quasi-judicial, administrative, ministerial or discretionary. As an equitable remedy, it leaves
discretion with the court to prevent its abuse.
Declaratory Relief
Declaratoryreliefcanbedefinedasajudicialremedythatconclusivelydeterminestherightsand
obligationsofpublicandprivatepersonsandauthoritieswithouttheadditionofanycoerciveor
directory decree.
Theessenceofadeclaratoryremedyisthatitstatestherightsorlegalpositionsofthepartiesas
theystand,withoutchangingtheminanywaythoughitmaybesupplementedbyotherremedies
in suitable cases.
InIndia,provisionfordeclaratoryreliefappearedfirstinSection15oftheCPCof1859,which
wasrepealedbytheCodeof1877butitreappearedinsection42oftheSpecificReliefActand
is now contained in section 34 of the Specific Relief Act 1963.
InthecaseofStatev.Sardarmal,thecourtheldthatthedeclaratorydecreecannotbeobtained
as a matter of right. The Court has the discretion to grant or not to grant it.
Action for Damages
The third remedy against administrative action is a suit for damages. In Civillaw,anyperson
whoisaggrievedbyadministrativeactionoraggrievedbynegligentactsofthepublicauthorities
can challenge its validity in action for damages by filing a suit in the Civil Court and its
procedure is regulated by the Civil Procedure Code.
Conclusion
Throughthispaper,wehavecometoknowthatthepoweroftheSupremeCourtandHighcourt
underArticles32and226areveryextensive.TheyareremedialinscopeandempowertheCourt
to grant relief against a breach of fundamental rights and misuse of discretionary powers by
administrative authorities. Thus, the constitutional remedies provided under the constitution
operate as a check and keep the administration of government within the bounds of the law.
Right to Information: A Tool for Good Governance
Introduction
Freedom of information brings openness in the administration which helps to promote
transparency in state affairs, keep the government more accountable and ultimately reduce
corruption.TheRighttoInformationAct2005ishailedasarevolutioninIndia'sevolutionas
a democracy. It empowers the ordinary citizen with the tools of information that propel
government decisions. Good governance has primarily four elements – transparency,
accountability, predictability and participation. Transparency refers to availability of
information to the citizens and clarity about functioning of the institutions. Right to
informationopensupgovernment’srecordstopublicscrutiny,therebyarmingcitizenswitha
vitaltooltoinformthemaboutthegovernment’sactivitiesandeffectiveness,thusmakingthe
government more accountable. Transparency in government organisations makes them
function more objectively, thereby enhancing predictability. Information about the
functioning of government also enables citizens to participate in the governance process
effectively. In a fundamental sense, the right to information is a basic necessity of good
governance.
Advantages of Freedom of Information
Freedomofinformationhasvariousadvantages.Itenablespeopletoparticipateindemocratic
processes, empowering people to demand theirhumanrightsandcounteringcorruptionand
making government bodies work better.
Right to Information as a Constitutional Right
India being the world’s largest democracy provides fundamental rights of speech and
expressionunderArticle19(1)(a)oftheConstitutionofIndia.ThoughtheIndianConstitution
doesnotexpresslyrecognisetherighttoinformation,overtheyears,theSupremeCourthas
readtherighttoinformationintothepart3rd oftheConstitution,undertherighttofreespeech
and expression.
InStateofUttarPradeshv.RajNarain,alandmarkdecisiononthefreedomofSpeech
andExpression,theCourthasrecognizedtherighttoinformationasanimportantrightina
democraticstateandheldthatpeoplemustbekeptinformedoftheimportantdecisionstaken
by the government to ensure their continued participation in the democratic process. In
People’s Union for Civil Liberties v. Union of India, the Court held that “Right to
information is a facet of the Freedom of ‘Speech and Expression’ as contained in Article
19(1)(a)oftheConstitutionandthusisanindisputableFundamentalRight”.InS.P.Guptav.
UnionofIndia,theCourtthroughliberalinterpretationextendedthe‘Righttoknow’andthe
‘Right to Information’ to the status of a fundamental right. The courtalsoheldthat,“open
government is the new democratic culture of an open society towards which every liberal
democracy is moving and our country should be no exception.” In Bennett Colemanand
Co. v. Union of India, it was held that the Constitutional guarantees for the Freedom of
Speechisforthebenefitofthepeopleanditincludeswithinitsambittherightofallcitizens
to read and be informed.InSecretary,MinistryofInformationandBroadcasting,Govt.
ofIndiav.TheCricketAssociationofBengal,theCourtheldthat“FreedomofSpeechand
Expressionincludestherighttoacquireinformationanddisseminateit”.InDineshTrivedi,
M.P. v. Union of India, the Supreme Court dealt with the righttofreedomofinformation
andobserved,that“inmodernconstitutionaldemocracies,itisaxiomaticthatcitizenshavea
righttoknowabouttheaffairsoftheGovernmentwhich,havingbeenelectedbythem,seek
to formulate sound policies of governance aimed at their welfare”. The Court further
observed:“Democracyexpectsopennessandopennessisconcomitantwithafreesociety,and
sunlight is the best disinfectant”.
Overview of the Right to Information Act, 2005
After a long struggle ofcivilsociety,theRTIActwaspassedbytheParliamenton12May
2005, received the Presidential assent on 15 June and became wholly operational from 12
October 2005. It extends to the whole of India and all citizens have access to the right to
information, subject to the provisions of this statute.
There are few definitions which are important to be discussed here:
● The term Information has been defined in a very broad manner and it means
anything which exists, in any form with a public authority. For example – records,
documents, memos, emails, opinions, advice, reports, samples, models etc. Even
file-noting is opinion and hence covered in the ambit of the Act. Legal or other
opinions obtained by public authorities, or various reports received by them are all
covered as information.
● Aninclusivedefinitionoftheterm“Record”hasbeengivenintheActanditcovers
any record in any form available with a public authority which includes:
(a) any document, manuscript and file;
(b) any microfilm, microfiche and facsimile copy of a document;
(c) any reproduction of image or images embodied in such microfilm and,
(d) any other material produced by a computer or any other device.
● TheActdefinesRighttoInformationwhichallowstheapplicanttoinspectthework
or documents and records. It also permits an applicant to take notes, or ask for
extracts, or certified copies of any records. If the information is in digital form the
information could be demanded and provided in appropriate electronic format.
● The informationcanbedesiredfrom“Publicauthority”anditmeansanyauthority
or body which we consider as Government in common parlance- all Ministriesand
their departments, Municipal Bodies, Panchayats, and so on. This also includes
Courts,PublicserviceCommissionandPublicSectorUndertakingslikeNationalised
Banks amongst others.
● Section 4 of the Act advocates proactive disclosure by public authorities.
● The Act lays down an implementation mechanismbyappointingpublicinformation
officers and appellate officers in all public authorities, stipulating a time limit for
disposing requests for information and establishing information commissions at the
centre and in states.
● TheActprescribestheprocessforobtaininginformationanddisposalofrequests.The
application under the Act can be submitted either in writing or electronically, in
English, Hindi, or the official languageoftheareainwhichtheapplicationisbeing
made, along with the prescribed fee to the Public Information Officer (PIO) or
Assistant Public Information Officer (APIO).
The Act prescribes a timeline for the information to be provided, the information to be
providedwithin30daysiftheapplicationiswithPIOand35days,ifsenttotheAPIOorin
48hourswherelifeorlibertyisinvolved.Ifnoactionistakenontheapplicationwithinthe
stipulated time, it is deemed as a refusal.
The Act prescribes a two-step appeals process. The first appeal lies to the First Appellate
Authority within the organization who is senior in rank to the PIO within 30 daysandthe
secondappealliestotheinformationcommissionwithin90days.TheActdoesnotallowto
providealltheinformationtotheapplicant,certainInformationareexemptedfromdisclosure
and section 8(1) pertain to the following areas which covers:
● Sovereignty and Integrity, Security, Strategic Scientific or Economic interests of
State, Relation with foreign State or lead to incitement of an offence
● Contempt of court
● Breach of privilege of Parliament or State Legislature
● Harm competitive position of a third party (commercialconfidence,tradesecretsor
intellectual property)
● Fiduciary relationship
● Confidential information from foreign Government
● That which would endanger the life or physical safety or identify the source of
information given in confidence
● Which would impede the process of investigations, apprehension or prosecution of
offenders
● Cabinet papers – including records of deliberations of Council of Ministers,
Secretaries and other Officers
● Any Personal information
OverridingEffectofAct:Section22oftheActcontendsthattheprovisionsoftheAct
shallhaveeffectnotwithstandinganythinginconsistenttherewithcontainedintheOfficial
Secrets Act, 1923, and any other law for the time being in force or in any instrument
having effect by virtue of any law other than the Act.
Bar of Jurisdiction of Courts: Section 23 of the Act provides that no court shall
entertainanysuit,applicationorotherproceedinginrespectofanyordermadeunderthe
Act and no such order shall be called in question otherwise than by way of an appeal
under the Act.
Non-Applicability of the Act: The Act will not be applicable to the intelligence and
security organizations specified in the second schedule of the Act, but information
pertainingtoallegationsofcorruptionandhumanrightsviolationsistobeprovidedafter
the approval of the information commission.
● One unique aspect of the Act is that it is wholly retrospective.
Right to Information and Good Governance
Anycountry'sprogressdependsonthefreeflowofinformationwithinthegovernmentandto
the citizenry. “Good governance” means the effective and efficient administration in a
democraticframeworktoachievethegoalsofawelfarestate.Goodgovernancepoliciesand
practicesdifferaccordingtotheparticularcircumstancesandneedsofdifferentsocietiesand
nations. Good governance encourages equity, participation, pluralism, transparency,
accountability and the rule of law, in a manner that is effective, efficient and enduring.
The concept of good governance is based on the principle of strengthening democracy by
increasing the participation of people in the process of decision making and providing
opportunities for individual growth during such a process; this can only be brought about
whenthepeopleareinformedaboutthefunctioningofthegovernment.Righttoinformation
helpscitizenstobemoreinformedabouttheworkingandadministrationofpublicauthorities
andthushelpsinincreasedparticipationofpeopleindecisionmaking.Goodgovernanceand
right to information are complementary to each other. The World Bank once rightly
remarked? Right to information is an integral part of good governance.
Key Elements of Good Governance in the Act
As per the United Nations Commission on Human Rights, the key elements of good
governance include transparency, accountability, participation and accessibility to the
needsofthepeople.TheaboveelementshavebeenaddressedintheRighttoinformationAct
to achieve the objectives of good governance. We will discuss all the elements separately.
Transparency
Transparency is the cornerstone of any good government. Transparency means that
information is freely and directly accessible to thepeopleofthecountry.Transparencyand
accountability are possible only when the public has access to information. Right to
Information made it possible to easily access informationfromrecordsavailable.Tomake
the systemmoretransparent,theActlaysdownvariousprovisionsundersection4thatdeal
with the obligations of public authorities in providing self-disclosure that every public
authority shall maintain all its records duly catalogued and indexed in a manner and the
formwhichfacilitatestherighttoinformationunderthisActandensurethatallrecordsthat
areappropriatetobecomputerisedare,withinareasonabletimeandsubjecttoavailability
ofresources,computerisedandconnectedthroughanetworkalloverthecountryondifferent
systems so that access to such records is facilitatedand
Itshallbeaconstantendeavourofeverypublicauthoritytotakestepsinaccordancewiththe
requirementsofclause(b)ofsub-section(1)toprovideasmuchinformationsuomotutothe
public at regularintervalsthroughvariousmeansofcommunications,includinginternet,so
thatthepublichaveminimumresorttotheuseofthisActtoobtaininformation.Section2(j)
of the Act also provides various provisions to facilitate the access of information to the
people.
Intheeventthattheinformationsoughtforisnotprovidedwithintheprescribedperiodorthe
information furnished is incomplete, misleading or incorrect, the person requesting the
information is free to file a complaint or appeal before the Information Commission, for
necessary directions to the parties. The Commission, under section 20(1) of the Right to
Information Act, has the power to impose penalty and to recommend disciplinary action
against the information providers, if held responsible for obstructing the free flow of
information to the information seeker.
Accountability
Accountability is another key element of good governance. The Right to Information Act
gives such power to the common people to bring accountability and transparency in the
administration.However,accountabilitycannotbeachievedwithouttransparencyandruleof
law. Under section 4(1)(d) of the RTI Act, every public authority is required ‘to provide
reasons for its administrative or quasi-judicial decisions to the ‘affected persons’, which
leaves no scope for any arbitrary decision.
Participation
A true democratic nation runs with the active participation of its aware citizenry in the
transparent and accountable functioning of its government. By givingthepeopleofIndiaa
propermechanismandproceduretoexercisetherighttoinformation,theRTIActhashelped
India realise its primary objective of growth of individual citizens, as a democratic country.
Accessibility
Right to Information makes it possible to easy access of information from government
departments, documents, records, services, finances and policies to all sectors of the
community. A common poor person interferes in the matter of government regarding
development.TheRighttoInformationActbyprovidingeasyaccesstoinformationreduces
the established long gap between citizens and administration and thus helps in the nation
building process. Every person becomes aware about day-to-day activities of the government.
Conclusion
IntheabovecontextwecansaythattheRighttoinformationActhasnotbeenenactedonly
asaninformationprovider,itisaninstrumentthatauthorizesthecommonpeopletotakepart
in the decision-making process of the government. The Act also justifies the objectives of
good governance i.e., – transparency, accountability,predictabilityandparticipation.Which
is the true essence of good governance.
Discipline and Disciplinary Procedure in Labour Laws: An Administrative Law
Perspective
Introduction
Labourlawseekstoregulaterelationsbetweenanemployerandworkmen.Thereachofthis
lawissowidethatittouchesthelivesofmillionsofmenandwomen.Overtheyears,labour
laws have undergonechangewithregardtotheirobjectandscope.Earlylabourlegislations
were enactedtosafeguardtheinterestofemployers.Theyweregovernedbythedoctrineof
laissez faire. Modern labour legislation, on the other hand, aims to protectworkersagainst
exploitationofemployers.IndustrialDisciplineisasinequanonforthewell-orderedconduct
ofindustrialactivityandbetterproductivity.TheLabourLawshavelaiddownaprocedureto
solve mattersrelatingtothedisciplineoftheemployeeswhichisknownastheDisciplinary
Process.Althoughthereisnostatuteorlawspecificallylaysdowntheproceduretoconduct
thedisciplinaryenquiryandwheretherulesaresilentaboutdisciplinaryprocedure,thecourts
havestressedobservanceoftheprinciplesofnaturaljustice.NaturalJusticeisavitalconcept
inadministrativelaw.Theprinciplesofnaturaljusticeoffundamentalrulesofprocedureare
the preliminary basis of a good administrative set up of any country.
Through this lecture, we will try to understand the meaning and scope of misconduct,
discipline and disciplinary procedure in Labour laws and the role of natural justice in
departmental proceedings.
Meaning of Industrial Discipline
Industrialdisciplinemeansworkingbyemployeesaccordingtorules,regulationandcodeof
conduct in the industry. Industrial discipline signifies orderliness. It is the opposite of
disorderinemployees'behavioursandactions.Itissaidtobegoodwhenthemembersofan
organisation willingly follow the rules and regulation within the standards of acceptable
behavioursandwillinglyfollowtherulesandregulationsoftheenterprise.Itissaidtobebad
when subordinates either do this reluctantlyandunwillinglyoractuallydisobeyregulations
and standards of acceptable behaviour as promulgated by the need of enterprises.
It has been said that "Every organisation must have discipline to achieve its objective,
employee discipline has been defined as orderly behaviour."
Importance of Industrial Discipline
Industrial discipline isasinequanonforthewell-orderedconductofindustrialactivityand
betterproductivity.Disciplineisessentialfortheworkersthemselvesand,infact,economyof
anycountrydependsupontheindustrialoutputofthatcountry.Withoutthelawofindustrial
discipline, society's productive facilities could not function, just as without the penal law
society itself could not function.
Objectives of Industrial Discipline
The main objective of Industrial discipline is to:
1. Get co-operation of subordinateswithintheframeworkofIndustrialpolicyforfulfillingthe
target and not merely to enforce authority;
2. To reform the offender causing displeasure, deter others from making the same mistake.
Meaning and Scope of Misconduct
The expression 'misconduct' hasnotbeendefinedinanyIndustriallegislationbutunderthe
Model standing order of the Industrial Employment (Standing Orders) Act, 1946 the
following conduct shall be deemed to be misconduct.
⮚ Intentional insubordination or disobedience, whether alone or in combination with
others, to any lawful and reasonable order of a superior.
⮚ Theft, fraud or dishonesty in connection with the employer’s business or property.
⮚ Intentional damage to or loss of employer's goods or property.
⮚ Taking or giving bribes or any illegal gratification.
⮚ Habitual absence without leave or absence without leave for more than 10 days.
⮚ Habitual late attendance.
⮚ Habitual breach of any law applicable to the establishment
⮚ Disorderly behaviour during working hours at the establishment or any act subversive
of discipline.
⮚ Habitual negligence or neglect of work.
⮚ Frequent repetition of any act or omission for which a fine may be imposed to a
maximum of two per cent of wages in a month.
⮚ Striking work or inciting others to strike work in contravention of the provisions of
any law or rule having the force of law.
⮚ Sexual harassment which includes such unwelcome sexually determined behaviour
(whether directly or by implication) as-
(i) physical contact and advances; or
(ii) a demand or request for sexual favours; or
(iii) sexually coloured remarks; or
(iv) showing pornography; or
(v) any other unwelcome physical, verbal or non-verbal conduct of sexual nature.
In Union of India v. J. Ahmed, the Supreme Courtcautionedthatfailuretoattainhighest
standardofefficiencyintheperformanceofduty,permittinganinferenceofnegligence,may
besufficientgroundfornotconsideringanemployeeforpromotionbutwouldnotconstitute
'misconduct' indicating lack of devotion to duty.
In Mahendra Singh Dhantwal v. Hindustan Motors Ltd., a three judge bench of the
Supreme Courtobservedthatstandingordersofacompanymaydescribeonlycertaincases
of misconduct and thesamecannotbeexhaustiveofallthespeciesof'misconduct'whicha
workman may commit.
In A.L. Kalra v. Project &EquipmentCorporationofIndiaLtd.,DesaiJobservedthat
sincemisconductwhenprovedentailspenalconsequences,itisobligatoryontheemployerto
specify and define it with precision andaccuracysothatanyexpostfactointerpretationof
some incident may not be alleged as misconduct.
In W.M. Agnani v. Badri Das, Gajendragadkar J observed that, when there are standing
orders certified under the Industrial Employment (Standing Orders) Act, there may not be
difficultybecausetheydefine'misconduct'broadly.Butintheabsenceofthestandingorders,
orwhereverIndustrialEmployment(StandingOrders)Actisnotapplicable,thequestionwill
havetobedealtwithreasonablyandinaccordancewithcommonsenseandwhatactscanbe
treated as acts of misconduct would depend upon the facts and circumstances of each case.
Procedure for Disciplinary Action
No procedure as such has beenprescribedfordisciplinaryactioneitherundertheIndustrial
DisputesActorintherulesmadethereunderwhichshouldbefollowedbeforeinflictingany
punishment on an industrial worker. However, under the Industrial Employment (Standing
Orders)Act,theemployerisrequiredtoprescribethroughthestandingorderstheprocedure
fortakingdisciplinaryaction.Inthisrespect,themodelstandingordersframedbythecentral
government under the Industrial Employment (Standing Orders) Act,aregenerallyadopted
by the employers. The procedure prescribed by the statutory bodies/corporations and
government companieshavelaiddownbroadguidelinesforholdingdepartmentalenquiries.
Where the rules are silent about disciplinary procedure, the courts have emphasised
observance of the principles of natural justice before visiting an employee with punishment.
Principles of Natural Justice
Natural Justice is a vital concept in administrative law. The principles of natural justiceof
fundamental rules of procedure are the preliminarybasisofagoodadministrativesetupof
anycountry.NaturaljusticeisanexpressionofEnglishcommonlaw,whichimpliesfairness,
reasonableness, equity and equality. It representshigherproceduralprinciplesdevelopedby
judges, which shall be followed by the judicial, quasi-judicial and administrative bodiesin
making a decision affecting the rights or status of an individual.
Englishlawrecognisestwoprinciplesofnaturaljustice,thefirst-amanmaynotbeajudge
in his own cause (Doctrine of Bias) ; and the Second - a man should not be condemned
unheard (Fair Hearing) andtheRomansplacedthetwoprinciplesintwomaxims(1)Nemo
judex in causa sua; and (2) Audi alteram partem.
InSyndicateBankv.GeneralSecretary,SyndicateBankStaffAssociation,theSupreme
Court had stated the essential elements of the principles of naturaljusticewhichare(a)no
man shall be judge in his own cause and no man shall be condemned, either civilly or
criminally, without being afforded an opportunity of being heard in answer to the charge
madeagainsthim.Incourseoftimebyvariousjudicialpronouncementsthesetwoprinciples
of natural justice have been expanded, e.g.,apartymusthaveduenoticewhenthetribunal
willproceed;thetribunalshouldnotactonirrelevantevidenceorshutoutrelevantevidence;
ifthetribunalconsistsofseveralmemberstheyallmustsittogetheratalltimes;thetribunal
should act independently and should not be biassed against any party; its action shouldbe
based on good faith and order and should act in a just, fair and reasonable manner.
Nemo Judex in Causa Sua or Doctrine of Bias
In Kharad & Co. Ltd. v. Its Workmen,thecourtheldthattosatisfythefirstprincipleof
Natural Justice the first and foremost requirement is that the enquiry officer must be an
impartial person. The guiding principle is that the enquiry should be conducted with
scrupulousregardfortherequirementsoftherulesofnaturalJusticei.e.withoutbiasandby
giving the delinquent employee an opportunity for adequately representing his case as the
question of validity of the action taken by the employer is at issue.
In Associated Cement Co. Ltd. v. Their Workmen, the Supreme Court held that the
enquiry officer must be an impartial person. But the fact that the enquiry officer is an
employee or officer working in the same organisation and under the disciplinary authority
does not mean that he cannot be an impartial person or cannot hold any enquiry into the
misconduct of anemployeeofthesameorganisation.Whatisrequiredisthatheshouldnot
bebiassedand/orshouldnotimporthispersonalknowledge,orknowledgeofhiscolleagues
while considering the explanation given by the workman. He should not have relied on
reports received from witnesses in another enquiry.
In G.R. Venkateshwara Reddy v. Karnataka State Road Transport Corporation, the
Karnataka High Court has laid down the following requirements of reasonable procedure,
subject to any special provision relating to procedure in the relevant rules, regulations,
standing orders or a statute, to be followed in a departmental enquiry:
i) Theemployeeshouldbeinformedoftheexactchargeswhichheiscalleduponto
meet.
ii) He should be given an opportunity to explain any material relied on by the
management to prove the charges.
iii) Theevidenceofthemanagementwitnessesshouldberecordedinthepresenceof
thedelinquentemployeeandheshouldbegivenanopportunitytocross-examine
such witnesses.
iv) The delinquent employee shall either be furnished with the copies of the
documents relied on by the management or be permitted to have adequate
inspection of the documents relied on by the management.
v) The delinquent employee shall be given an opportunity to produce relevant
evidence-bothdocumentaryandoralwhichincludetherighttoexamineselfand
otherwitnesses;andtocallforrelevantandmaterialdocumentsinthecustodyof
the employer.
vi) Wheretheenquiryauthorityisdifferentfromdisciplinaryauthority,thedelinquent
employeeshallbefurnishedwithacopyoftheenquiryreportandbepermittedto
make a presentation tothedisciplinaryauthorityagainstthefindingsrecordedin
the enquiry report.
Audi Alteram Partem or Fair Hearing
In Ajit Kumar Nag v. General Manager(P.J.)IndianOilCorporationLtd.,theruleof
audi alteram partem, in its true sense, means that a person against whom an order to his
prejudice may be passed should be informed oftheallegationsandchargesagainsthim,be
given an opportunity of submitting his explanation thereto and have the right to know the
evidence, both oral or documentary, by which the matter is proposedtobedecidedagainst
him.Hemustbeallowedtoinspectdocumentswhicharerelieduponforthepurposeofbeing
usedagainsthim,tohavethewitnesseswhoaretogiveevidenceagainsthimexaminedinhis
presenceandhavetherighttocross-examinethem.Alsoheshouldbegiventherighttolead
his own evidence, both oral and documentary, in his defence before an impartial body
(enquiryofficer).Theprinciplesofnaturaljusticearenotrigidorimmutableandhencethey
cannot be imprisoned in a straitjacket formula.
Asamatterofgeneralrule,theprinciplesofnaturaljustice(audialterampartem)applyinall
cases where an action results in civilorpenalconsequencesagainstanindividualexceptin
thosecaseswheretheseprincipleshavebeenexcluded,expresslyorbynecessaryimplication.
The exceptional situations in which these principles have been expressly excluded find
expressmentionunderthesecondprovisiontoclause(2)toArticle311oftheConstitutionof
India applicable to civil servants. Under this provision, a civil servant can be removed,
dismissedorreducedinrankbywayofpunishmentwithoutanynoticeorenquiryunderthe
following circumstances:
a. where the person is convicted on a criminal charge;
b.wherethedisciplinaryauthorityissatisfiedforthereasonstoberecordedinwritingthatit
is not reasonably practicable to hold an enquiry; and
c.wherethePresidentorGovernor,asthecasemaybe,issatisfiedthatintheinterestofthe
security of the state, it is not expedient to hold such an inquiry.
Thejustificationsforthesethreeexceptionsarethattheaudialterampartemrulecouldnotbe
invoked if the impact of this rule would have theeffectofparalysingtheadministrationor
becoming prejudicial to the public interest or the country.
Conclusion
I conclude with these words that the Industrial discipline is the epitome of any industry.
Discipline is always required to make a conducive atmosphere,ashasbeensaidbySwami
Vivekanand,"Itisgooddisciplinetobeforcedtoworkforwork'ssake,eventothelengthof
not being allowed to enjoy the fruits of one's labour." It means working by employees
accordingtorules,regulations,andcodesofconductintheindustry.Incaseofanyviolation
oftherule,orregulationoftheindustry,thewrongdoershouldbepunished.Buttheconcern
is that the procedure of the disciplinary enquiry should be just, fair, andreasonable.Inthe
absence of formal procedure or statutory procedure, there shall be somethingonwhichthe
inquiry holder should rely. For the same reason, the courts have evolved the principle of
naturaljusticetobefollowedfortheproceedingsofdiscipline.Boththeprinciplesofnatural
justice, i.e.,noonecanbeajudgeinhisowncauseorhearanotherside,alsoplayedavery
pertinent role in this regard. We have come to know through different cases that, in the
absence of formal procedure, the courts have evolved and applied the principle of natural
justice. In course of time by various decisions, these two principles of naturaljusticehave
beenexpanded,e.g.,apartymusthaveduenoticewhentheinquirywillproceed;theenquiry
officer should not act on irrelevant evidence or shut out relevant evidence. If the enquiry
committeeconsistsofseveralmembers;theyallmustsittogetheratalltimes.Thecommittee
should act independently and should not be biassed against any party; its action shouldbe
based on good faith and order and should actinajust,fairandreasonablemanner. Wecan
say that following the principles of Natural justice is an essential part of the disciplinary
proceedings and the courts have always emphasised on it through their various decisions.
Thank you very much.
Judicial Control over Administrative Actions - Remedies for Administrative Wrongs and
Exclusion of Judicial Review
Introduction
Administrative law as a branch of public law has acquired importance in recent times.We,in
India, have a democratic polity based on the concept of public accountability and open
governance.Butinpractice,thelegislativeandexecutiveareone,executivecontrolslegislative.
Thisfusionhaslefttheexecutiveunbridled.Tochecktheunrestrictedpowersofadministration,
the only hope lies in the judiciary. The Courts have risen to the occasion and have devised
variousmethodsandtechniquestogivesolacetothecommonman.Inthismodule,anendeavour
has been made to discuss the judicial remedies available against administrative action in India.
It is now settled that every state action should not be against the rule of law. The simple
proposition is that administrative functionaries should not act beyond their jurisdiction(ultra
vires) and if any action is unlawful, the Courts have the powers to determine and to award
suitable relief. In India the power exercised by the judiciary against administrative action is
justifiedbythecombinationof“theprinciplesofseparationofpowers,ruleoflawandprinciples
ofconstitutionalityandthereachofjudicialreview.”TheapexCourtinSarojiniRamaswamiv.
Union of India, said:
“Judicial review is the exercise ofthecourt’sinherentpowertodeterminelegalityofanaction
andawardsuitablerelief.Thispowerdoesnotneedfurtherstatutoryauthoritysinceitisgranted
by the Constitution of India to the superior courts.”
The most significant feature of administrative law is to consider how the administration is
accountable to the judiciary? In the present scenario, due to increasing functions of
administrative bodies, it is imperative to consider whatever administrative functionaries are
doing,accordingtothetermsoftheConstitutionornot.Courtsareplayinganimportantroleto
check the powers of executivesbecausethejudiciaryhasbeenconferredalotofpowersinthe
Constitution itself in comparison to the legislatures. As observed by Professor Jain -
“The real cardinalofdemocracyliesinthecourtsenjoyingtheultimateauthoritytorestrainall
exercise of absolute and arbitrary power. Without some kind of judicial power to control the
administrative authorities, there is a danger that they may commit excess and degenerate into
arbitraryauthoritiesandsuchadevelopmentwouldbeinimicaltoademocraticConstitutionand
the concept of rule of law.”
Origin and Development of Judicial Review in India
TheconceptofjudicialreviewhasoriginatedanddevelopedfromtheU.S.A.Indiahasfollowed
thecommonlawsysteminevolvingcontrolmechanismsovertheadministrativeauthoritiesand
therefore courts of law enjoy powers to control arbitrariness and discretionary powers of
administrativebodies.SincewebelieveinthesupremacyoftheConstitutionandruleoflaw,itis
expedient that all organs of the Government should function according to the mandate of the
Constitution and because the Supreme Court interprets the Constitution, all authorities come
underthescannerofthejudiciary.Intheexerciseofstatutory,non-statutorypowers,ithastobe
ensuredthattheyarenotviolativeofanyofthemandateoftheConstitution.InNobleResources
Ltd. v. State of Orissa, the apex Court observed that anyrule,regulationwhichisinconsistent
withtherighttoequalitywouldbeunconstitutionalevenincontractualmatters.Butitcannotbe
exercised when allegations and averments are political in nature.
Basically,thepowerofjudicialreviewcanbeexercisedbythecourtagainstarbitrarinessinthe
functioning of administrative authorities, non-complianceoftheprovisionsoftheConstitution
and when the court is satisfied that abuse of discretionary powers is the main element involved.
InStateofMaharashtrav.PrakashPrahaladPatti,theSupremeCourtalsoobservedthatinpolicy
matters,thecourtshouldnotordinarilyinterfere,whileexercisingpowerofjudicialreview.The
Supreme Court, in DDA New Delhi v.JointActionCommitteeAllotteeofSFSFlats,hasheld
that when the plea is raised that the impugned decision is a policy decision, the court can
interferebecausethepolicyisnotoutsidethepurviewofjudicialreview.Thecourtalsoobserved
that broadly policy decision is subject to judicial review on the grounds the following grounds:
⮚ if it is not according to the mandate of the constitution;
⮚ if it is violative of any provision of the Statute, Act and Regulation;
⮚ If the question of excessive delegation is involved;
⮚ if the policy of the administration is against the public policy or any statute.
Modes of Judicial Control in India
The forms of judicial control on administrative action can be classified into three major heads:
1. Constitutional
2. Statutory
3. Ordinary or Equitable
Constitutional Framework for Judicial Control over Administrative Actions
OurConstitutionprovidesvariousprovisionstobringtheadministrativeactionunderthecontrol
and supervision of the superiorCourts.TheseConstitutionalremediescanbeconsideredinthe
following manner:
Article 13 of the Constitution says that the State shall not make any law, by- law, rules, or
regulations etc., which are inconsistent with the Constitution.
Article 32 and 226 oftheConstitutionprovidesextraordinaryremedies.Article32isarightas
wellasaremedy.TheSupremeCourthasbeenextremelyliberalandfavourabletothepetitioner
who moves it. The Court has devisednewepistolaryproceedingsunderwhichevenapostcard
written to the Court has been considered as appropriate proceedings. In cases of breach of
fundamental right, both the Court, theSupremeCourtandtheHighCourt–areboundtoissue
thewritsnamedintheseArticles.TheseareextraordinaryorPrerogativeorhighprerogative,as
theyhavebeenknowninEngland.ThescopeofthepowerundertheseArticlesisverywide.The
Courthasevengrantedcompensationinwritproceedings.Thewritofhabeascorpus,mandamus,
quo-warranto,certiorariandprohibitionhavebeenveryeffectivetokeepthevariousauthorities
within the bounds of the law.
⮚ Habeas Corpus: A writ provides speedy remedy of testing the validity of a person’s
detention or imprisonment.
⮚ Mandamus: A writ is issued as a command ordering a person to perform a public or
statutory duty.
⮚ Quo Warranto: Thiswritorlegalactionrequiringapersontoshowbywhatcapacityan
office is held, claimed, or exercised.
⮚ Certiorari: Writ issued after the case is heard and decided for quashing thedecisionof
lower court without or in excess of jurisdiction.
⮚ Prohibition: Act or practice of forbidding something by law.
Under Article 226, the High Court of the State exercises the power of issuance of five writs
against the states or the publicauthorities,toinfringeandviolatethefundamentalrightsofthe
citizens. Not only the writs, but the Court has the power to give orders and directions too.
AppealstotheSupremeCourtunderArticles131to136,therearecertainarticlesthatensureand
establish the promotion of judicial reviewintheIndianconstitution.Article131dealswiththe
original jurisdiction of SC relating to the Centre - State and Inter-state disputes. Article132a
significant measure providesappellatejurisdictionofSCinConstitutionalcases,Article133in
civil cases and Article 134 in criminal cases respectively. Simultaneously, Article134Adeals
with the certificate for appeal to the Supreme Court from the High Court. Again Article 135
empowerstheSupremeCourttoexercisethejurisdictionandpowersofthefederalCourtunder
pre-constitutional law and most importantly Article 136 deals withspecialleavetoappeali.e.,
another dimension of judicial review to examine and evaluate the judgement, order, decree,
determination of any court, tribunal and any other authority. Besides, Article 143, 245, 246,
251-254 and 372arealsorelevantprovisionsoftheConstitutionrelatingtothejudicialreview.
Article 227 also deals with the supervisory jurisdiction of High Courts to take action against
administrative actions.
UnderArticle300,theCourtshavebeenempoweredtoentertainandallowpetitionsfordamages
againstthewrongsdonebyanygovernmentservant.TheconstitutionalremedyofArticle299is
available for fixing the state's contractual liability.
Public Interest Litigation
In a number of cases, the Supreme Court contributed a lot to dispensation of justice to the
oppressed, deprived and ignorant masses by taking actions against administrative actions.
LokpalandLokayuktaarealsoaneffectivemechanismtocontrolarbitrarinessandcorruptionof
administrative authorities in implementation of administrative policies.
Statutory Judicial Control
As regards the second mode of judicial control, there aremanystatutesinwhichsomespecial
provisions for reference or revision by specified Courts onspecificfaultsrelatingtoparticular
administrative action are provided. Statutory review can be divided into two parts.
i. Statutory Appeals
Wecanfindaglimpseofamechanismforappealagainstthedecisionofastatutorytribunalon
pointoflawinWorkmen’sCompensationAct.InsomeActs,provisionsforappealaregivenon
everypointinthesamewayasitisgivenagainstthedecreeororderofacivilcourti.e.,Section
40 of the Disputed Persons (Debt Adjustment) Act 1951.
ii. Reference to the High Court
Simultaneously, Section 256 of the Income Tax Act, 1961 provides the remedy of reference
against the decision of the administrative tribunal to the High Court.
Ordinary or an Equitable Judicial Control
Locus Standi and Public Interest Litigation
Introduction
In the field of constitutional jurisprudence, the traditional rule is that a person whose
fundamentalrightshavebeenviolatedhastherighttomovetheSupremeCourtfortheremedyof
his grievance. This rule is known as the rule of Locus Standi. As per the concept, only an
aggrievedpersonhasarighttocomplainunderArticle32.Thisruleresultsinthedenialofequal
access to justice to those who were not in a position or incapable to move the court for their
socialoreconomicreasons.Theeraofpublicinterestlitigationhaswidenedthescopeofruleof
Locus Standi. TheSupremeCourthasnowconsiderablychangedtherule.ThedoorsofPublic
Interest Litigation have been opened by the Supreme Court with a view to provide justice to
thosewhocannotgetitthemselves.Inanumberofcases,theSupremeCourtcontributedalotto
disadvantagedsectionsofsocietybygivingreliefandremedies,butinanumberofcases,ithas
beenobservedthatthismechanismwasmisusedbypeopleatlarge.Toaddressthis,theSupreme
Courtissuedsomerestrictionstoapplythisremedy.Thepresentmoduleexploresalltherelated
aspects like origin and development of Public Interest Litigation, judicial contribution of
promotionofrightsofpeoplethroughPublicInterestLitigation,merits,demerits,significanceof
public interest litigation in the present scenario in brief.
Locus Standi
"LocusStandi"referstotherightofapersontoapplyforawrit.Thecourtwillhavetoconsider
whetherthepetitionerhastherighttoapplytothecourtornot.Theattitudeofthecourtsonthis
issueisnotuniform.Asageneralruleonly,personsaggrievedbythedecisionwhoselegalright
hasbeeninfringedcanapproachtheHighCourt.InthecaseofCalcuttaGasCompanyv.Stateof
WestBengal,theSupremeCourtheldthattherightswhichareenforcedunderArticle226should
ordinarily be the personal rights of the petitioner. Generally, the petitioner seeking a remedy
under article 226 shouldhaveadirectandsubsistinginterestinthematter.Butinthecaseofa
fundamental right, the Supreme Court has entertained a petition under Article 32 where the
petitioner had a right to be noticed by the Court.
Liberalisation of the Principle of Locus Standi
The principle of Locus Standi was liberalised in the case of Fertilizer Corporation Kamgar
Unionv.UnionofIndia&Ors.Inthiscase,theworkersofSindriFertilizerFactoryimpugned
thelegalityofthesaleofcertainmachinerybytheBoardofDirectorsonthegroundthatthesale
was arbitrary and unfair, causing a heavy loss to the public exchequer and that the sale had
jeopardised the employment of a large number of workers. The court dismissed the petition,
holding that the petitioner’s rights under Article 14 and Article 19 (1) (g) were not infringed.
Justice V. R. Krishna Iyer was more emphatic when he said:
“Locus Standi must be liberalised to meet the challenges of the times. Ubi Jus Ibi Remedium
(where there is a right there is a remedy) must be enlarged to embrace all interests of
public-minded citizen’s organisations with a serious concern for the conservation of public
resources and thedirectionandcorrectionofpublicpowersoastopromotejusticeinitstriune
facets.” PIL contributed profusely to the liberalising principle of Locus Standi. In National
TextileWorkers’Unionv.P.R.Ramakrishna,theSupremeCourthasheldthattheworkersofthe
company under the Companies Act, 1956 have Locus Standi to present their case before the
Court. In S. P. Gupta v. President of India, the Supreme Court upheld the Locus Standi of
lawyers to challenge the validity of the transfer of the judge, the refusal to re-appoint as
AdditionalJudgeofaHighCourt,andtheUnionLawMinister'scircularseekingjudges’consent
for transfer outside the state. Justice P. N. Bhagwati stated the notion of Locus Standi in the
following words:
"The traditional rule of standing, which confinesaccesstothejudicialprocessonlytothoseto
whomlegalinjuryiscausedbyalegalwrong,hasnowbeenjettisonedbythiscourt.Thenarrow
confines within which the rule of standing was imprisoned for long years as a result of the
inheritanceoftheAnglo-Saxonsystemofjurisprudencehavebeenbrokenandanewdimension
hasbeengiventothedoctrineoflocusstandi,whichhasrevolutionisedthefullconceptofaccess
to justice in a way not known before in the western system of jurisprudence".
However,therelaxationoftheruleoflocusstandimayhaveincreasedlitigation.Therefore,itis
the important duty of the Court to check this with proper judicial restraints.
Public Interest Litigation (PIL)
Theruleoflocusstandiresultsinthedenialofequalaccesstojusticetothosepersonswhoare
not so socially and economically capable of exercising their right to get relief from thecourt.
"Lest the golden key to unlockthedoorsofjusticeremainonlywiththemoneyedpeople",the
SupremeCourttookadynamicapproachandpioneeredtheconceptofPublicInterestLitigation
permitting litigation of ‘public spirited persons’ for the protection of the rights of any other
person.InMumbaiKamgarSabhav.AbdulBhai,JusticeKrishnaIyersowedtheseedsofPILby
liberalising the principle of Locus Standi and observed:
"Public interestispromotedbythespaciousconstructionoflocusstandiinoursocio-economic
circumstances." Representative actions, pro bono publico and the like are in keeping with the
current ascent of justice to the common man".
Meaning of Public Interest Litigation(PIL)
The meaning of Public Interest Litigation can be well understood by thefollowingdefinitions
mentioned below:
According to the Supreme Court inSheela Barse v.Union of India:
"TheproceedinginapublicInterestLitigationareintendedtovindicateandeffectuatethepublic
interest by prevention ofviolationoftherights,constitutionalorstatutoryorsizeablesegments
ofthesocietywhileowingtopoverty,ignorance,social,andeconomicallydisadvantagedcannot
themselves assert and quite often not even aware of these rights."
Inlightoftheabovedefinition,wecansaythatPILisanadvocacyofthepublicinterestbysome
public-spiritedpersonswhopursuetheproblemsofthedisadvantagedsectionsofsocietytoseek
remedy and to identify the issues for removing injustice faced by them. Such cases are also
called "class actions’, "social interest litigation" or "representative proceedings". Many of the
judicial activists believe that PIL is the weapon in the hands of a public-spirited person for
addressing, recognizing the interest of a common man and assisting in providing justice.
In a number of decisions, the highest court of the country has expanded the scope of
constitutional provisions to protect the human rights of citizens and has tried its level best to
advance Indian law in consonance with the Universal Declaration of Human Rights, which
basically promotes and establishes human rights.
Origin and Development of Public Interest Litigation (PIL)
We can find a glimpse of Public Interest Litigation through a counsel for Public Interest Law
establishedbytheFordFoundationintheU.S.Ain1976.AccordingtotheFordFoundation,PIL
can be described in the following words:
“Public Interest Law" is the name that has recently been given to efforts to provide legal
representation to previously unrepresented groups and interests. Such groups and interests
include the proper environmentalists, consumers, racial and ethnic minorities and others”.
The significant approaches to addressing and protecting the public interest laid thefoundation
stone of the dynamic concept of judicial activism of the late 80s and early 90s in India. This
periodsawaspateofmyriadPILsrelatedtocommercialrights,custodialviolence,exploitation
of marginal segments of society, issuesrelatedtochildren,women'sharassment,theprotection
andpreservationoftheenvironment,ecology,forest,marinelife,wildlife,historicalmonuments,
labour, etc., expanding the horizons of the right to life and personal liberty.
As Justice J. S. Verma rightly observed:
"If today the judiciary is forced to stretch its arms beyond what appeared to be its intended
limits,itiswithaviewtoundoingtheexesoftheexecutivebackedbyadifferingmajorityinthe
legislature. What if the legislature starts behaving with grace and executive lounge tomanage
within its genuine powers"? In performing its high Constitutional obligations, the judiciary
played a verysignificantrolebytakingintoconsiderationthepositionofdisadvantagedpeople
and providing a platform for getting relief through Public Interest Litigation.
"Common law could not have grown", "if judges had hesitated to enter the arena of judicial
activism, holds Mr.JusticeAMAhmadi"ThePILisaninstrumentthatallowscitizenstobring
unscrupulous individuals to task and secure justice for the common man."
Constitutional Provisions
Public interest Litigation (PIL) is a new technique through which unrepresented segment’s
interestisprotectedbytheCourts.PublicInterestLitigationmeanslitigationtoprotectthepublic
interest.InIndia,Article32oftheConstitutionprovidesamechanismtoconnectthepublicwith
thejudiciary.APublicinterestLitigation(PIL)maybeoriginatedinaCourtbytheCourtitself,
in addition to the aggrieved party or third party. The judiciary has created Public Interest
Litigation (PIL) jurisprudence by relaxing the traditional rule oflocus standi.
In the case of S.P. Gupta v. President of India, Justice Bhagwati observed:
"ItisafascinatingexercisefortheCourttodealwithpublicinterestlitigationbecauseitisanew
jurisprudence which the Court is evolving, a jurisprudence which demands judicial
statesmanshipandhighcreativeability.Thefrontiersofpubliclawareexpandingfarandwide,
andnewconceptsanddoctrineswhichwillchangethecomplexionofthelawandwhichwereso
far embedded in the womb of the future are beginning to be born."
In the case of People’s Union of Democratic Rights V. Union of India, Justice Bhagwati
highlighted the object of PIL in the following words:
"Wewishtopointoutwithalltheemphasisatourcommandthatpublicinterestlitigation,which
is a strategic arm of the legal aid movement and which is intended to bringjusticewithinthe
reachofthepoormasseswhoconstitutethelawvisibilityareaofhumanity,isatotallydifferent
kind of litigation from ordinary traditional litigation, which is essentially of an adversary
character where there is a dispute between two litigating parties."
Procedure to File a Public Interest Litigation (PIL)
InthecaseofPIL,courtsarenotsoconcernedabouttheprocedureforfilingcasesincourts.In
some cases, the Supreme Court and High Courts, in the name of epistolary jurisdiction,
entertained "letter petitions" by theaggrievedpersonaswellasfromthepersonactingingood
faith and in the public interest. In some exceptional cases, courts have taken cognizance of
Suo-Motuonthebasisofnewsarticles.Severalpublic-spiritedpersonsonhavingbeenaffected
by the facts, violating human rights, filed Public Interest Litigation in various High Courts as
well as in Supreme Courts for the protection of human rights of the people. Therefore,
favourable results have come from providing protection of human rights to manysegmentsof
society.
Judicial Contribution
InHussainaraKhatoonv.HomeSecretary,StateofBihar,ahabeascorpuspetitionwasfiled
by placing reliance on the news article, and the Court ordered the release of all under-trial
prisoners.
InM.C.Mehtav.UnionofIndia,thecourtdirectedthegovernmenttouseaudio-videomedia
to generate awareness and information for protecting the ecology and also directed the
governmentforensuringactiveandawarecitizenrybyintroducingacompulsorysubjectonthe
environment in educational institutions.
In Bandhua Mukti Morcha v. Union of India & Ors., the Supreme Court held that the
meaning of life should be to live with human dignity, free from any kind of humiliation or
exploitation.TheCourtheldthatitisthedutyoftheStatetomakesuchakindoflabourstatute
that may serve the needs of the labour class in a dignified manner.
InthecaseofGauravJainv.UnionofIndia&Ors.,theSupremeCourthasprovideddetailed
guidelines for the rescue and rehabilitation of child prostitutes and children of such kind of
women who were thevictimoffleshbusiness.Thecourthasstressedtheneedfornotonlythe
state but the active participation of all voluntary non-government organisations and
public-spirited persons should come forward to remove this evil from society, generating
sensitivitytowardstheissuesrelatingtotherehabilitationeducation,employmentofprostitutes’
children, and coming to their aid to retrieve such women from prostitution.
InthecaseofVishakhav.StateofRajasthan,theSupremeCourtissueddetailedguidelinesfor
the prevention of sexual harassment of women at workplace until an enactment is passed to
address the issue.
InOlgaTellis&Ors.v.BombayMunicipalCorporation&Ors.,theSupremeCourthasheld
that the petition against removal from pavement being underanunfairandarbitraryprocedure
was maintainable under Article 32.
Compensation for Violation of Human Rights under Article 32
In M.C. Mehta v. Union of India, the Supreme Court observed that Article 32 is not only
preventive but also remedial and henceempowersthecourttoawardcompensationincasesof
violation of fundamental rights.
In the case of Rudul Sah v. State of Bihar & Ors., the Supreme Court has awarded Rs.
30,000/-as compensation for the irresponsible conduct of the jail authorities due to which the
petitioner remained in jail for 14 years.
Misuse of Public Interest Litigation (PIL)
Sinceitsadvent,thecourtshaveentertainedPILpetitionsonavarietyofsubjectsandissues.The
important contributions of the PILtoIndianjurisprudenceincludetherelaxedruleofstanding,
compensation for tort and enterprise liability, environmental pollution, etc. So PIL has now
attainedanimportantplaceintheadministrationofjustice.Buttherearesomeloopholesasthe
SupremeCourtinAshokKumarv.StateofWestBengalhasheldthat"PILshouldnotbeusedas
PublicityInterestLitigationorPrivateInterestLitigationor'PoliticalInterestLitigation".Awrit
petitioner who approaches the court for relief in the public interest should come with a clean
hand, heart,mind,andobjective".TheSupremeCourthasevolvedcertainprinciplestoprevent
misuse of public interest or socialinterestlitigation.Thecourtalsocautionedthattheabuseof
the process of the court in the name of the public interest will be punished by the Court.
Restrictions on Public Interest Litigation (PIL)
InthecaseofVillianurPyarkkaiPadukappuMaiyamv.UnionofIndia,theCourtobserved
that the only ground on which a person can maintain a Public Interest Litigation (PIL) isthat
whenthereisaviolationoffundamentalrightsandthelitigationhasbeeninitiatedforthebenefit
of the poor and underprivileged who are unable to come to Court due to some disadvantages.
InStateofUttaranchalv.BalwantSinghChaufal&Ors.,theSupremeCourtissueddetailed
guidelines to prevent misuse of public interest litigation, discouraging PIL filed for oblique
motives and encouraging genuine PIL.
Conclusion
Theimportanceofpublicinterestlitigationcannotbeundermined.ThePublicInterestLitigation
(PIL)isthemostpowerfulenginefordispensingjusticetotheoppressed,deprived,andignorant
masses. However, the time has come when such power is regulated. The Supreme Court has
formulatedvariousguidelines,someofwhichhavebeenmentionedinanumberofcases.Public
Interest Litigation may not be a panacea to cure all the maladies, yet it has been an effective
instrument in the enforcement of the fundamental rights of "We, the people of India".
Nature and Scope of Administrative Functions
Introduction
As per the theory of separation of powers, three organs of the government, namely; the
legislature,executive,andjudiciary,make,implement,andinterpretthelaw,respectively.There
is a variety of administrative powers. Administrative authorities issue a number of rules,
regulations, by-laws, orders, notifications, etc., which supplement the laws enacted by the
legislature; act judicially while adjudicating disputes between private persons; or take action
whichaffectstherightsofcitizens.Manyotherfunctionsdischargedbytheadministrationvary
from ministerial to discretionary. In thepresentperiod,therehasbeenaphenomenalchangein
the functions of the State and it turns out to be extremely challenging to find a distinction
between administrative and legislative powers or between administrative and judicial powers.
The involvement of the administration in legislation,adjudication,investigation,andexecutive
hasnecessitatedtheneedfornewmethodstocontroltheadministration.Thismodulepresentsan
overview on the characteristics of administrative functions and simultaneously emphasises the
differentfeaturesoflegislative,judicial,andministerialactionsandadministrativeorderstofind
out the nature of the function.
Aquestionwhichgenerallyarisesinadministrativelawistofindoutthetruenatureofanyact.
Classification of administrative functions is noteasybecausesometimesasingleact/procedure
may combine some characteristics of all three functions.
Attemptforclassificationisusefulbecausedifferentlegalconsequencesflow.Theremedyofan
aggrieved party also differs on the basis of the classification. The classification is made after
looking into consideration of the characteristics of administrative action. These features are
determined byanexaminationoftherelevantfacts,circumstances,consequencesoftheactand
provisions of the law authorising such acts. For better understanding, administrative functions
may be divided into the following heads:
i. Quasi-Legislative Functions
ii. Quasi-Judicial Functions
iii. Quasi-Administrative Functions
Quasi-Legislative Functions
Although the function of law making is conferred to legislature but sometimes due to certain
expediencies, the legislative body delegates its power of rule-making to executive or
administrative authority, which is considered a quasi-legislative function.
Legislative functions include making of new laws, modification, substitution, and repealing
existing laws. In India, thispoweriswithParliamentandStateLegislatures,andmakingrules,
regulations, laws and by-laws are some examples of legislative action of administration. An
instrument of a legislative nature byadministrativeauthoritiesiscalledsubordinatelegislation,
and the power of authority is limited by the statute. At the point when an instrument of an
authoritative sort is made via managerial specialists, it's called a"subordinateenactment,"and
that demonstrates that the force of power is restricted by the rules which presented these forces.
JusticeChinnappaReddysaidthatlegislativeactionhassomeessentialelementslikegenerality,
perspectivity,publicinterest,rightsandobligationsderivedfromit.Althoughitisnoteasy,these
elements help in differentiating quasi-legislative functions and quasi-judicial functions.
In Express Newspapers Private Ltd. & Ors. v. Union of India & Ors., the Supreme Court
heldthatthepowerofpricefixationofsugarisaquasi-legislativefunction.Itisverydifficultto
determineandclassifylegislativeandadministrativeactionsinpracticality,butifidentified,the
legislativefunctionsdidnotrequirecompliancewithprinciplesofnaturaljusticeunlessastatute
expressly requires.
The question of distinction between administrative action and quasi-judicial action was
considered by the Apex Court in the famous case of A. K. Kraipak & Ors. etc.v.Unionof
India & Ors.,
in the following words:
A. K. Kraipak & Ors. etc. v. Union of India & Ors. “For determining whether a power is an
administrative power or quasi-judicial power, one has to look at the nature of the power
conferred, the person or persons on whomitisconferred,theframeworkofthelawconferring
thatpower,theconsequencesensuringtheexerciseofthatpower,andthemannerinwhichthat
power is expected to be exercised”.
Acommitteehadmadeanattempttodefinetheelementsofanadministrativeact.Thenatureof
administrativeactionhasbeendefinedbytheSupremeCourtinRamJawayaKapur&Ors.v.
State of Punjab.Inthis case, the Supreme Court observed:
“Itmaynotbepossibletoframeanexhaustivedefinitionofwhatexecutivefunctionmeansand
implies. Ordinarily, executive power connotes the residue of governmental functions that
remains after legislative and judicial functions are taken away”.
Thus,"administrativeaction"meansanactionwhichisneitherlegislativenorjudicial.Itisworth
mentioning here the observations of the Supreme Court:
“The executive function comprises both the determination of policy as well ascarryingitinto
execution. This evidently includes the initiation of legislation, the maintenance of order, the
promotionofsocialandeconomicwelfare,thedirectionofforeignpolicy,infactthecarryingon
or the general administration of the state”.
Characteristics of Administrative Action
i. The basis of administrative action is governmental policy or expediency.
ii. Administrative action's nature is subjective rather than objective. The authority has
discretion to decide the procedure and the grounds on which action is taken.
iii. Generally, there is no need to follow the detailed procedure of collectingevidenceand
weighing arguments in administrative functions.
iv. Delegation and sub-delegation of administrative action is permissible.
v. Administrative action never decides a right but affects a right.
vi. Administrative actions are not strictly bound by the principle of natural justice.
vii. Writs of certiorari and prohibition are not always available against administrative action.
The present-day government plays countless functions as a result of the predominant way of
thinkingofsocialwelfarestate.Variousfunctionsaremadeovertonaturalandjudicialpersons.
Some government departments and autonomous bodies perform,execute,andimplementthose
functions which are conferred on them. In the pursuance of these functions, if there is any
infringement of fundamental rights, constitutional or legal rights by these bodies, the citizens
have therighttoapproachtheCourtforprotectionoftheirrights.Inthiscontext,thefollowing
actions are considered as administrative actions:
• Power to Issue a Licence (Dwarka Prasad Laxmi Narain v. State of Uttar Pradesh &
Ors.)
• Preventive Detention (A. K. Gopalan v. State of Madras)
• Acquisition or Requisition of Property (Province of Bombay v. Kusaldas S. Advani)
• Action Setting a Commission of Inquiry (Ram Krishna Dalmia v. Justice S.R.
Tendulkar)
• Entry of Names in Police Register (Malak Singh & Ors. vs. State of Punjab and
Haryana & Ors.)
• Directions to Officers’ Subordinate without the Backup of Law (Nagrajan v. Stateof
Mysore)
• Fact Finding Action (Narayanlal Bansilal v. Maneck Phiroze Mistry and Anr.)
• Assessment under the Sales Tax Act (State of Orissa and Anr. v. M/S. Chakobhai
Ghelabhai and Company)
Administrative actions can be challenged by judicial review. If any administrative action is
againstthePrincipleofNaturalJusticeandviolatestherightsofaperson,thecourtcandeclare
unconstitutional such actions. Both natural as well as artificial persons have the right to
challenge administrative action.
Extent
Administrative action takes effect on the date of the notification in the official gazette. The
importance of administrative action lies inthefactthat,beingawelfarecountry,agovernment
has to exercise so many powers efficiently for the good of the citizens throughadministrative
authorities. For ensuring this, it is very expedient to exercise such powers in good faith.
Some elements of administrative action are overlapping the legislative and judicial functions.
The line which draws a difference between them is very thin. But this doesn't completely do
awaywiththeclassification.Itisalwaysachallengeintheoryandanimpossibilityinpractiseto
find a precise dividing line between the legislative functions and administrative functions.
Recently, through the case of Union ofIndiav.CynamideIndiaLtd,theSupremeCourthas
observed:
“With the proliferation of delegated legislation, there is a tendency for the line between
legislationandadministrationtovanishintoanillusion.Administrative,quasi-judicialdecisions
tend to merge in legislative activity and, conversely, legislative activitytendstofadeinto,and
present and appearance of an administrative or quasi-judicial activity”.
The differentiation between legislative and administrative functions assumes significance
because of the publication, need of compliance with the principle of natural justice, sub
delegation, and duty to give reasons.
Judicial Functions
Judicial functions essentially declare pre-existing rights and liabilities and a judicial function
involves the following characteristics:
i. Presentation of the case by the parties to the dispute;
ii. If a dispute between parties is a question of fact, the evidences are required,
iii. If thedisputebetweenthepartiesisaquestionoflaw,thesubmissionoflegalargument
by the parties is required;
iv. adecisionwhichdisposesofthewholemattertofindingoutthefactsandapplicationof
the law of land.
Quasi-Judicial Functions
"Theword"quasi"standsfor"notexactly".Generally,afunctionissaidtobequasi-judicialifit
consists of some elements of judicial function but not all the elements of judicial function."
"Thedividinglinebetweenanadministrativepowerandaquasi-judicialpowerisquitethinand
has been gradually obliterated in recent years. The concept of quasi-judicial power has been
undergoingaradicalchange.Whatwasconsideredasanadministrativepowersomeyearsback
is now being considered as a quasi-judicial power."
But in thecaseofNagendraNathBorav.CommissionerofHillsDivisionandAppeals,the
Supremecourtwasoftheviewthat"whetherornotanadministrativebodyorauthorityfunctions
asapurelyadministrativeorinaquasi-judicialcapacitymustbedeterminedineachcase,onan
examination of the relevant statute and the rules framed there under, and the facts and
circumstances of the case determine the nature of the decision."
What is LIS?
ExplainingtheconceptofLIS,JusticeS.R.DasinProvinceofBombayv.KusaldasS.Advani
observed:
“Ifastatuteempowersanauthority,(notbeingaCourtintheordinarysense,)todecidedisputes
arising out of a claim made by one party under the statute whichclaimisopposedbyanother
party and to determine the respective rights of the contesting parties who areopposedtoeach
other there is a LIS….”
"Wheneveranybodyofpersonhavinglegalauthoritytodeterminequestionsaffectingtherights
ofsubjectshavingthedutytoactjudiciallyactinexcessoftheirlegalauthority,theyaresubject
to the controlling jurisdiction of the king's bench division to exercise these rights."
Ministerial Functions
Theterm"ministerialact"hasnofixedmeaning.Itreferstoaduty,inthedischargeofwhichno
element of discretion is involved. The functions ofthesectionofficerfallintothiscategory.A
minor element of discretion will not change the nature of ministerial functions. There are no
authoritative criteria of classification of administrative actions. But the court may apply this
classification in determining the dispute. The recording of minutes of a declaration of the
returning officer is a ministerial act. Minor discretionary element is not enough to debar the
Courts from characterising the functions as ministerial functions.
Nature and Scope of Administrative Instructions
Laches, Res Judicata and Doctrine of Exhaustion of Alternative Remedies
Introduction
The nature of writ jurisdiction under Articles 32 and 226 of the Indian Constitution for
enforcement of fundamental rights is mandatory, not directory. But as far as the power of the
HighCourtstoexerciseitspowerunderArticle226foranyotherpurposesisdiscretionary.This
power is subject to certain limitations, like territorial, constitutional, and self-imposed.
Self-imposed limitations direct the High Courts to use these powers judiciously and while
keeping into consideration the peculiarities of each case. The present module highlights those
self-imposed limitations which assist High Courtstoconsiderationornon-considerationofany
petition for seeking relief and remedy. Laches or unexpected delay, Principle of res judicata,
exhaustion ofalternativeremedy,suppressionofmaterialfacts,dismissalinLimine,conductof
parties are discussed in detail for providing a comprehensive understanding in exercising the
powers of High Courts under Article 226 of the Constitution. After going through thepresent
module, one will beabletounderstandtheapproaches,interpretations,andobservationsbythe
judiciary for entertaining petitions for seeking relief and remedies under Article 226. The
Constitution of India has not only declared fundamental rights but also provides an effective
mechanism to enforce them. Article 32 of the Constitution gives colour and teeth to the
Fundamental Rights. Remedies under Article 32 are available to an aggrieved person whose
fundamental rights have beeninfringed.HighlightingtheimportanceofArticle32,observedin
theConstituentAssembly,“WithoutthisArticle,thisConstitutionwouldbenullity.Itisthevery
souloftheConstitutionandtheveryheartofit”.InK.K.Kochuni&Ors.v.StateofMadras,
the ApexCourtheldthat“Article32isthemostpowerfulweaponinthehandsoftheSupreme
CourtofIndia.”UnderArticle226,similarpowersarealsoconferredontheHighCourts.Article
226 (1) provides:
“Notwithstanding anything contained in A
rticle 32, every High Court shall have power,
throughout the territories inrelationtowhichitexercisesjurisdiction,toissuetoanypersonor
authority, including in appropriate cases any Government, within those territories, directions,
orders or writs including writs in the nature of habeas corpus, mandamus, prohibition, quo
warranto, and certiorari, or any of them, for the enforcement ofanyoftherightsconferredby
Part III and for any other purpose”.
Although the powers of the High Courts to issue writs under Article 226 is much wider in
comparisontoArticle32becauseunderArticle226writscanbeissuedfortheinfringementsof
thefundamentalRightsoranyotherpurposes.So,thepoweroftheHighCourtis“apowerwide
enough, in all conscience, to be a friend in need when the summons comes in the crisis of a
victimofinjustice;andmoreimportantly,thisextraordinaryreservepowerisunsheathedtogrant
finalreliefwithoutnecessaryrecoursetoaremand.”SoHighCourtsenjoymorepowerstoissue
writs, orders, and directions, but the powers are subjected to certain limitations.
The Supreme Court in,Rohtash Industries Ltd. v. RohtashIndustries Staff Union, observed:
"The expensive and extraordinary power of the High Courts under Article 226 of the
Constitution is wide, as wide astheamplitudeofthelanguageusedindicatesandsocanaffect
anyperson,evenaprivateindividualandbeavailableforanyotherpurpose,evenoneforwhich
another remedy may exist. The amendmentstoArticle226in1966insertingArticle226(1-A)
reiteratesthetargetsofthewritpowersasinclusiveofanypersonbytheexpressivereferenceto
‘theresidenceofsuchperson’.Butitisonethingtoaffirmthejurisdictions,anothertoauthorise
its free exercise. The Supreme Court has spelt out wise and clear restraints on the use ofthis
extraordinary remedy and the High Courts will not go beyond those wholesome inhibitions
except wherethemonstrosityofthesituationorotherexceptionalcircumstancescallfortimely
judicial interdict or mandate. The mandate of law is justice and the potent drug should be
judiciously administered." The powers of the High Court under Article226thoughverywide,
are subject to certain limitations.
These limitations are:
i. Territorial
ii. Constitutional
iii. Self-Imposed
ItismandatoryfortheHighCourtstoissuewrits,orders,anddirectionstoenforcethem.Asthe
Supreme Court observed inDevilal Modi v. Sales TaxOfficer Ratlam:
“TherecanbenodoubtthattheFundamentalRights,guaranteedtothecitizens,areasignificant
feature of our Constitution and the High Courts under Article 226 are bound to protect these
Fundamental Rights.”
For enforcement of any legal rights, the jurisdiction of the High Court for issuing writs,
directions,andordersisdiscretionary,andthisdiscretionisofanextensivenature.Thisvastness
of power itself imposes an obligation on the High Courts to use these powersjudiciouslyand
with circumspection. In the exercise of these powers, the courts have evolved certain
self-imposed limitations.
The Supreme Court in thecaseofM.V.Kuriakosev.StateofKeralahasheldthatapetition
willnotbemaintainedforenforcingrightsunderanagreementorawardunderArticle32ofthe
Constitution. The discretion under 226 is generally regulated by the following legal principles:
Delay and Laches
Clause(2)ofArticle32dealswiththeprotectionoftherighttoseekremedyforinfringementof
fundamental rights. The Supreme Court shall have the power to issue directions and orders,
includingwrits,buttheremedymustbesoughtatareasonabletime.TheSupremeCourthasheld
thatthosewhoseektheremedyunderArticle32afteraconsiderabledelayareguiltyoflaches.It
will refuse to grant any remedy.Inotherwords,wecansaythatthelawhelpsvigilantpersons
whoseekremedywithinareasonabletime.Thequestionarisesoverherewhenapetitionshould
bepresentedbeforetheCourt.InTrilokchandMotichand&Ors.v.H.B.Munshi&Anr.,the
Court held that there is no prescribed period of limitation within which a person should geta
remedyunderArticle32.WecanfindtheanswerstatedbyJusticeHidayatullahinthefollowing
decision:
“Ishouldsaythattheutmostexpeditionisthesinequanonforsuchclaims.Thepartyaggrieved
must move thecourtattheearliestpossibletimeandexplainsatisfactorilyallsemblanceofthe
delay.”
Thequestionisoneofthediscretionsforthiscourttofollowfromcasetocase.Thereisnolower
limitandthereisnoupperlimit.TheSupremeCourtheldinthecaseofR.S.Makashi&Ors.v.
I.M.Menon&Ors.,thatapersonwhoiswillingtoseekremedymustalsoapproachthecourt
afterthearisingcauseofactionwithoutmakinganydelay,anddismissthepetitionontheground
of "Laches and Delay." In this case, a writ petition was filed after eight years against the
government'saction.ThisdelaywasnotconsideredbytheCourt.ButinR.S.Deodhar&Ors.
v.StateofMaharashtra&Ors.,theCourtconsideredapetitionafter11yearsoftheoccurrence
of the cause of action. Speaking for the Court, Justice P. N. Bhagwati observed:
“Itmaybenoticedthattheclaimforenforcementofthefundamentalrightsofequalopportunity
underArticle16isitselfafundamentalrightguaranteedunderArticle32andthisCourt,which
hasassignedtheroleofasentinelonthequiviveforprotectionofthefundamentalrights,cannot
easilyallowitselftobepersuadedtorefusereliefsolelyonthegenuinegroundoflaches,delay
or the like.”
Res Judicata
Section11oftheCodeofCivilProcedure,1908,prescribesthedoctrineofresjudicata,whichis
based on public policy and has been followed by the courts in exercising writ jurisdiction. A
personhastwoindependentremediesinviolationoffundamentalrights.Hecanmovedirectlyto
theSupremeCourtorHighCourt.ItwasheldinthecaseofDaryaoSinghv.StateofU.P.Ifa
HighCourtdismissesapetitiononmeritsunderaspeakingorder,ResJudicatawillapplyunder
Article 32 of the Constitution. But the partyhasarighttogototheSupremeCourtonappeal.
Justice P. B. Gajendragadkar,rightly submitted inthe following words:
“ThebindingcharacterofjudgementpronouncedbyCourtsofcompetentjurisdictionisitselfan
essentialpartoftheruleoflaw,andtheruleoflawobviouslyisthebasisoftheadministrationof
justice on which the Constitution lays so much emphasis.”
InanothercaseofVirudhunagarSteelRollingMillsv.GovernmentofMadras,theappellants
firstfiledawritpetitionand,afterthat,filedaLettersPatentappealintheHighCourt.Bothwere
dismissedwithoutgivingnoticetotheotherparty.ThentheyfiledawritpetitionintheSupreme
Court.Thepetitionwasdismissedduetoresjudicata.Butresjudicatadoesnotapplyifthecourt
observes that issues were not discussed before. There are some exceptions to this general rule:
Habeas Corpus
Theprincipleofresjudicatawillnotapplyinahabeascorpuspetitionwhere,onsometechnical
grounds like delay, alternativeremedy,etc.,theHighCourtdismissedthepetitiononmeritand
aftergivingareasonedorder.InLallubhaiJogibhaiPatelv.UnionofIndia&Ors.,JusticeR.
S. Sarkaria observed:
“Thepositionthatemergesfromsurveysisthattheapplicationofthedoctrineofconstructiveres
judicata is confined to civil actions and civil proceedings. The principle of public policy is
entirelyinapplicabletoillegaldetentionanddoesnotbarasubsequentpetitionforwritofhabeas
corpusunderArticle32oftheConstitutiononfreshgrounds,whichwerenottakenintheearlier
petition for the same relief.”
Dismissal in Limine
Although writ jurisdiction is discretionary except in violations of fundamentalrights,itisalso
necessarythattheexerciseofdiscretionshouldbebasedonsoundjudicialprinciples.Wherethe
claiminapetitionisprimafacie,unjust,frivolous,orvexatious,thecourtmaydismissapetition
summarily(inlimine),butifthepetitionerclaimsillegalityorarbitrarinessofapublicauthority,
it should be decided on merit. In Gian Chand Jain & Anr. State of Haryana & Ors., the
SupremeCourtcriticisedtheHighCourtfordismissingthepetitioninliminewithoutgivingany
reasons.
Alternative Remedy
Whereapetitionerhasanalternativeremedyinthewayofreview,revision,appeal,orstatutory
remedy to challenge any administrative action, the Court will not interfere and will not give
relief under Article 226. In the case of the State of Uttar Pradeshv.MohammadNooh,the
court established that "an alternative remedy is a rule of convenience, policy, and discretion
rather than a rule of law". The Supreme Court observed in the case:
"The fact that the aggrieved party has another and adequate remedy may be taken into
consideration by the Supreme Court in arriving at a conclusion as to whether itshould,inthe
exercise of its discretion, issue a writ of certiorari to quash the proceeding anddecisionofan
inferior Court subordinate to it;andordinarily,thesuperiorCourtwilldeclinetointerfereuntil
theaggrievedpartyhasexhaustedhisotherstatutoryremediesbeforethewritwillbegrantedisa
ruleofpolicy,convenience,anddiscretionratherthanaruleoflaw,andinstancesarenumerous
where a writ ofcertiorarihasbeenissuedinspiteofthefactthattheaggrievedpartyhadother
adequate legal remedies."
There are two exceptions to the rule of exhaustion of statutory remedies:
i. Where the impugned order is against the principle of natural justice
ii. Where the proceedings before the body are instituted under a law which isultra vires
The ordinary principle is that extraordinary remedies should not take the place of ordinary
remedies.ButsincetheinfringementoffundamentalrightsisviewedseriouslybytheCourtsand
speedyreliefisrequired,theCourtsdonotwaitforexhaustingtheordinaryalternativeremedies.
ItisnobarfortheissueofwritsundereitherArticle32orArticle226whenafundamentalright
has been violated. In K. K. Kochuni & Ors. v. State of Madras, the Court heldthatArticle
32(2)itselfbeingafundamentalrightforabreachthereof,theCourtwouldprovideanysuitable
remedy in spite of the availability of alternative remedies.
It is very relevant to mention here the observations of the Kerala High Court in this regard.
“The availability of an alternative remedy is never considered to be a bar to maintaining an
actionunderArticle226.Theruleisthattheavailabilityofanalternativeremedyisafactortobe
takenintoconsiderationintheexerciseofthediscretionaryjurisdictionvestedintheHighCourt
under Article 226.”
Though the remedyunderArticle226isdiscretionaryandcanberefusedwherethereexistsan
alternativeremedywhichthepetitionerhasnotsought.InT.K.Rangarajanv.Governmentof
Tamil Nadu & Ors., the Supreme Court held that inanexceptionalsituationwhen2lakhsof
employeesweredismissedonbeingstrikebythestategovernment,therewasnojustificationfor
the High Courts to refuse to entertain the petition (under Article 226) on the ground of an
alternativeremedyprovidedbythestate.TheGujaratHighCourtinAhmedabadCottonMfg.
Co. v. Union of India,observed:
“Any other remedy has to be for the redress of the injury for which this writ jurisdiction is
conferred and, therefore, it must be equally adequate or efficacious so that qualitatively and
quantitatively the same relief would be given for the redress of the injury to the petitioner.”
InNebhaandCo.&Ors.v.StateofGujarat&Ors.,ithasbeenheldthattheexistenceofan
alternativeremedywillbenobartotheCourt’spowertoentertainapetitionunderArticle32and
to give remedy to the applicant. But an adequate alternative remedy must be resorted first.
Conduct of Petitioner
Where the conduct of a petitioner is not equitable, the Court may not grant any relief. In
MangilalSharmav.AppellateTribunalofState,thepetitionerhadobtainedapermitforroad
transport from the RTA (Regional Transport Authority) fraudulently. His permitwascancelled
after discovering the facts. He filed a writ petition, but the Court refused to consider his
application for granting any relief because of his misconduct.
Suppression of Material Facts
Themaxim"hewhoseeksequitymustcomewithcleanhands"appliestopetitionsunderArticle
226. The Court will not grant any remedy if the material facts of the petition are twisted,
suppressed, distorted, or concealed.
Disputed Facts
The High Court does not act as a Court of appeal disposing of writs and where any kind of
evidencesarerequiredtodecidedisputedfacts,theCourtwillnotdecidethepetitionbecausethe
nature of the proceedings under Article 226 is summary.
Futile Writ
Where granting of a writ would be of no use, the Court will not issue writ. Directing the
authoritiesforissuanceoflicencetopetitionerforaperiodwhichhadalreadyexpiredwillserve
no purpose, therefore writ will not be issued.
Conclusion
As we have observed, the power of the High Court to issue writs for the enforcement of
fundamentalrightsaswellasofordinarylegalrightsisverywideandextensive,buttheIndian
HighCourtsexercisedthispowerwithgreatcautionandsensibilitybyapplyingcertainjudicial
principles. From the above-stated judicial response and the limitations for issuingwritsbythe
HighCourt,itcanbeconcludedthataremedyunderArticle226isnotafundamentalrightbuta
discretionaryremedywhichtheHighCourtmayrefuseifthepetitionerhasotherremedywhich
hefailedtoseek,butanattemptshouldbemadetoconstruethelawinsuchamannerthathelps
to promote justice.
Civil Servants in 21st Century India
1. Introduction
Helloviewers,IamDr.JasperVikas.And,today,thetopicofmylectureisCivilServantsin21st
Century India.InIndia,therearethreetypesofhigherCivilServices,whicharealsoknownas
Group A services or Class I services, are present. First, All India Services, which comprises
thosememberswhichserveboththeUnionGovernmentandtheStateGovernments,second,are
Central Services, whose members only serve the Union Government and thirdly, State Civil
Services, whose members only serve the State Governments. All India Services further are
broadly classified into the Indian Administrative Services (IAS), Indian Police Services(IPS),
andIndiaForestServices(IFS).IASandIFSareconsideredasthebestCentralServices,based
on the preferences picked bythecandidates.EventhegeneralpublicperceivesIASandIFSas
the most prestigious Central Services. Therecruitmenttotheseservicesisprimarilybywayof
verystiffcompetition,andthattoo,ataveryyoungage,whichisverytypicalof'mandarin-style’
services. Though, there are two other comparatively easy ways to reach up to these services,
which are promotion and selection. The examination for these services is conducted by a
politically neutral body, the Union Public Service Commission (UPSC). The major
characteristicsofCivilServicesinIndiaarethat,firstly,thereisapresenceofdualgovernment,
bothattheCentreandtheState;andsecondly,thecriteriaofselectionaremerit-based.Thirdly,
the selection is done by an independent selectionboard,andfourthly,thereisprotectionunder
Article311oftheConstitutionofIndia,whichisavailabletothemagainstthearbitraryremoval
from their post.Fromtimetotime,changesarealsomadeintothepatternofexaminationsand
also in the composition, such as an increase in the number of reserved posts.
2. Effectiveness and Efficiency of Civil Servants in a Democratic Set-up of India
The effectiveness and efficiency of Civil Servants is always under scrutiny as they are
torchbearersofgovernmentpolicies.Theynotonlytranslategovernmentpoliciesintolegislation
butalsohelpinthesuccessfulexecutionoftheselaws.ItistheCivilServantsonly,whoarethe
buildersofmodernIndia,astheyplanandexecutethelawswithintheConstitutionalboundaries.
If we access the pastrecordsoftheworkingoftheCivilServants,wecansafelyconcludethat
theyhadperformedbetterinpreservingtheconstitutionalmachineryofthenation,thoughfailed
in various other contexts such as, not fair in performing impartially, which is a hugecauseof
concern for any developing country. But, beyond this, this is a new trend in town: the
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effectiveness of Civil Servants in the market economy. As far as the running of the factories
(publicsectorundertakings)isconcerned,thepromotersofdisinvestmentorprivatisationareof
the view that this is not the role of Civil Servants. Rather, theopportunitytorunthefactories
should be handed over to the private sector completely, and the Civil Servants must only be
confinedtogovernance.ItisnecessarytoknowthatthesuccessfulPSUshavebeensmoothlyrun
by them for years. Nonetheless,itisnotwrongtosaythatinthepastthreedecades,especially
after the advent of new economic policy in the new Indian political-socio-order, or in other
words,inthenewmarketeconomy,theeffectivenessandefficiencyofCivilServantshavebeen
tested on much stricter terms and the Civil Servants have been able to reach the benchmark.
2.1 Civil Servants: Preserving the Constitutional Order
Civil Servants are excellent in preserving the constitutional order ofthenation.Indiahasseen
turbulent times on various fronts, such as many instances of insurgency, civil disorder, and
political instability, which have erupted in India. India has also witnessedvariousinstancesof
theimpositionofthePresident’sruleintheStatesandalsotheconductoffreeandfairelections,
whichisthestrengthofdemocracy.Inallsuchdifficultscenarios,CivilServantshadperformed
their jobwellandmaintainedboththeunityandintegrityofIndia.Inadiversifiedcountrylike
India, peoplewon’trealisethatitistheAll-IndiaServicessuchasIASandIPSwhichhasheld
India together as a single political and economic unit.
3. Causes of Poor Performance
The performanceofCivilServantsinthepastdecadeshasbeenseriouslyaffected,whichhasa
direct impact on the governance of the country. Various scams have surfaced in the past two
decades, which cannot be a possibility without the involvement of Civil Servants. It has been
noticed that Civil Servants havebeenhandinglovewithvarioussuchpeople,suchaspolitical
leaders,theirfamilymembers,whocausescamsand,later,CivilServantswhosuccumbinitially
totheirpressure,havetofacetheCourtproceedingslater.Itisthereforeessentialtolookintothe
causes which are affecting the working of the Civil Servants.
3.1 Political Interference
PoliticalinterferenceindecisionmakingoftheCivilServants,isconsideredasoneofthemost
importantimpediments,whichaffectstheirperformance.Politicalmanoeuvrebytheministersin
theworkingoftheCivilServantsisanormalaffair,wheretheyputpressureontheCivilServant
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for passing, approving or confirming some or the other projects, and in this way, government
projects sometimes go into the wrong hands, which either don’t carry enough experience to
execute the work or lack the necessary qualifications to execute such agreements, or they are
incompetent. Therefore, the projects, in this way, go to the persons who are incompetent in
executingthesame,whichaffectsthegovernanceofthenation.Thecoalblockallocationisthe
classic example, where the Civil Servants have bent the rules to give clear favour to some
particular persons, though on the demand of thepoliticalleadersonly.Now,therefore,whenit
comes to judicial scrutiny, they were the first who faced the brunt of the ruleofthelaw.And
then, their plea that it was thepoliticalleadersonlyunderwhosepressuretheyhadsignedand
executedthecoalblockallocation,wasnotheardandconsideredbyanyCourt.Thescamslike,
‘Coal block allocation’ affect the workingoftheCivilServantsandalsoraisecertainpertinent
questionsontheintegrityoftheirservices.Itisthereforenecessarytohave‘politicalneutrality’
in their decisions since only then can they effectively discharge their duties and obligations.
3.2 Inability to Function with Integrity
It is essential to maintain the integrity of Civil Servants, towards which nothing substantial
seems to have been done in the past many years, because of which, it can be noticed that
integrity is affecting the functioning of the Civil Services the most. In the past, various
committeeswereappointedtoproposecivilservicereforms,suchastheHottaCommittee,which
in2004submitteditsreportonthisissue.Later,thesecondAdministrativeReformsCommission
(ARC) in its 10th and 15th Reports (2008) also proposed various reforms. The Santhanam
Committee also submitted its report in this regard. The Supreme CourtinT.S.R.Subramanian
and Ors. v. UnionofIndia(UOI)andOrs.,whileadjudicatingonthepleasoftheformerCivil
Servants, who were attracting the attention of the Court towards the necessitytohavevarious
reforms in the Civil Services for the preservation of its integrity and fearlessness and also its
independence both at the Centre and State levels, directed to constitute an independent Civil
ServiceBoardattheCentreandStatelevelwithhigh-rankingservingofficerswhoarespecialists
in their respective fields. The Apex Court in T.S.R. Subramanian (2013) case, discussed the
importanceofthe"recordingofinstructionsanddirectionsbypublicservants"andobservedthat
it is absolutely necessary to record the instructions and directions in writing, as the same is
necessary to fix the responsibility and accountability in the appropriate functioning of Civil
Servants and the same isnecessarytoupholdinstitutionalintegrity.TheCourthaddirectedthe
State Governments to issue directions such as Rule 3(3) of the All-India Services (Conduct)
3
Rules,1968,whichdiscusstheHottaCommitteeReportof2004andtheSanthanamCommittee
Reports.TheCourtfurtherdiscussedthatmuchofthedeclineinthestandardsofCivilServants
waseitherduetoexcessivepoliticalinfluenceorbythepersonswhoareatthehelmofaffairsin
thegovernmentorareinauthorityandpower.Rule3(3)(iii)oftheAll-IndiaServiceRulesinthis
regardworkslikeaboon,asitrequiresthatalltheordersissuedfromthesuperiorofficerstothe
subordinates,‘shallordinarilybeinwriting’.Oraldirectionsinthisregardshouldbeusedasan
exception and may be made inveryexceptionalcircumstances,subjecttolaterconfirmationin
writingbythesuperiorofficer.Similarly,theCivilServantwhohadreceivedtheinformationin
oral form, should be required to seek the confirmation of such directions in writing from the
superiorofficeronassoonaspossiblebasis.TheCourtfurtherobservedthattheCivilServants
are not supposed to work onverbaldirectionsatall,asintheabsenceofwrittendirections,no
record would be possibletobemaintained.Theoralinstructionsandordersorsuggestionsand
proposalsmustbeprotectedagainstthearbitrarypoliticalpressure,manytimesexertedeitherby
the superior officers or by the political executive. The Court further observed that iftheCivil
Servant is taking the risk of acting onoraldirectionsonhisown,thenlaterhecannottakethe
standthatheactedontheoraldirectionofthesuperior,becausetherecordingofinstructionsand
directions issued by the superiors helps in fixing the responsibility, which ensures the
accountability,whichhelpsinthetransparentfunctioningoftheCivilServicesanditalsohelps
in upholding the institutional integrity of the Civil Services.
3.3 Neutrality and Fair Implementation of the Rule of Law
Wheneveritcomestoneutralityandfairimplementationoftheruleoflaw,moreoftenitisfound
thattheCivilServantsarenotuptothemark.Oneofthemajorrequisites,whichalsoaffectsthe
working of the Civil Servant,istobe"politicallyneutral"whilemakingdecisions.And,thisis
because of the presence of the ‘carrot’ of special awards, which many times go beyond the
regular tenure of service, largely to central services. The most popular one istheextensionof
services, or in other words, post-retirement employment.
3.4DualControl,ReluctantUseofArticle311(2)oftheConstitutionofIndiaandArbitrary
Transfers
It is necessary to know that the dual control over the All-India Services has not served the
desired purpose of efficiency and effectiveness,andtoaddtothisistheaftereffectofcoalition
era politics, which has paralysed the effectiveness and efficiency of Civil Servants. The other
4
cause of poor performance is not taking full recourse to Article 311(2) of the Constitution of
India,whichalsomeansnotusingfulllegalprotectionfortheirusebecauseofthefinancialand
personal costs attached to it. In fact, arbitrary transfers affect them the most. Short and
sometimesveryshorttenuresofCivilServantsondifferentpostsduetoarbitrarytransfersaffect
theirmentality.And,evenotherwise,shorttenuresaffectthelearningcapacityandalsoaffectthe
gaining of enough experience. Article 311 (2) seems to safeguard the interests of the Civil
Servants, but, due to a lack of appropriate proceduralbackup,itdevelopsvariousloopholesin
between,becauseofwhichtheCivilServants,whotakethepathofapproachingtheCourt,soon
realisethatthewholesystemisworkingagainstthem.And,anumberoftimes,theyhavefaced
moreharassmentthanjusticefromthehandsofthejudiciary.Ihopetheabovediscussionshave
provided you with an overview of Article 311 of the Constitution of India.
3.5 Executing the Will of the Government
TheexecutionofthewillofthegovernmentcanbeapossibilityonlywhentheCivilServantis
working freely and fairly under the rule of law. But we have seen in practice that the Civil
Servants,insteadofworkingundertheruleoflaw,areactuallyworkingonthedirectionsofthe
political leaders, which has directly affected the successful execution of government policies.
Insteadoffollowingthestandardproceduresinawardingtheprocurementcontracts,thedictates
of the political leaders are being followed. Though there are various successful stories also
present and to be shared, such as the successful implementation of mid-day meal schemes in
schools, which has benefitted lakhs of students. Similarly, with the success of the Mahatma
Gandhi National Rural Employment Guarantee Act (NREGA), 2005, which has provided
guaranteed employment, especially to the rural youth, there are various refugee programmes
managedbytheGovernmentofIndia,allwiththehelpoftheCivilServants.Recently,Indiahad
successfully managed the largest ever programme, which is inclusive of every citizen of the
nation; that is, theregistrationofeverycitizenintotheAadharregistry.Infact,demonetization
ofthecurrencyin2016canalsobeconsideredasoneofthelargestpolicyinitiativestakenbythe
government. These programmes had a success story only because of the presenceoftheCivil
Servants,whodotheirlevelbestintheimplementationofthewillofthegovernment.Theworld
in2020wasaffectedbyoneofthemostcontagiousvirusesofourtime,Corona(Covid-19),and
Indiawasalsonotawayfromitsinfection.Indiahadsuccessfullycurbedthespreadofthevirus
in the community by taking timely steps and effective implementation of the tailormade
strategies against the COVID-19 pandemic.
5
3.6 Promoting Economic Development
The success of Civil Services can easily beassessedbylookingatthefactthatastohowthey
have promoted the economic development of the nation by providing efficient and effective
public services to the public at large atareducedtransactioncost.AccordingtoM.H.Moore,
Civil Servants are supposed to create public value, by executing the will of the elected
governments and also by promoting the economic development of the nation by reducing
transactioncosts.Buttheproblemis,daytodaypoliticalinterferenceinthegovernance,which
affects the quality of the governance.
4. Suggestions: Steps Taken to Improve the Effectiveness and Efficiency of the Civil
Servants
There are various necessary steps to be taken for the improvement of the effectiveness and
efficiencyof Civil Servants.
4.1 Increase in Time in the Postings
It is very necessary for theCivilServantstospendagoodamountoftimeintheirpostings,so
thattheygainenoughexperiencetounderstandtheissuesandtohaveanecktoarrestandsettle
them down. There should be some fixation of tenure timings, which is very essential. Infact,
arbitrarytransfersdirectlyaffecttheworkingofCivilServants.Therefore,thereisastrongneed
to create a mechanism to address these issues.
4.2. Change in the System of AlmostAutomaticSenioritytoSomeBetterIncentive-based
Promotion
To be a Civil Servant, one hastopassthemerit-basedexamination;but,afterclearingthesaid
examination,thereisanear-automaticsenioritysystem,wheremerithaslessroletoplay,which
directly affects the working behaviour of Civil Servants. Automatic seniority poses major
problems.Itaffectstheworkingcultureintwoways.Firstly,whentheCivilServantsareaware
of the fact that whatever best they will perform in dischargeoftheirduties,theywillonlyget
time-bound promotions to senior positions, this makes their working lethargic, whereas,
secondly, when they are aware of the automatic promotions to senior positions, theywillstop
performingeffectivelyandefficiently,whichagainwouldhaveadverseeffectsontheirworking
culture.
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4.3 Developing New Type of Behaviour
One cannotworkonthebasisofanychange,unlesschangeswouldhappeninthepersonswho
are supposed to bring the change. It is necessary to bring various behavioural changes in the
Civil Servants, such as,
(i) Development of Professional Competence
(ii) Inculcation of Political Neutrality
(iii) Developing Honest Practices
(iv) Enforcement of Law
(v) Promoting Innovation
4.4 Awarding Outstanding Civil Servants
It is always necessary to promote talent and, therefore, utmostnecessarytoawardoutstanding
CivilServants.Thiswillpromoteasenseofworkingandthekeennesstoworkefficiently.Itwill
also help in building the public image of Civil Servants.
4.5 Review of Disciplinary Procedures and Adoption of Principles of New Public
Management
There is a very strong need toapproach"disciplinaryproceedings"differently,asbecausenow
more often, thescopeofthedisciplinaryproceedingsisadjudicatedbythejudiciary.Thereisa
requirementtocheckthecasesreferredtocriminaltrialsmorevigilantly.Ontheotherhand,itis
the need of the hour to adopt new public management principles such as:
(i) the introduction of competition amongst public services;
(ii) the adoption of private managerial skills; and
(iii) performance-based promotion.
Relevant Case Study
BALCO Employees' Case
In this case, the challenge was made to the decision of the government where they had
disinvested in the public corporation and transferred 51% shares of M/s Bharat Aluminium
7
Company Limited (hereinafter referred to as 'BALCO'). It is necessary to know that BALCO
came into existence only in 1965 and, thereafter, worked successfully with a paid-up share
capital of Rs. 488.85 crores. The said amount was completely controlled and owned by the
Government of India. The whole affairs of the company were also in the able handsofIndia.
Interestingly, the company was engaged in aluminium manufacturing and had plants in
Chhattisgarh and West Bengal. The company has thereafter integrated the aluminium
manufacturingplantforboththemanufacturingandsaleofthealuminiummetal.Theyarealso
manufacturing wire rods and other similar types of semi-fabricated products. Later,theIndian
Government opted for disinvestment as a policy since the 1990s, and therefore, in the same
processitself,itoptedtogoforthedisinvestmentofthiscompany.Duringtheargumentsinthe
Court, the argument put forward by the government was clear-cut, and that is that, firstly,
"despite every effort, the rate of returns of governmental enterprises had been woefully low,
excluding the sectors in which the government has a monopoly and for which they can,
therefore,chargeanyprice.Therateofreturnoncentralenterprisescametominus4%,whilethe
costatwhichthegovernmentborrowsmoneyisatarateof10to11%.IntheStatesoutof946
Statelevelenterprises,about241werenotworkingatall;about551weremakinglossesand100
were reported not to be submitting their accounts at all. Secondly, neither the Centre nor the
Stateshavetheresourcestosustainenterprisesthatarenotabletostandontheirowninthenew
environment of intense competition. Thirdly, despite repeated efforts, it was not possible to
changetheworkcultureofgovernmentalenterprises.Asaresult,eventhestrongestamongthem
have been sinkingintoincreasingdifficultiesastheenvironmentismoreandmorecompetitive
and technological change has become faster."
TheCourtthereafterinthejudgementclearlysaidthat,firstly,"Itisthegovernment’seconomic
decisionwhichrequirescomplexeconomicfactors.AndCourtshaveconsistentlyrefrainedfrom
interfering with economic decisions unless it is violative of constitutional or legal limits on
powerorsoabhorrenttoreason,thattheCourtswoulddeclinetointerfere.Secondly,inmatters
relating to economic issues, the government has everyrightto‘trialanderror’aslongasboth
trial and error are bona fide and within the limits of authority."
Conclusion
NoonecanchallengetheroleplayedbytheCivilServantsinmaintaininglawandorderofthe
nationandnoonecanunderestimatethesuccessfulconductoftheelections,whichareessential
to carry the democracy in the nation. But, asisseen,therearecertainissueswhichneedtobe
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addressedonamosturgentbasis,orelse,thedayisnotfarwhenIndiawouldfaceamajorcrisis,
i.e., a crisis of governance. Thank you very much.
9
Doctrine of Pleasure and the Constitution of India
1. Introduction
Article310oftheConstitutionofIndiaprovidesforthe"DoctrineofPleasure"inrespecttothe
tenure of the office of the persons who are serving either the Union or the State subject to,
"except as expressly provided by this ConstitutionofIndia."Therearevariouspostsunderthe
Constitution of India which are not subject to the above doctrine of pleasure, such as the
appointment of the Comptroller and Auditor General of India (CAG) under Article 148 (2),
ChiefElectionCommissioner(CEC)underArticle324,JudgesoftheHighCourtsunderArticle
218 and the Constitution of Supreme Court under Article 124, and the Chairman and the
Members of the Public Service Commission under Article 317. There is a procedure to be
followedforthepurposesoftheappointmentofpersonsintogovernmentjobs.Infact,theUnion
Public Service Commission (UPSC) and Public Service Commissions of the States (PSCs)
recruit persons on the Centre and State jobs on the basis of the examinations, sometimes in
phases. Generally, thewholeprocessofrecruitmentofpersonsintotheUnionandStateoffices
comprisesvarioussteps,suchas,rightfromthepreliminaryexamination,writtenexaminations,
up to an interview. And, depending upon the nature of the vacancy, the recruitment process
variesaccordingly.Butwhateverthecase,thewholeprocessofappointmentofpersonstopublic
officesisnotifiedbythegovernment.But,alongwiththejoiningofthepublicposts,thepersons
are also subjected to laws related to their removal and therefore, it is crucial toknowthelaw
related to their removal. Appointment and removal of the government servant is subject to
appropriate rules and regulations such as service rules, etc. There are certain rules and
regulationswhichhavetobenecessarilyfollowedbythegovernmentaldepartmentbeforetaking
harsh steps such as termination, removal, etc. of the persons from the posts, by giving
appropriate written notice, where the reasons for the same have to be mentioned clearly.
Buttherearecertainappointmentswhicharepoliticalinnatureandwhoseappointmentismade
on the recommendation of the appropriate authorities, such as the Governor or the President.
And, these appointments are made as per the pleasure of these political authorities; therefore,
these appointments are termed "pleasure appointments". In India, this doctrine is not coupled
withabsoluteandunrestrictedapplication.Buttherearevariouspostswhichrequirethepleasure
of the government for appointment, and therefore, thepersonsappointedatthepleasureofthe
government can be removed by the same pleasure. For instance, in the case of Dhaneshwari
1
Thakurv.StateofH.P,theCourtheldthattheappointmentofthepetitionerastheChairpersonof
theCommissionofWomenbytheGovernorisaclassiccaseoftheapplicationofthedoctrineof
pleasure, and therefore, her termination by the same authority cannot be challenged, as her
postingwasatthepleasureoftheGovernoronly.Thissituationraisesvariousquestions,suchas
whetherthedoctrineofpleasureisarbitraryinnature.Andwhatistheextentofthedoctrineof
pleasure?
2. Meaning of the Doctrine of Pleasure and Its Extent
It is necessary to know the extent of the applicationofthedoctrineofpleasure,orelseitmay
leadtoarbitrariness,asthelineisverythinbetweenthearbitrarydiscretionofappointmentand
removal.Therearetwoimportantconsequencesoftheapplicationofthedoctrineofpleasurein
the context of Article 310 of the Constitution ofIndia.Firstly,thegovernmenthastherightto
determine or regulate the contractual obligations along with the tenure of its servants at its
pleasure,subjecttothemandatoryprovisionsprovidedhereininArticle311oftheConstitution
ofIndia.Secondly,thegovernmentdoesnotcarryanypowertorestrictitselfortoputacheckon
itself in regard toterminatingtheservicesofitsemployeesatitspleasure,subjecttotheextent
checked by Clause (2) of Article 310 of the Constitution of India. It is therefore necessary to
know that the power enshrined under Article 310 is only to be exercisedbytheconstitutional
machinery prescribed therein and solely in the fashion prescribed. But, in some earlier cases,
such as Jayantilal Amratlal Shodhan v. F.N. Rana, it has been already adjudicated that while
exercisingsuchpower,onehastobearinmindthatwhensuchpowerisconstitutionalandnota
mereexecutiveaction,asinthosecases,suchpowerisnotsupposedtobedelegatedtoanyone.
Butthereliecertainlacunaeinsuchconclusions,andtherefore,theSupremeCourtinShamsher
Singh v. State of Punjab reformulated the propositions with regard to the nature of power
prescribed under Article 310 (1) of the Constitution of India. Firstly, it was held that the
distinctionbetweenthepersonalandexecutivefunctionsofthePresidentdoesnotspecifythathe
isnottheconstitutionalheadoftheStateortheformalhead.Secondly,boththePresidentandthe
Governor are the formal heads, whoworkwiththeaidandadviceoftheCouncilofMinisters.
Thirdly,boththePresidentandtheGovernor,whileexercisingtheirpowersunderArticle310(1)
oftheConstitution,donotactpersonally,butratheractontheaidandadviceoftheCouncilof
Ministersonly,whichalsomeansthatwhilemakinganyoftheappointmentsordismissalsorthe
removal of persons from government posts, including judicial services, theGovernordoesnot
act in his personal capacity, but on the aid and advice of the Council of Ministers as held in
2
Union of India v. Tulsiram Patel. The Indian doctrine of pleasure is different fromtheBritish
doctrine, where civil servants are considered only as servants of the Crown,andtheCrownis
considered as theexecutiveheadoftheState,andtherefore,civilservantsserveatthepleasure
of the Crown only.
2.1 Political Appointments and Judicial Review
There are various politicalappointmentsthataremadebytheconstitutionalfunctionaries,such
asappointmentsbytheGovernororbythePresident.TheSupremeCourt,therefore,inthecase
of B.P. Singhal v. Union of India (UOI) and Ors., clearly demarcated the guidelines to be
followed while applying the doctrine of pleasure. It was stated therein that-
1. As per Article 156 (1) of the ConstitutionofIndia,theGovernorconstitutionallyholds
hisorherofficeduringthepleasureofthePresident.And,therefore,theGovernorcanbe
removedwithoutgivinganyopportunityorshowcauseanytimebythePresidentwithout
assigning any cause or reason, from his or her office.
2. The power under Article 156 (1) is not supposed to be exercised in an arbitrary or
unreasonablemanner,despitethefactthattherewasabsolutelynoreasontobeassigned
for the purposes of removal or discontinuance from the job. This power has to be
exercisedinexceptionalandrarecircumstancesaltogetherandbasedonverycompelling
reasons. Compelling reasons shouldbeofaverywideamplitudewhichwillcompletely
depend upon the facts and circumstances of each case.
3. The reasons cited, such astheGovernornotbeinginsyncwiththeUnionGovernment,
cannotbetermedasoneofthereasonsforhisremoval.Hecanhavedifferentviews.He
is also not supposed to be removed fromtheconstitutionalpostjustbecausetheUnion
Government has lost faith and confidence in him which also makes a case that just
because there is a change in thegovernmentattheCentre,itdoesnotmeanthatnowa
Governor should be removed, nor can he be removed on the ground that the Union
Government has lost confidence in him.
4. There is a very limited judicial review power given to the Supreme Court of India in
caseswhere,withoutassigninganyreasons,theGovernorisremovedfromhispost.And,
if, prima facie, the removal was proved as either arbitrary, mala-fide, whimsical or
capricious,theninsuchcases,theCourtcanasktheUnionGovernmenttodiscloseallthe
relevant material before the Court, over which the President has taken the decision to
3
withdraw pleasure. It is necessary to know that the Court will generally not interfere
simply on the ground that there was a possibility to have a different opinion possible.
TheSupremeCourtinthecaseofStateofU.P.andOrs.vs.U.P.StateLawOfficersAssociation
andOrs.,categoricallyheldthatwhenapersonisappointedwithoutanydueprocess,thenlater,
he cannot seek orallegethatheorsheshouldnecessarilybeheardorsomenoticebeissuedto
them, before their removal from the said post.
3. The Doctrine of Pleasure: Limitations
Essentially, unlike British constitutional practices, theapplicationofthis"pleasuredoctrine"in
the context of civil servants is not unfettered and, therefore, it is subject to various types of
limitations. Article 310 of the Constitution of India provides the provision for the removal of
civil servants in a most arbitrary manner. However, this power is subjecttoArticle311ofthe
Constitution of India, which provides limits to the application of unfettered power of the
governmentunderArticle310toremovecivilservants.Buttherearestillcertainareaswherethe
applicationofthedoctrineofpleasureisnecessarybecauseofitssignificance,suchassecurityof
the state.
3.1 Constitutional Safeguards to Civil Servants and Doctrine of Pleasure
Article 311 of the ConstitutionofIndiaprovidessafeguardsagainstthisdoctrineofremovalof
governmentservantsasperArticle310oftheConstitutionwithoutnoticeandwithouttellingthe
reason orcausetodoso.TheArticleisuniqueinitsapplication,asitplacesrestrictionsonthe
"pleasure doctrine". Firstly, it states that the persons employed in the posts, primarily civil,
prescribed under Article 310 of the Constitution, both under the Union and the State, are not
supposedtobefiredfromtheirjobs,eitherbywayofremovalorbydismissal,especiallybythe
subordinate authorities, which were responsible for their appointment. Secondly, an enquiryis
mandatoryasperArticle311(2)oftheConstitution,forthepurposesofdismissalandremoval
fromthepostsor,forthatmatter,reductionintheranks.Thesearetheconstitutionalsafeguards
forcivilservants.Thesesafeguardsareonlyavailableagainstthecivilpostsandnotagainstthe
persons who are employed in the defence forces or any of the postsrelatedtodefence,which
meansthattheprotectionofArticle311wouldnotbeavailabletothemilitarypersonnelwhoare
governed under the Army Act, 1950. The protection of Article 311isalsonotavailabletothe
probationers, as held in the case of Kendriya Vidyalaya Sangathan v. Ram Ratan Yadav.
4
Similarly,itwasalsoheldinthecaseofSukhbansSinghv.StateofPunjabthatthesuspensionof
the employee is neither dismissal nor removal and, therefore, he would not beeligibleforthe
protection under Article 311. The Supreme Court in Satish Chandra Anand v.UnionofIndia,
heldthatthepersonswhoarecompulsorilyretiredfromthepostaspertheservicerulesarenot
left with any right or entitlement and, therefore, cannot take the benefits ofArticle311ofthe
Constitution, because they are retired from the job,whichisacompulsoryretirement,andthis
retirement is not by way of any type of punishment or otherwise.
3.2 Doctrine of Pleasure and Army Act: Are there any limits on the President?
There are various limitations to the application of the doctrine of pleasure. In the case of the
UnionofIndia(UOI)andOrs.v.S.P.SharmaandOrs.,theSupremeCourthadtodecidecertain
fundamentalquestionssuchas,firstly,regardingArticle310anditscontextualapplicationinthe
Indiansetup;secondly,whetherthisdoctrineofpleasurecanbeappliedinconsonancewiththe
Army Act andespeciallyinthecontextofitsSection18,specifically,whenthereisabsenceof
substantive evidence or non-submission of the relevant documentary records, on the basis of
which,theservicesoftheofficerhavebeenterminated?Inotherwords,inthelightoftheabove
facts, themootquestionbeforetheCourtwas,cantheterminationorderbetermedasillegalor
can it also be termed as valid, especially when it was issued by the appropriate authority?
Similarly,therewerecertainotherquestionswhichalsoaffectedtheoutcomeofthecase,suchas
to whether such an ordercanbetermedasarbitrary,unreasonable,capricious,andtherefore,is
againsttheletterandspiritoftheConstitutionofIndia,especiallyArticles14and16,whichdeal
with the doctrine of equality, and also against Articles 19 and 21, which deal with the
fundamental right of liberty. Another pertinent query is, can suchaterminationorderbetaken
intoaccount,whichwasissuedbytheconcernedandappropriateauthoritybutwhichwasbased
completely on the irrelevant documents and highly improperevidence,whichwerebeingused
substantially for the purposes of the termination order? It is necessary to know that the very
objective of Article 309 was discussed by the Supreme Court in this case along with other
Articles such as Article 310 and Article 311,soastobetterunderstandtheapplication,extent,
andlimitationofthedoctrineofpleasure.Itisnecessarytoknowthat,toregulatetherecruitment
process, Article 309 is present in theConstitution,whichprimafaciepermitsthelegislatorsto
regulate the recruitment process for the public services. And,thelegislatorsforregulatingthis
recruitment,havefirstdefinedindetail,theserviceconditionsofthepersonsbywayofvarious
regulations,tostateastowhowouldbeappointedinthe‘publicservices’andalsotothe‘posts’
5
which deal with the working of the State and the Union Governments. One canreadallthese
rulesandregulationsasperthemandateofArticle310oftheConstitutionandalsoArticle311,
whichprovidesalimittothepowerunderArticle310.ThePresidentisthecompetentpersonas
per the proviso to Article 309, which clearly stipulates that he will make rules to control and
regulatetherecruitmentprocess,andheisalsoempoweredtomakeothernecessarystipulations
tobefollowed.Article310thusexplainsthedoctrineofpleasureinthecontextofappointments
made by the President and the Governor. Whereas Article 311 imposes restrictions upon the
exerciseofpower(doctrineofpleasureasprescribedinArticle310),tobeusedbythePresident
and also by the Governors of the different States, as per Article 311 (2), there cannot be any
reductionorremovalfromtheservices,andtherearealsonodismissals,especiallyintheranks
of persons who belong to the Union or State Civil Services, unless they are subject to a
reasonable opportunity of hearing (right to defend) against the charges levelled against them.
However,thereisanexception,thatis,theproviso(c)toArticle311(2),whichmakesabsolutely
straight, that this clause won’t be applicable where the President or theGovernoraresatisfied
about the fact that the termination of the Union or State services isintheinterestoftheState
security and, therefore, it is not at all necessary to expedite the holding of such an enquiry.
As per S. L. Agarwal v. Hindustan Steel Ltd., an employee who is on the regular payrollofa
company would not be termed as the holder of a civil post as per Article 310.
4. Exceptions to the Application of the Doctrine of Pleasure
Thedoctrineofpleasurehasvariousexceptionsalso.Theclassicalexampleistheappointmentof
the Chief Election Commissioner (‘CEC’). Though CEC isappointedbythePresident,yet,he
cannotberemovedatthepleasureofthePresident.Freeandfairelectionsarethebackboneofa
successfuldemocracy,andtherefore,theremovaloftheCECcannotbesubjecttothepleasureof
anybody, including the President, at whose pleasure he has been appointed. Similarly, is the
appointmentofotherconstitutionalmachinerysuchas,CAG,JudgesoftheSupremeCourtand
HighCourts,etc.InOmNarainAgarwalandOrs.v.NagarPalika,ShahjahanpurandOrs.,the
Apex categorically held that this doctrine from nowhere is against public policy, and nor is
against the principles of natural justice, andnorisagainsttheestablisheddemocraticnormsof
society.
5. Case Study:Union of India (UOI) and Ors. v. S.P. Sharma and Ors. (2014)
6
Thefactsofthiscaseareverycrucial.Asinthiscase,essentially,theappellantswerethepersons
who were charged with the offence of espionage, whichledtotheirfinalterminationfromthe
services. It wasfoundoutthattheyhadexecutedespionageofthegovernmentrecordsandhad
shared the confidentialinformation.Thequestionbeforethecourtwastheirtermination,which
was under the strict scrutiny of Article 310 and 311 of the Constitution of India, read with
section 18 of the Army Act. In addition, one has to see the application of the Constitutionof
India's provisions to the Army Act. The detailed investigation inthisregardwastakencareof
andwaspartoftheappeal."Itisfurtherrevealedthatadetailedinvestigationwasconductedand
all evidences recordedwereexaminedbytheIntelligenceDepartmentandfinallytheAuthority
cametothefindingthatretentionoftheseofficerswasnotexpedientintheinterestandsecurity
of the State." And, therefore, the Court agrees with the same and carries the same throughout.
The Court further held, "From bare perusal of the provisions contained in Article 311 of the
Constitution,itismanifestlyclearthatclauses(i)and(ii)ofArticle311imposerestrictionsupon
theexerciseofpowerbythePresidentortheGovernoroftheStateofhispleasureunderArticle
310(1)oftheConstitution.Article311makesitclearthatanypersonwhoisamemberofcivil
services of the Union or the State or holds civil posts under the Union or aStateshallnotbe
removed or dismissed from service by an authority subordinate to that by which he was
appointed. Further, clause (ii) of Article 311 mandates that such removal or dismissal or
reductioninrankofamemberofthecivilservicesoftheUnionortheStateshallbeonlyafter
giving a reasonable opportunity of hearing in respect of the charges levelled against him.
However,theprovisionofArticle311(2)makesitclearthatthisclauseshallnotapply,interalia,
where the President or the Governor, as the case may be,issatisfiedthatintheinterestofthe
security of the state it is not expedient to hold such an enquiry. "
6. Conclusion
Therearevariousissuessuchas,securityofState,wheretheapplicationofdoctrineofpleasure
even today,seemstoberelevant,butotherwise,wherever,theruleoflawprevails,therehasto
benothinglikean‘unfettereddiscretion’oranytypeof‘unaccountableaction’.Moreover,when
it comes to reasons, the degree of reason would vary based on the facts andcircumstancesof
eachcase,and,therefore,thedegreeofscrutinyduringthejudicialreviewhastovarybasedon
the facts of each case. But, as per B.P. Singhal v. UnionofIndia(UOI)andOrs.,onethingis
clear,andthatis"thepresenceofareason".Itmeansthat,whereverinaconstitutionalset-up,the
person who holds the office at the pleasure of the authorities can beremovedatanytimeand
7
without any cause or notice. It is necessary to know that the "doctrine of pleasure" is a
constitutional necessity, because many a time, we need to dismiss some of the government
servants summarily because theirpresenceintheofficewouldbedetrimentaltothesecurityof
the nation, and any difficulty in dismissing them would lead to their continuity in the office,
whichcanprovetobedangerousforthestate.And,anytimelapseintheissuanceofnoticeand
givingrighttohearoranytimelapseinsatisfyingtheCourtaboutthedismissalwouldcertainly
obstruct andhindertheday-to-dayaffairsoftheservicesdealswiththepublic.Thankyouvery
much.
8
Privatisation of Public Corporations
1. Introduction
Sinceindependence,oneofthemajoreconomicandsocialgoalsofIndiawastheestablishment
of Public Corporations, so as to make a robust Indian economy. Though many public
corporations,suchasrailways,werealreadypresentevenduringtheBritishcolonialtimes,there
were various sectors in which many corporations saw the light of the day only after
independence, such as heavy industries, oil industries, telecommunications etc. Indian Oil
Corporation Ltd. (IOC), Bharat Petroleum Corporation Ltd.(BPCL),andHindustanPetroleum
CorporationLtd.(HPCL)areafewamongstthepubliccorporationswhichhavetastedsuccessin
the past several decades. Public corporations were once known for providing robust
infrastructuretothenationandcontributingtotheGrossDomesticProduct(GDP)ofthenation.
But as was expected from the public corporations that it would provide an edge in the
internationalmarketprovedonlytobeamyth,aswiththepassageoftime,itwasfoundthatthe
public corporations are deteriorating substantially in their out-product (quality wise) and are
failing to give cutting edge competition in the international market. The depletion of profit
marginfurtheraddedtothewoessinceitwasreducedtotheedges.AsperVivanSharan,India
had an economy of Rs. 266.5 billion in 1991 at the time of the introduction of the New
EconomicPolicy(NEP),andin1991itself,underthecompulsiveandpressivecircumstancesof
the Balance of Payment (BoP) crisis, India had opted for the New Economic Policy (NEP),
whichhadpavedthewayfortheprivatisationofpubliccorporations.Thishasbeenamajorstep
towardsbeingadevelopednation.Butitsmultifariousimpactonpolitical,economicandsocial
conditionsoftheeconomyandondifferentsectorshavenotbeenexaminedanywhereindetail.
In fact, recently, the privatisation of Air India has again startedadebateontheutilisationand
relevanceofprivatisationofpubliccorporationsasaneweconomicstrategytocombatthefiscal
issues ofthegrowingIndianpoliticaleconomy.Theverypurposesbecauseofwhichthepublic
sector remains the choice for the strategywere:(i)itcheckstheuncontrolledoperationsofthe
market forces; (ii) private players demand more incentives for investing in certain particular
regionsofIndia,whichIndiaencourages;and(iii)becauseonlythen,thepurposeandobjective
of social justice would be fulfilled.
1.1 Privatisation and Its Effects on Indian Business
1
It is essential to know that the burden of monetisation of government assets, such as public
corporations, would be on both the poor andtheinformalsector.Inlinewiththeprivatisation,
thegovernmenthasnowcomeupwithaprogramme,theNationalMonetizationPipeline(NMP),
whose aim is primarily to lease out the infrastructural projects across twenty different
classificationsofassets.Theimpactofsuchstrategiesishugeandlong-lasting.Inprivatisation,
wealthistransferredfromthegovernment’shandtothecorporates,whichhasadirectimpacton
theinequalityindex.Butithastobeborneinmindthatthesaleofservicesviatherouteoflease
ofassetswouldbedisastrousfortheeconomyandforthedisadvantagedgroupsofsociety.One
ofthedirectimpactswouldbeasuddenandhugeincreaseinprices.Thishasledtotheexclusion
of disadvantaged and vulnerable groups from the formal sector altogether. Privatisation at
various levels affects public organisations in three ways. Firstly, it completely changes the
ownership structure of publicorganisations;secondly,itchangestheorganisationalstructureof
the corporation; and thirdly, at the operational level, it works towards the improvement of
efficiency and an increase in profitmargins.Theseimpactsdonothaveanarrowcompassand
have the tendency to affect the larger sections of society. It is necessary to understand that
privatisation has both normative importance and scholarly significance in the Indian
political-economic-socialset-up.Andsince1991,privatisationhasbeenseenasoneofthemost
importantpolicyinitiativestoseeIndiaonthenewpathofdevelopment.Alltheabove-referred
policy initiatives are targeted to serve the public interest only. Whereas, thisnotionof"public
interest" remains largely undefined.
"Public interest" consists of three important components: political, social and economic.
Political, firstly, ensures maximum representation; whereas, secondly, this social dimension
relatestothelastindividualpresentinthestatetoleadtotheinclusionoftheinterests.Thethird
dimension is the economicinterestofthestates.And,Courtshavelessroletoplayinit,asthe
verypowerofjudicialreview,asisheldinBALCOEmployees’Union(Regd.)vs.UnionofIndia
andvariouscases,doesnotapplytothegovernment’spolicyissues.Infact,afteralongwait,in
October2021,AirIndiawasprivatisedbythegovernmentandhandedovertotheTataGroupof
Companies for better corporate governance, again converting it into a profit-mining business.
Thepubliccorporationswhichareexpectedtogothroughtheexerciseofprivatisationare:Life
Insurance Corporation (LIC), Oil and Natural Gas Commission(ONGC),FoodCorporationof
India (FCI), Air India, etc.
0. What is Privatisation?
2
In the 1980s, little freedom was given to some of thosePublicSectorUndertakings(PSUs)to
accessthecapitalmarkets;theywereperformingwell.Infact,‘Privatisation’asastrategictool
for public sector reforms did not have many takers during the 1980’s. The objective was to
urgentlyaddresstheissueoffinancingfiscaldeficitsratherthanworkingonimprovingthereturn
on the capital invested. Before the creation of the Department of Privatisation in 1997, the
DisinvestmentCommissionwassetuptogiveareportontheworkingof50casesofPSU’s.In
fact, as per the twelfth five-year plan, the industrial policies which have proved successful in
reachingtheirobjectivesarenotthedirectoutcomeofcentralpoliciesbuthaveratherbecomea
possibilitybecauseoftheactiveinvolvementofmultifariousprivateenterprises.Privatisationof
public corporations is nothing but the involvement and participation of private players in the
running, management, and also ownership of public corporations. The complete management
andcontroloftheenterprisecomesintothehandsofprivateplayers.Thewelfareobjectiveswith
whichthecorporationswereinitiallyincorporatedalsochangedwiththechangeinmanagement.
And, in this way, conveniently, under the garb of privatisation, the public corporations start
workingfortheelitecapitalists,inotherwords,towardsthemaximisationofprofits.Oneofthe
arguments given in favour of privatisation is that the growing concentration of wealth in the
hands of private bodies will return to the market only, meaning to the poor. But the mute
question is, once the rich would start controlling the state and the state power would be
privatisedeverydaywithmorezeal,thenwhattypeofpoliticalpressurewillpushstatestofulfil
thewelfaretasks?Privatisationalsomeanspartnershipbetweenthepublicandprivatesector,and
in short, it also means the shrinking of the welfare state.
0. Advent of Privatisation
Privatisation of Public corporations started after the introduction of theNewEconomicPolicy
(NEP) in India in 1991, and since then, the debate for privatisationofpubliccorporationshas
gained momentum. Publiccorporationsnotonlyprovideimpetustotheeconomybyhelpingin
improving the GDPofthenation,buttheyalsoprovidemuchneededreorientationtobusiness,
along with necessary changes in both operational structure and adapting to new technologies.
Privatisationpromotescompetitionand,therefore,worksontheprincipleofprovidingincentives
to employees. At a scholarly level, it is necessary to examine the role of businesses in the
growing democracies, where theyfinancetheelectionsandsupportthepoliticalparties,sothat
whenever any political party comes to power, it will seek favourable and customised policies
fromthegovernment,andtheywilllobbygovernmentsonvariousissuesaffectingtheirbusiness
3
also. Jawaharlal Nehru’s model of development was completely different from the market
economybecausehismodelwasstate-leddevelopment,basedonimportsubstitutionasthecore
strategictool,andtherefore,heenvisionedthecommandingheightsoftheIndianeconomybased
on state ownership of heavy industries, which can also be characterised as anti-private
corporations.ItisnecessarytoknowthatNehruwasnotanti-business,buthewaskeenonstate
interventionwhenitcametopromotingheavyindustry.However,Indiahasseenrapideconomic
growth since 1991, and economic growth has been steered to its bestinthelastthreedecades
withthehelpofanallianceofstateandprivatebigbusinessplayers.Though,itislopsided,asit
is leading to (i) growth in inequalities, (ii) absence of holistic and inclusive policies, and (iii)
exclusion of the most disadvantaged persons from mainstream society, etc.
0. Why is Privatisation Necessary?
It hasbeengenerallyseenthatpubliccorporationsareailingprimarilybecauseofashortageof
adequatefundsoralackofeffectivemanagementandcontrol.Thisleadstopoorperformanceof
public corporations, thereby contributing almost negligible to thegovernmentexchequerwhile
also failing tomeettherequirementsofthepublicatlarge.Insuchcircumstances,privatisation
ofpubliccorporationsactsasarayofhopesinceitnotonlyliftsitssustainabilityastheprivate
partiesfocusmoreontheoutput,efficiency,anddeliverabilityofthecorporationbutalsosaves
finances and crucial time for the government. Privatisation was necessary because the
performanceofpubliccorporationswasbecomingquestionablebecauseoftheirlowqualitative
outputandlackofcompetitiveness.OncethebackboneoftheIndianeconomyslowlybecamea
liability with the passage of time because of its working culture and environment, which was
non-competitiveandlethargicintheirapproach,publiccorporationsstartedseeingitsdoomsday.
Public corporations started missing the much necessary innovation andinfusionofnewnessor
freshnessofobjectivesandbusinessculturetoworkon.And,thisledtotheadoptionofapolicy
of privatisation, and one can examine its impact by the fact that the Twelfth Five-Year Plan
entails that the credit for the success of industrial policy cannot be attributed solely to the
centrally planned schemes and programmes; rather, it is the active involvement of the private
players in the economy which has paved the way for a successful economy. The Twelfth
Five-YearPlanthereforefurthersuggestedthattheremustbeconstantdialogue,interaction,and
collaboration between the producers and the government. This objective is very different and
such a paradigm shift is a necessity to pave the way for the successful implementation of
privatisation as a policy, as evident from the Twelfth Five Year Plan 2012–2017, Volume II,
4
Chapter 13. The Manufacturing Policy of 2011 was also in consonance with the aims of
privatisation, as its objective was to:
(i) To increase the manufacturing growth up to 14 percent,
(ii) Creation of jobs
(iii) Domestic value addition as a prime strategy towards "depth" manufacturing,
(iv) Indian manufacturing should be enhanced to make it globally competitive
(v) Promoting sustainability of growth in consonance with the environmental needs
These goalscanbeachievedonlywhenprivateplayerswouldbeabletounderstandtheirplace
intheeconomyandtheexpectedroletheyhavetoperformintheeconomy,sothattheyshould
startbehavingandactingaccordingly.ThecontributionofthemanufacturingsectortotheGross
Value Addition has grown up to 17 percent in the past four years. Thus, it is clear that the
contribution of the manufacturing sector has increased tremendously in the past many years,
whose primary focus is on the simplification and rationalisation of producers for generating
investment in the economy.
0. Impact of Privatisation of Public Corporations in India
There are two comprehensive approaches used for the successful implementation of
privatisation:
(i)StrategicSales:Instrategicsales,thecontrolledstakeinthecorporationissoldtoonebuyer
itself
(ii) Open Market Sales: Inthisapproach,thesharesofthecorporationaresoldtothepublicat
large
Therearevariousbenefitswhichthepubliccorporationshave,especiallyinstrategicsales,such
as:
(i) The buyer, being a private player, infuses new technologies into the corporations.
(ii) The private playersbroughtforthnewcompetitiverulesofgovernance,whichaddedtothe
efficiency of the organisation.
5
(iii)Itdirectlyaffectsthegovernment'scontroloverthecorporation,whichhasitsownpolitical
and operational difficulties and ramifications.
OpenMarketsalesstrengthentheinstitutionsandalsohelpinbuildingabetterenvironmentfor
corporategovernance.Rather,oneofthepurposesofdisinvestmentistopromotetheconceptof
professionallymanagedcompanies.Thebetterdisinvestmentstrategyisinclusiveofadispersed
shareofownershipamongstbillionsofhouseholds.Asanoutcome,thebenefitswouldbeshared
with the people of India. Though the international experience has shown adverse effects of
strategicsalesalso,suchasinmostLatinAmericancountries,thisprocesshasprovedtobefatal
anddetrimentaltothepoliticaleconomyofthenation.Italsoaffectstherightsoftheemployees.
We have seen various cases on theissueofdisinvestmentandprivatisationwheretherightsof
theemployeesareabrogatedastheyareleftontheirowntosurvive.Inthecaseofdisinvestment
ofAirIndia,therefore,itwascategoricallymentionedbytheGovernment,thatnotevenasingle
employee shall be laid off from Air India for at least a minimum period of one year.
0. Impact of Privatisation on the Concept of State
Privatisationalsohasanimpactontheveryconceptofstate,becausethepurposeofthestatein
present times is to perform multifarious welfare activities affectingthepublicatlarge,suchas
healthservices,sanitation,water,electricity,telecommunications,infrastructure,railways,roads,
housing,etc.Privatisation,ontheotherhand,istakingthepublicresourcesfromthehandsofthe
state, however, these transfers would not yield any positive resulttowardsthesocietyassuch,
because, primarily public resources are meant for the public, especially the marginalised and
vulnerable groups of the society. But privatisation allows the easy transferofpublicresources
intoprivatehands,andasaconsequence,itdeprivesthenationofpublicrevenuewhichcanbe
utilised for the benefit of the public per se.
Public Private Partnerships (PPPs) is a new way, where instead of transfer, one can see
collaborationsfortheexecutionofprojectswhichhaslargerramificationsonthesocietyatlarge.
In a lot of other sectors, the government is working with private players to deliver essential
services to the public. Health services is one such sector, wherethegovernmentfromthepast
twodecades,isworkingwiththeprivateplayers.Infact,NationalHealthPolicy,2017discusses
notonlythepresenceofprivateplayersbutalsosuggestswaysandmeanstoengagewiththem
andtoachievethetargetofUniversalHealthCoverage.TheexaminationoftheworkingofPPPs
in the health sector gives varied results. However, in India, the situation is grim and gloomy.
6
ASHA workers, who are the backbone of the health infrastructure, arenotbeingtreatedfairly
when it comes to their nature of job and the incentives they receive. There are various other
important issues as well, such as access to information and a lack of transparency and
accountability.Further,theinadequatesupplyofmedicalproductsandtechnologiesalsoaddsto
their woes. In fact, the challenges to the present health system (based on PPPs) aresimilarto
those of a government sector, and their contribution to the large-scale government sector is
doubtful.Thegoalofthestateistoperformcertainessentialserviceswhichaffectthelargerpart
ofthesociety,but,becausemanyofthoseservicesareeitherhandedovertotheprivateplayers
toworkonandmanyofthemarebeenexecutedinconsonancewithPPPs,therefore,theconcept
of state has shrunk considerably in past three decades.
0. Relevant Case Study:Air India Case
Air India was won by TATA at acostofRs18,000crore.Essentially,AirIndiabelongstothe
TATAandagainitwasgivenbacktothemaftermanyyears.AirIndiawasnationalisedin1953.
Whereas,itwasfoundedbynoneotherthanJ.R.D.Tata.In1932,TataAirlines,anditwasonly
in1948thatitwastermedasAirIndia,tobenationalisedin1953.InternationalServiceswasthe
onewhichcanbetrulytermedasthefirstPPPsinIndiawiththefollowingstakes:49percentof
the government holding, 25 per cent with the Tatas and the rest with the public. Theyarethe
private players and know the nuances of this trade better than thegovernment,soAirIndiais
againhandedovertothem.Let’slookattheAirIndiaTataDeal.Thehighlightsofthesameare
taken from the [Link] website for reference.
● TataSons’winningbidofRs18,000croreforAirIndiawashigherthanthereserveprice
of Rs 12,906 crore set by the central government, the DIPAM Secretarystated,adding
thattheCentrewillgetRs2,700croreincashfromTatasforthesaleofits100percent
stake.
● Notably,Tata’swinningbidofRs18,000crorecomprisestakingoverRs15,300crorein
debt and paying the rest in cash.
● The central government has laid down certain conditions for Tata. According to the
DIPAM Secretary, Tatas cannot transfer the Air India brand and logo for five years.
These can be transferred to only Indian person after five years.
● Tatas will have to retain all staff of Air India for 1 year. However, the group can
subsequently offer a voluntary retirement scheme (VRS) in the second year.
0. Conclusion
7
Survival ofthefittestisthecardinalprincipleofeverycompetition.Thesocio-economicobject
of the Indian Constitution presupposes social justice as the prime principle of all government
policies, and therefore, the growth and development of public corporations in the democratic
setupwasverywellsuited.Thisledtothegrowthofinfrastructureconsistingofheavyindustries
andalsoprovidedemploymentopportunitiestothemajorityofpersons.Thesedays,thebusiness
environment is changing at a magnificent pace. Both public and private enterprises have to
constantly mould themselves in such a fashion so as to enable them to adapttoandadoptthe
rapidlychangingworld.Accordingly,thereshouldbeanendeavourtopromoteboththeprivate
sphere and the public sphere equally, so as to fulfil both the demands of the market and the
Constitution. The Constitutional obligation of equal distribution of resources can be a reality,
onlywhenprivatisationischeckedonthebasisofruleoflawandpubliccorporationsshouldbe
promotedatthecostofprofitmargin,butgivingvaluetotheobjectiveofthepubliccorporations
– heavy or big industries belong to the society. It is, therefore, necessary to double check the
policy provisions related to privatisation so as to see and analyse their impact carefully,
especiallywhensucheconomicpoliciesareoutsidethepurviewofjudicialreviewasobservedin
the case ofIndian Express Newspapers v. Union ofIndia (UOI).
Wecandrawvariousconclusionsoutoftheabovestudies.Firstly,asapractice,itisnotsafeto
allow private players to play their own profit margin games, because they will not pass the
profitsbacktosociety.Secondly,PPPsarebetterinmanyaspectsbecauseonecanrelatetothem
easilywiththegovernmentsectorandalsootherwise.Thirdly,thereisastrongneedtoidentify
good public corporationsandmakethembothsuccessfulcompaniesandsuccessfulemployees.
Thank you very much.
8
Administrative Adjudication - I
Introduction
Helloeveryone.Today,wewilldiscussanimportanttopicwithinadministrativelaw,namely
administrative adjudication. The discussiononthistopicisdividedintotwoparts.InPartI,
we will discuss the basics of administrative adjudication; the nature of administrative
adjudication; structure and jurisdiction; tribunals in India; and tribunals within the
constitutional framework. While in Part II, we will discuss: evidence in administrative
proceedings; burden of proof; doctrine of judicial notice; res judicata; arbitrariness in
adjudication; doctrine of stare decisis; and contempt of an administrative adjudicatory body.
India has a unified judiciary, with the courts constituting the first level of theadjudicatory
framework, which is then supplemented by a whole set ofmechanisms.However,itwould
alsobeincorrecttosuggestthatonlythecourtsperformthefunctionofadjudication.Instead,
adjudication in India, in addition to courts, is also performed by a range of administrative
bodies, with specified scope and focused expertise. These bodies, while performing
adjudicatory functions, may decide on questions of fact and law andarangeofclaimsand
controversies. While to begin with,theadjudicatoryfunctionswereperformedasincidental
to the performance of its administrative functions, more recently, these bodies have begun
discharging functions similar in breath and manner to courts. Over the pastfewdecades,a
largenumberofadministrativebodieshavebeencreatedwithspecialisedspheresfocusingon
particular sets of disputes.
ArangeoffactorshavefuelledthesystemofadministrativeadjudicationinIndia.Themost
relevant pertains to anexpansionofgovernmentalactivities,functions,andoperations,with
increased regulations, numerous instances involving issues involving rightsandobligations
of individuals may arise, whichmayeitherinvolveprivateentitiesortheStateoranyofits
instrumentalities.Thisinturnnecessitatesthecreationofasystemofadjudicationofdisputes
that can better and more effectively respond to the entire concern thanacostlyinstanceof
litigation. Additionally, such disputes are only likely to contribute to the increased docket
explosionand,asaresult,faceadditionalsystemicdelay.Anoldbutstillrelevantadagegoes,
justice delayed is justice denied. The administrative adjudicatory system assists in the
realisation ofthehallowedendeavourofeffectivejusticebyenablingspeedy,lesstechnical,
and more decentralised determination of matters.
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Administrativeadjudicationalsoenablesdeterminationofmattersthroughtheapplicationof
both law and policy considerations such aspublicinterest,whichinturnaredeterminedby
considerations of social goals, economic policy, competing public interests, etc. This is so
because present-day governance gives rise toconflictsbetweenprivateandpublicinterests.
These conflicts then have to be resolved in view of the larger social and public policy
context. In the words of WadeandPhillip“m
oderngovernmentgivesrisetomanydisputes
whichcannotappropriatelybesolvedbyapplyingobjectivelegalprinciplesorstandardsand
depend ultimately on what is desirable in the public interest as a matter of social policy.”
Administrative adjudication also allows for specialised knowledge and specific expertise
among adjudicators, unlike in the traditional court system wherein the judges have more
generalised knowledge and little industry experience. As a result, where highly technical
matters are involved or the subject matter requires extremely specialised knowledge, e.g.,
taxation or telecommunications, such matters could be better dealt with by a system that
imbibes greater technical expertise, increased flexibility, and, inspecificinstances,relevant
industry experience. This could be considered as an additional advantage ofadministrative
tribunals, which enable a broad-based membership from disciplines other than law.
Thatsaid,administrativeadjudicationisnotwithoutconcerns.Amajorconcernisthetransfer
of judicial functions from courts to administrative bodies. Courts are designed by the
Constitution of India and laws made thereunder asentitiesindependentfromtheexecutive.
This forms the core of the principle of separation of powers. The manner and mode of
appointmentoftribunalsisaproblemi.e.,theneutralityandobjectivityofthemembersofthe
administrative tribunal alwaysremainatalevellessthanthoseprovidedbytheCourts.The
proceduresofthecourtarehandmaidenstojustice.Theyareprovidedtoensuretransparency
and objectivity. While tribunals may provide flexibility, dilution of crucial proceduresmay
also dilute safeguards meant to secure the proceedings, parties, and outcomes. To guard
against these concerns, all administrative bodies are required to adhere to the norms of
natural justice and fairness, in addition to imbibing other safeguards in their decisional
process.ThiscouldeitherbeanexpressrequirementundertheparentActor,intheabsence
thereof, be read implicitly.
Nature of Administrative Adjudication
2|Page
While administrative adjudication involves administrative bodies rendering administrative
justice, perhaps the best way to frame it would be to suggest that they are quasi-judicial
bodies that adhere to a combination of judicial and administrative requirements. Thus, the
idea of quasi-judicial implies the application and exercise of administrative powers in a
judicial manner.
Whilenoextensivetesthasbeenclearlyarticulatedtodistinguishbetweenquasi-judicialand
administrativeproceedings,itindicatesthatquasi-judicialproceedingstosomeextentmirror
andimbibecertaincrucialqualitiesofjudicialproceedings.Thiswouldinclude,forinstance,
adherence to norms of natural justice and fairness. Despite such understandings, the
distinctionbetweenanadministrativeandquasi-judicialproceedingtendstobeconfusing.In
anattempttoclarifytheconfusion,theSupremeCourtofIndiainIndianNationalCongress
(I) v. Institute of Social Welfare,AIR 2002 SC 2158,observed:
"W
here—(a)astatutoryauthorityempoweredunderastatutetodoanyact;(b)whichwould
prejudicially affect the subject; (c) although there is no lis or two contending parties, the
contestisbetweentheauthorityandthesubject;and(d)thestatutoryauthorityisrequiredto
act judicially under the statute, the decision of the said authority is quasi-judicial."
In otherwords,ifthereisalisbetweenthepartiesthatarebeforeastatutoryauthority,then
even in the absence of any other attribute of a quasi-judicial authority, such a statutory
authoritywouldbedeemedtobeaquasi-judicialauthority.However,evenintheabsenceofa
lis, the authority would be a quasi-judicial authority if it is required to act judicially in
arriving at its decisions, either expressly or impliedly, particularly under the applicable
statute.
Structure and Jurisdiction of Administrative Adjudicatory Bodies
Thevastsetofadministrativefunctionsthatpresent-daygovernanceentailshasgivenriseto
numerous administrative adjudicatory bodies. They are often established directly by the
relevantlegislature,butinsomeinstances,alsobytheexecutiveunderdelegatedlegislation.
Over the years, a vast and complex web of such bodies has beenconstituted,withvarying
structures,designs,andpowers.Thisoccursbecausemostsuchbodiesareestablishedonan
adhoc basis, having jurisdiction overawiderangeofdisputeswithinaspecifiedarea.Such
diversity often renders detailed studies concerning such bodies rather difficult. This is,
however, not to suggest that these bodies are obscure or difficult to study.
3|Page
As indicated earlier, the jurisdiction of each such body is determined by the constituting
legislationororder.Asaresult,theirjurisdictionmayrangefromveryspecifictoextremely
broad. The procedure followed in these bodies also, while adheringtobasicnormssuchas
principles of natural justice, fairness, etc., differs widely. In many instances, these bodies
havethepowersofacivilcourt,includingthesummoningofwitnesses,examinationsunder
oath, production of documents, etc. These procedures are ordinarily elaborateduponinthe
statute constituting the body or concerned rules made thereunder.
An adjudicatory body may be made up of differentlevels,includingappellatelevels.Inall
such instances, each level retains its independence in functioning from the level above or
belowit.Inotherinstances,appealfromanadjudicatorybodymayliewiththecourt,andyet
in others, their decisions may be subject only to the extraordinary jurisdiction of
constitutional courts under Articles 32 and 226.
Tribunals in India
Themostprominentadministrativeadjudicatorymachinerybesidesacourtisatribunal.The
term "tribunal" does not have a specific meaning and may be used to indicate avarietyof
adjudicatorybodies,including,attimes,paradoxically,thecourt.InthecaseoftheHarinagar
SugarMillsLtd.vs.ShyamSundarJhunjhunwala(19622SCR339),theSupremeCourthad
observed that all tribunals are not courts, though all courts are tribunals. However, for the
purposesofthischapter,tribunalandcourtaretakentomeanseparateentities.Tribunalsare
adjudicatorybodiesthatareconceptualisedasseparate,distinct,andindependentofexecutive
control.Thesefeatures,namely,separationfromexecutivecontrolandexclusiveadjudicatory
function, ensure a greater degree of autonomy and objectivity in decision making. This is
important as the tribunals are meanttoimpartiallyadjudicatedisputesbetweencitizensand
the administration. Tribunals generally attempt to achieve the following objectives:
1. provides an adjudicatory substitute to courts, without moving into the domain of
alternate dispute resolution mechanisms;
2. function of settling of disputes is moved away from administrative officials to an
independent adjudicative system, improving the quality of decisions; and
3. establishing an appellate system for decisions rendered by administrative officials
and, in effect, providing an effective supervisory mechanism for the latter.
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InIndia,Article136oftheConstitutionofIndiaprovidesthemostexpansiveunderstanding
of tribunals. When compared to courts, tribunalsdifferinthemannerinwhichmembersof
thetribunalareappointed,theirfunctioningsupervisedandtheirserviceregulated.Amember
ofthetribunalisappointedbytheexecutive,unlikeajudge.Consideringtheexpansivework
undertakenbythetribunals,oftenspecialistmembers,includingsittingandretiredjudges,are
appointed. This essentiallyrendersthestatusofatribunalmemberassomewhatofahybrid
with few characteristics of a judge and the remaining of a civil servant. This further
reinforcestheautonomousstatusofthetribunalbyavoidinganimpressionofbiaswhichan
administrative personal, no matter how senior, may generate.
Thatsaid,tribunalsalsoimbibetheshortcomingsofotheradjudicatorybodies.Forinstance,
it may not reach the level of independence and autonomy enjoyed bythecourts;increased
flexibility may come at the cost of dilution or doing away of procedural safeguards; its
members may not be legally trained, and given such a lack, they may face increasing
difficultyinunderstandingandapplyingfact-findingprocedures;etc.Yet,eveninthefaceof
such prominent concerns, tribunals have continued to mushroom and flourish in India.
Tribunals and Constitution of India
As indicated earlier, an important reason for the conceptualisation of tribunals was the
pending arrears before various courts in India. The Law Commission of India in its XIV
reportin1958advocatedthesettingupoftribunalsinviewofinherentadvantageslikespeed,
procedural simplicity, and availability ofspecialisedknowledge.Atthesametime,theLaw
Commission was clearly of theopinionthatthetribunalsystemmustbesupplementaryand
not supplant the ordinary law courts.
In 1965, the Administrative Reforms Commission set up a study team on administrative
tribunals, which recommended the setting up of tribunals for specialised areas including
servicematters,salestaxappeals,customappeals,transportmatterappeals,etc.Theideawas
to have an intermediate step between the courts and administrative decision-making
authorities, which had the power toreviewonbothfactsandlawthedecisionsrenderedby
any administrative authority. It would, however,betenyearsbeforethecentralgovernment
considered the need for establishing such specialised tribunals. Onecouldalsosuggestthat
this eagerness was in view of the observations of the Supreme Court of India in Siemens
Engineering Mfg. Co v. Union of India AIR 1976 SC 1785, wherein the apex court had
5|Page
recommended constituting autonomous tribunals. In 1976, the Constitution of India was
amended by the 42nd Amendment to add two new provisions to the Constitution, Articles
323A and 323B.
Article323AempowersParliamenttomakelawsestablishingtribunalstoadjudicatedisputes
relatingtorecruitmentandconditionsofserviceofpersonsappointedtopublicserviceunder
the Central, State, or any local authority, or a corporation owned or controlled by the
government. The law made by Parliament for the purpose may specifythejurisdictionand
procedureofthesetribunalsandmayexcludethejurisdictionofallcourtsexceptthatofthe
SupremeCourtunderArticle136oftheConstitution.Importantly,Article323A(3)provides
that the provisions of Art 323A override any other provision of the Constitution or ofany
other law. A law under Article 323A could be enacted only by the Parliament of India.
Article323BontheotherhandempowerstheParliamentandtheStateLegislaturetoprovide
bylawforadjudicationortrialbytribunalsofanyofthedisputesoroffenceswithrespectto
a range ofmattersincludingforeignexchange,landreforms,etc.Suchalawestablishesthe
hierarchy of tribunals;specifies their powers andjurisdiction; andlays down their procedure.
The lawestablishingthesetribunalsmayexcludethejurisdictionofallcourtsexceptthatof
the Supreme Court under Article 136. Under Article 323B (4), Article 323B would have
effect notwithstanding anything in any other constitutional or legal provision. A lawunder
Article323AcouldbeenactedbytheParliamentofIndiaonly,whileunderArticle323Bboth
the Parliament and the State Legislature could do it.
As is evident, the two articles arenotself-executingprovisions.Theyareinstead"enabling
provisions.Tribunalscanbesetuponlywhennecessarylegislationisenactedforthepurpose
by the relevantlegislature.PursuanttoArticle323A,ParliamentenactedtheAdministrative
Tribunals Act,1985 to provide for administrative tribunals for the Union and a separate
administrative tribunal for a State or a joint administrative tribunal for two or morestates.
Thesetribunalswereconstitutedfortheadjudicationortrialofdisputesandcomplaintswith
respecttotherecruitmentandconditionofserviceofpersonsappointedtopublicservicesand
postsinconnectionwiththeaffairsoftheUnionorofanyStateoranylocalauthoritywithin
theterritoryofIndiaorunderthecontroloftheGovernmentofIndiaorofanycorporationor
society owned or controlled by the Government. Rules have been framed for the
implementation of the various provisions of the Administrative Tribunals Act, 1985.
6|Page
InStateofKarnatakav.VishwabharathiHouseBuildingCoopSocietyAIR2003SC1043,it
was held that the two articles do not bar the legislature from establishing tribunals not
covered under but covered under appropriate legislative entries of Schedule VII. The two
articles also donottakeawaythecompetenceofParliamenttoestablishothertribunalslike
theCentralandStateCommissionsundertheConsumerProtectionAct1986.Itisimportant
tounderstandthatthetribunalestablishedunderArticle323Bmayalsobeempoweredtotry
certain categories of criminal offences and impose penal sanctions.Thetribunalsalsohave
the competence to test the constitutional validity of statutory provisions and rules.
The powers of the tribunals have often presented a source of controversy. While in SP
SampathKumarv.UnionofIndiaAIR1987SC386,thepositionoflawarticulatedwasthat
as regards the tribunal established under Article 323A and 323B, the jurisdiction of the
SupremeCourtunderArticle32andthatoftheHighCourtunderArticle226wasexcluded.
However,thiswasheldtobeanincorrectpositioninlawinthematterofL.ChandraKumar
v.UnionofIndiaAIR1997SC1125,whereitwasheld"thejurisdictionconferreduponthe
HighCourtunderArticles226and227andupontheSupremeCourtunderArticles32ofthe
ConstitutionispartoftheinviolablebasicstructureofourConstitution."Thus,alldecisions
of the tribunals, whether created under Articles 323A or 323B, will be subject to the writ
jurisdiction of the High Court under Articles 226 and 227. This reaffirms a basic
constitutional tenet, namely that judicial review is part ofthebasicstructureandcannotbe
ousted by a constitutional or statutory provision.
Over the years, the Supreme Court has on numerous instances looked at the issue of the
relationshipoftribunalswithcourts.In2010,inthecaseofMadrasBarAssociationv.Union
ofIndia2010(CivilAppealNo.3717/2005),theSupremeCourtofIndianotedthattribunals
havenotyetattainedcompleteindependence.In2015,theStandingCommitteeonPersonnel,
Public Grievance, Law and Justice recommended the creation of the National Tribunals
Commission, an independent body to administer all tribunals in India. InAugust2021,the
TribunalsReformsAct2021waspassedtofurtherstreamlinetheworkingoftheTribunalsin
India. This legislation is under review before the Supreme Court of India in Madras Bar
Association v. Union of India2010 (Civil Writ Petition804 of 2020).
Conclusion
7|Page
This chapterdiscussedindetailthegapsthatarepresentinthecurrentcourtsystem,which,
on the whole, impedes access to justice. In an effort to plug these gaps, themechanismof
administrativeadjudicationwasintroducedintheIndianlegalsystem,withtribunalsbeingits
most visible manifestation. While these mechanisms have, to some extent, been able to
addresstheshortcomingsofthecourtsystem,theiradhocformationandvagueincorporation
within the legal system has resulted in some inefficiencies. Overall, however, there is
consensus that tribunals have been able to supplement the overall adjudication system in
India, albeit with mixed results.
8|Page
Administrative Adjudication – II
Introduction
Helloeveryone.Wehadearlierbegunourdiscussionsonadministrativeadjudication.InPart
II of the discussions, we will consider a few core norms that have not been considered
elsewhere, such as evidence in administrative proceedings, burden of proof, doctrine of
judicial notice, res judicata, arbitrariness in adjudication, doctrine of stare decisis, and
contempt of an administrative adjudicatory body.
Evidence in Administrative Proceedings
The quality and probity of evidence often present challenging concerns. It isawell-settled
proposition that the Indian Evidence Act 1872 (IEA) does not strictly and in full measure
applytoproceedingsbeforeadministrativeadjudicatorybodies.Thisisbecauseinsistingthat
tribunals adheretoallrequirementsoutlinedintheIndianEvidenceAct(IEA)woulddefeat
some of the very purposes for which they were established, namely expeditiousness and
flexibility. As a result, the Indian Evidence Act (IEA) does not formally apply to matters
beforeadministrativeadjudicatorybodies,andsuchabodymaynotinsistonfullapplication
of the provisions of the Indian Evidence Act (IEA) in proceeding before it. The Supreme
CourtofIndiainUnionofIndiav.TRVarma(AIR1957SC882),inamatterconcerningan
enquiry into the misconduct of a public servant, had observed:
"I nadisciplinaryenquiry,rulesofnaturaljusticehavetobefollowed.Ifthisisdone,thenthe
enquiryisnotopentoattackonthegroundthattheprocedurelaiddowninEvidenceActfor
takingevidencewasnotstrictlyfollowed.Thelawrequiresthatsuchtribunalsshouldobserve
rulesofnaturaljusticeintheconductofinquiry,andiftheydoso,theirdecisionisnotliable
tobeimpeachedonthegroundthattheprocedurefollowedwasnotinaccordancewiththat
which obtains in a court of law."
Similarly,inamatterinvolvingtheconfiscationofgoodsundertheSeaCustomsActof1878,
theSupremeCourtheldthatthegaugingofadequacyandsufficiencyofevidenceliesinthe
domainoftheCollectorortheappellateauthority,whichisthefinaltribunaloffacts.Solong
asthecollector’sappreciationofevidence,includingcircumstantialevidence,whichisbefore
her was not illegal, perverse, devoid of common sense, or contrary to the rules of natural
justice, the findings need not be disturbed.
Thatsaid,whilestrictrulesofevidencemaynotbeapplicabletoquasi-judicialbodies,itdoes
not imply that they can actinanarbitrarymannerwhenrespondingtoquestionsrelatingto
probityandqualityofevidence.TheSupremeCourtofIndiainBareillyElectricalSupplyCo
v.TheWorkmen(AIR1972SC330),whichpertainedtoindustrialadjudication,categorically
stated that under the garb of respecting principles of natural justice, a tribunal, which is a
quasi-judicial body, could not actuponsomethingthatwasnotevidencetobeginwith.The
Court clarified that while to establish a contested fact, particular materials could be relied
upon, such reliance cannot be placed unless such materials are from a person who hasthe
competence to speak about them. Additionally, the party against whom such material is
sought to be used must also have been provided an opportunity to cross examine such a
person. The court clarified that
"..even ifalltechnicalitiesoftheEvidenceActarenotstrictlyapplicableexceptinsofaras
Section11oftheIndustrialDisputeAct1947andtherulesprescribedthereinpermitit,itis
inconceivable that the Tribunal canactonwhatisnotevidencesuchashearsay,norcanit
justifytheTribunalinbasingitsawardoncopiesofdocumentswhentheoriginalswhichare
in existence are not produced and proved by one of the methods either by affidavit or by
witnesses who have executed them, if they arealiveandcanbeproduced.Again,ifaparty
wants an inspection, it is incumbent on the tribunal to give inspection in so far as that is
relevant to the enquiry. "
Thus, while policies and principles underlying the Indian Evidence Act (IEA) may be
importedintoadministrativeadjudication,e.g.,fairness,theproceedingotherwise,toalarge
measure, must remain shorn of legalese and technicality. But this does not mean that the
authorities can actarbitrarilyinconsideringevidence.TheSupremeCourthasonnumerous
instances reiterated that adjudicatory bodies cannot base their conclusions on pure
conjectures and surmises, there must be legal evidence to support conclusions that the
administrative adjudicatory body arrives at as was held in Tribhuban Prakash Nayyar v.
Union of India (AIR 1970 SC 540). An order by thetribunalwhichismadeonguesswork
andpureassumptionandnotonanyevidencewouldbeinvalidandlikelytobesetaside.A
requirementofproofcannotbesubstitutedbyassumptionsandsurmises.Inotherwords,the
evidence relied upon should have some probative value.
Ordinarily,atribunal’sappraisalofevidenceisbeyondchallengeonthegroundsofadequacy
andsufficiency.Inotherwords,theinadequacyandinsufficiencyofevidenceonapointand
the inferences drawn therefrom are within the exclusive jurisdiction ofthetribunal.Thisis
the broader judicial policy and was affirmed by the Supreme Court ofIndiaintheStateof
AndhraPradeshv.CVenkataRao(AIR1975SC2151).Interferenceispermittedunderrare
circumstances and on grounds noted earlier (non-exhaustive). Decisions of an adjudicatory
bodycanbechallengedbeforethecourts,namelyunderArticles226and227beforetheHigh
Court and Article 136 before the Supreme Court of India.
Burden of Proof
EventhoughtheIndianEvidenceActof1872doesnotapplytoadministrativeadjudication,
thegeneralprinciplescontainedthereinappliestoalimitedextent,includingthosepertaining
to the burden of proof. The constituting legislation for a particular authority may outline
specific requirements regarding the burden of proof. In such situations, the specific rules
would apply over generalrules.AccordingtotheIndianEvidenceAct(IEA),theburdenof
proof lies with the person who asserts aclaiminhisfavour.Ordinarily,thepartyonwhom
theburdenlieshastoestablishaprimafaciecase,andoncethathasbeendone,theburdento
rebut that shifts to the other party. The burden of evidence then continuously shifts as
evidence is introduced by one side or the other.
Therefore,whatisrequiredisnotthepresentationofeveryconceivableoravailableevidence.
What is required is sufficient proof, which, if not contradicted, would lead to inferences
favourabletothepartypresentingit.Therulethereforeisthat,apartyclaimingthatamatter
bedecidedintheirfavourmustbeinapositiontoproveallnecessaryfactswithregardtoit.
This rule, however, is subject to a few exceptions: (i) the court (including administrative
adjudicatory authority) may presume certain facts (presumptionoflaw);and(ii)whereany
fact is particularly within the knowledge of any person, the burden of proving that fact is
upon that person.
The doctrine of presumption of lawfindsaplaceunderSection114oftheIndianEvidence
Act(IEA),whereundertheCourt"m
aypresumetheexistenceofanyfactwhichitthinkslikely
to have happened, regard being had to the common course of material events, human
conduct, and public and private business, in their relation to the facts of a particular case."
Doctrine of Judicial Notice
The doctrine responds totwoquestions–towhatextentandinwhatmanneranadjudicator
may, in making his decision, use material that has notbeenintroducedinevidence.Thisis
because, ordinarily, the court must only utilise the material before it to adjudicate and not
take into account any extraneous material to reach its conclusions. In other words, courts
require proof of all facts which are either not admitted or not covered by the doctrine of
judicialnotice.Section57oftheIndianEvidenceActprovidesanon-exhaustivelistoffacts
which the Indian Courts take judicial notice of. In view of the above discussions, an
important query would pertain to the extent of the application of this doctrine to
quasi-judicial bodies. One could arguethatthisruleistheoutcomeofplaincommonsense.
Therefore, its extension to administrative adjudicatory bodies would neither be far-fetched
nor undesirable.
Res Judicata
The Code of Civil Procedure, Section 11outlinestheprincipleofresjudicata,whichnotes
that once a dispute between parties has been decided on merits by a competent court, it
shouldthennotbereopened.Thisistoensureandprovidefinalitytolitigation.Intheabsence
of such a rule, the matter islikelytobeendlesslylitigated.Thisrule,therefore,isaruleof
public policy. Insimilarmeasure,theprincipleofresjudicataalsoappliestoadministrative
adjudicatory bodies. This is subject to the tribunal strictly adhering to its competence and
jurisdiction. Failure to adhere to these restrictions would render their decision void. The
Supreme Court in Hope Plantations Ltdv.TalukLandBoardPeermade(1999)5SCC590,
held that to suggest that legal principles of estoppel and res judicata are inapplicable to
proceedings before administrative authorities would be fallacious. Instead, the correct
proposition in law wouldbethattheseprinciplesarebasedonpublicpolicyandjusticeand
therefore extremely relevant and apply in equal measure and force to such proceedings.
Arbitrariness in Adjudication
A fundamental rule of adjudication is that an adjudicatory bodycannotactarbitrarily.This
rule applies to all adjudicatory bodies—judicial andquasi-judicial—namelythatwhilethey
are vested with discretion, such discretion should be exercised in accordance with
well-recognisedprinciples.Quasi-judicialpowershavetobeexercisedfairly,reasonably,and
impartially.Amechanicalexerciseofauthoritywithoutweighingrelevantcircumstancesand
materialsbeforethetribunalwouldamounttoanarbitraryexerciseofpowers.Asimilarcase
wouldbemadeifthetribunalexercisesitsdiscretiononthebasisofirrelevantconsiderations
orignoresrelevantconsiderations.InMahindra&MahindraLtdv.UOI(AIR1979SC798),
itwasheldthatdiscretionvestedinanadjudicatorybodyisjudicialdiscretionandthesame
cannot be exercised in an arbitrary, vague and fanciful manner. Where an administrative
authority has based its decisions on considerations extraneous to evidence and merits, or
where its conclusions are prima facie arbitrary and capricious to such an extent that no
reasonable person could have arrived at them, such a decision would fail the test of
arbitrariness. Aquasi-judicialorderbasedonvaguegroundsoronnoevidencewouldbean
invalid order.
Questionsofrelevancyarealwaysfact-specific.Whatisrelevantforexercisingauthorityina
set of particular circumstances may not have the same relevance in another set of
circumstances. In Ajantha Transports (P) Ltd. v. TVK Transports (AIR 1975 SC 123), the
principlethatdiscretionexercisedbyatribunal,ifdonesoonirrelevantgrounds,mayvitiate
itsdecision,wasreaffirmed.Thiscaseconcernedtheexerciseofpermitissuingpowerunder
Section 47 of the Motor Vehicles Act 1988. The court observed
"A grantoritsrefusalontotallyirrelevantgroundswouldbeultraviresoracaseofexcess
power.Ifagroundwhichisirrelevantistakenintoaccountwithotherswhicharerelevant,or,
a relevant ground which exists is unjustifiably ignored, it could be saidtobeacaseofthe
exercise of power under Section 47 of the Act, which is quasi-judicial, in a manner which
suffers from a material irregularity."
Similarly,inDunlopIndiav.UnionofIndia(AIR1977SC597),theApexCourtquasheda
determinationbythecollectorofcustomsasitwasbasedonanirrelevantfactor.Inthiscase,
theitem,VPLatex,wasclassifiedunderthewrongentrysoastobemadesubjecttoahigher
duty. The court ruled that the customs collector had assessed the duty on the imported
commodity on the sole basis of its "ultimate use," whereas under the Customs Act, the
"c ondition of the article at the time of importing is a material factor for the purpose of
classificationastounderwhatheaddutywouldbeleviable."TheCourtruledthatthe"b asis
ofthereasonwithregardtotheenduseofthearticleisabsolutelyirrelevantinthecontextof
the entry where there is no reference to the use or adaptation of the article." Thus, the
ultimate use had been an irrelevant factor, it had been taken into account, rendering the
decision invalid and likely to be set aside.
Whileaquasi-judicialdecisionbasedonirrelevantconsiderationsisbad,ithasbeenclarified
bytheSupremeCourtinZoraSinghv.JMTandon(AIR1971SC1537),thatevenifamongst
thereasonsgivenbyanadjudicatorybody,somereasonswereextraneousornon-existentbut
the rest of the reasons were relevant and sufficient to justify the order, the conclusions so
reached by the body were proper and would not be vitiated. The crucial point here is to
ensure that a decision must be arrived atonanobjectiveappraisaloffactsandappraisalof
law and not simply on the subjective satisfaction of the adjudicator.
Similarly, in Swaran Singh v. State of Punjab(AIR1976SC232),theorderofthetribunal
referred to several grounds, some of which were relevant while otherswerenot.Theorder
wassustainedbytheapexcourt,whichobservedthatthetribunalwouldhavemadetheorder
on relevantandexistinggrounds,andtheexclusionofnon-existentgroundswouldnothave
affected the ultimate decision. It was noted that "w
here the order of a domestic tribunal
makes reference to several grounds, some relevant and existent and others irrelevant and
non-existent, the order will be sustained that the authoritywouldhavepassedtheorderon
thebasisoftherelevantandexistinggrounds,andtheexclusionofirrelevantornon-existing
grounds could not have affected the ultimate decision."
Doctrine of Stare Decisis
Whilethedoctrineofstaredecisisapplieseventoadministrativebodies,itdoesnotdosoin
full force or to the level to which it applies to regular courts. This is because while
administrativeadjudicationisrequiredtoadheretothedecisionsofthehighercourtssuchas
the Supreme Court of India and High Courts, the requirement that it consider its own
previous decisions as precedent does not operate. Therefore,anadministrativeadjudicatory
body,intheabsenceofabindingdecisionfromthesuperiorcourts,couldwelldifferfromits
earlier decision.
At the same time, it is important to considerthatwhilesuchapowerexists,afundamental
ideawithinalegalsystemisthepredictabilityoflawanduniformityofdecisionsasregards
thesamepoints.InUnionofIndiav.ParasLaminates(1990)4SCC454,theApexCourthad
emphasised that adjudicatory bodies must adoptaconsistentapproachintheiradjudication,
noting "r ationale of this rule is the need for continuity, certainty, and predictability in the
administrationofjustice.Personsaffectedbydecisionsofthetribunalsorcourtshavearight
to expect that those exercisingjudicialfunctionswillfollowthereasonorthegroundofthe
judicial decision in the earlier case onidenticalmatters."This,however,doesnotapplyto
erroneous decisions, and such decisions should be corrected by larger benches.
Contempt of Administrative Adjudicatory Bodies
An important question that arises is whether there can be contempt of administrative
adjudicatorybodies,andifyes,howdoesthelawaddressit?Oneplacetostartwouldbethe
ContemptofCourtsAct1971.Section10oftheActnotesthattheHighCourthasthesame
power in respect of contempt of courts subordinate to it asithasinrespectofcontemptof
itself. Therefore, the question is whether an administrative adjudicatory bodyisacourtfor
the purposes of the Act and whether it is subordinate to the High Court.
The word "tribunal" in Article 227 has been broadly interpreted toincludealladjudicatory
bodies. Therefore, the High Court can deal with matters of contempt in respect of an
adjudicatory body which falls under its judicial superintendence under Article 227. In this
regard,itisimportanttounderstandthattheideaofsubordinationforthepurposeofSection
10, Contempt of Courts Act 1971, means judicial subordination and not administrative
subordination.ThiswasacknowledgedbytheSupremeCourtofIndiainBoardofRevenuev.
Vinay Chandra (AIR 1981 SC 723), wherein itwasheld"thephrasesubordinationusedin
Section 10 is wideenoughtoincludeallcourtswhicharejudiciallysubordinatetothehigh
court even though administrative control over them under Article 235 of the Constitution
does not vest in the High Court."
Further,thetestofwhetheranadjudicatorybodyisacourtwasarticulatedbytheApexCourt
in Brajnandan Sinha v. Jyoti Narain (AIR 1956 SC 66), wherein it held that "in order to
constituteacourtinthestrictsenseoftheterm,anessentialconditionisthatthecourtshould
have, apart from some ofthetrappingsofajudicialtribunal,powertogiveadecisionora
definitive judgement which has finality and authoritativeness, which are essential tests of
judicial pronouncement." Thus, the following fourconsiderations become important:
1. Nature of the power exercised by the concerned authority must be judicial;
2. Source of the power must originate in a statute;
3. Mannerofexerciseofpower-essentialattributesofthecourtmustbepresent,though
minor trappings may be absent;
4. Bindingdecision-theresultantdecisionmustbeafinalandbindingonebetweenthe
parties, subject to review and appeal as provided under the law.
Conclusion
The process of adjudication is a sacred one. The Indian legal system prescribes arangeof
requirements that any adjudicatory authority, judicial, quasi-judicial or administrative
authority, must adhere to in making decisions. While the range andstrictnessofadherence
may vary, some core norms apply strictly in all situations. This lecture dealt with
identificationoffewofthesecorenormsandinitiatedanintroductorydiscussiononthem.It
highlights their understanding and application through the discussion of relevant case laws.
Administrative Bodies and Their Powers
Introduction
Good morning, everyone. In this session, we would look atadministrativebodiesandtheir
powers. In broad terms, the powers of administrative bodies fall into two categories:
1. Statutory Powers—execution of laws, applying standards laid down in statutes or
delegated legislation from case to case; and
2. Non-Statutory Powers—to make and implement policies.
Statutory Administrative Powers
The law vests a whole range of administrative powers, including regulation of trade and
commerce; conducting investigations; granting licences; engaging in regulated activities;
conducting searches and seizure of property, etc. Statutes may also confer power on the
administration to take action in the interest of public health and safety, as was repeatedly
witnessedduringtheCOVIDpandemic,especiallyintermsoflockdownsundertheDisaster
Management Act 2005.
The most significant aspect of the administration is the ambit and scope of the statutory
powers.Animportantconcernthatarisesistheimpactoftheexerciseofsuchpowersonthe
rightsofindividuals.TheSupremeCourtinNaraindasIndurkhyav.StateofMadhyaPradesh
(AIR 1974 SC 1232) held that "if the executive action taken by the State Government
encroaches on anyprivaterights,itwouldhavetobesupportedbylegislativeauthority,for
undertheruleoflawwhichprevailsinourcountry,everyexecutiveactionwhichoperatesto
the prejudice of any person must have the authority of law to support it."
Non-Statutory Powers
Theextentandscopeofthegeneraladministrativepowerofamoderngovernmentcannotbe
definedprecisely.Theformulationofpolicyanditsexecutionaretaskswhichareentrustedto
the executive. It is important to understand that the administration does notalwaysrequire
statutory authorisation to act and execute a policy. There are instances wherein the
administration can execute a policy without a statutory sanction. Article 73 of the
Constitution confers executive power on the Central Government, which extends to all
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matterswithrespecttowhichParliamenthasthepowertomakelaws.Similarly,fortheState
Government with respect to the State Legislature under Article 162 of the Constitution of
India. The Supreme Court of India in Ram Jawaya v. State of Punjab, AIR 1995 SC 549,
explained the nature of executive power as under: “It may not be possible to frame an
extensive definition of what executive function meansandimplies.Ordinarily,theexecutive
power connotes the residue of governmental functions that remain after legislative and
judicial functions are taken away. The Executive government can never go against the
provisions of the Constitution or of any law. It does not follow from this that in order to
enabletheexecutivetofunction,theremustbealawalreadyinexistenceandthatthepowers
of the executive are limitedmerelytothecarryingoutoftheselaws.Theexecutivefunction
comprises both the determination of policy as well as carrying it out into execution. This
evidently includes the initiation of legislation, the maintenance of order, the promotion of
social andeconomicwelfare,thedirectionofforeignpolicy,and,infact,thecarryingonor
supervisionofthegeneraladministrationoftheState.“Itisthereforeclearthatthescopeof
executive power is residuary. It has been held that the government can undertake the
followingactivitiesadministrativelywithouttheneedtohaveanyspecificstatutorypowerfor
the purpose:
1. engaging in a trading undertaking—Article 298 of the Constitution of India;
2. enteringintoacontractwithanyperson,acceptingorrejectingatenderanddisposing
of public property;
3. conferring benefits on any person;
4. entering into treaties with foreign countries, but legislation may be required forthe
implementation of the treaty terms;
5. creating posts and making appointment thereto, promoting government employees
from lower to higher posts, and fixing their seniority, grades and emoluments;
creatingacadreormergingonecadrewithanotherorlayingdownserviceconditions
for its employees;
6. transferring government employees from one place to another;
7. establishing fair-priced shops;
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8. appointing an adhoc enquiry commission, etc.
At the same time, administrative authority simpliciter and administrative adjudicatory
authority have significant differences between them, namely:
Thereisnorequirementtogiveanopportunitytobeheardifthenatureofthefunctionbeing
discharged by the administrationisregardedassimplyadministrative.Ontheotherhand,if
thefunctionisofanadjudicatorynature,theconcernedpartyhastobegivenahearingbefore
making the order.
The administration has far more flexibility in exercising its administrative powers than
adjudicatorypowers.Whenadecisionismadeinanadjudicativecapacityonthemeritsofthe
controversy after hearingtheconcernedparties,theproceedingsarequasi-judicialinnature,
and they are required to adhere to basic norms of judicial decision making. This principle
doesnotapplytoadministrativedecisionmaking.Therearenorequirementsorlimitationsof
thenaturerequiredtobeadheredtobyaquasi-judicialbody.Similarly,aconcernedauthority
making an administrative decision is entitled to change or review the same later after
reconsideringthematter.Inthecontextofadministrativeorders,theSupremeCourtofIndia
inM.Satyanandamv.DeputySecretarytotheGovt.ofAndhraPradeshAIR1987SC1968,
observed,"w
eareunabletoacceptthecontentionthattheGovernmentcannotreviewitsown
order. It is a well settled law that in the caseofbonafideneed,subsequenteventsmustbe
taken into account if they are relevant on the question.”
In the case of an adjudicatory order, it is incumbent on the authority concerned to give
reasons for its decision. There exists no such obligation on the authority taking an
administrativeaction.Anadministrativeorderisnotinvalidatedforlackofreasons.Whileit
is desirable, it is not legally essential for an administrative order to be areasonedone.An
administrative order need not give reasons for its making unless the relevant statute under
which it is being made requires such reasons to be given.
Norms of judicial review vary to some extent between the two. It is possible that an
administrative authority imbibes a few characteristics of a quasi-judicial body. But this in
itself will not transform such administrative authority into a quasi-judicial one. This is so
because a determination of facts might need tobeundertakenbeforeanydecisioncouldbe
arrived at. While such a decision may affect the rights of an individual, the above
consideration in itself would not make the decision a quasi-judicial act.Thedistinguishing
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factor between the two is the requirement to act judicially, whichattachestoquasi-judicial
acts. To put the same itdifferently,ininstanceswheretheauthorityisempoweredtotakea
decisionthatislikelytoimpacttherightsofanindividualandwheretheauthorityisrequired
under the applicable legislation(s) toconductanenquiry,includinghearingtheparties,then
the authority would be consideredtobeaquasi-judicialauthority,anditsactions,including
thedecision,wouldbeaquasi-judicialact.ThiswasaffirmedinthecaseofIndianNational
Congress (I) v. Institute of Social Welfare,(2002)5SCC685.Additionally,aquasi-judicial
authorityisgovernedbytherules,whileanauthorityactingsimplyadministrativelyisguided
by policy and expediency.
Norms for an Exercise of Administrative Power
Astatutoryfunctionarymustactinaccordancewiththeframeworkandstricturesprovidedin
the statute. Issuanceoforaldirectionisnotcontemplatedwithintheambitofadministrative
law.Astatutoryfunctionaryisunderadutytopasswrittenorders.Anyactionofastatutory
functionarymustbewithintheapplicablestatute,andanythingoutsideitwouldbeillegaland
without jurisdiction. When exercising a power under a statute, a statutory authority must
apply its own mindandtheprocedureslaidthereundermustbescrupulouslyfollowed.This
was held by the Apex Court in Ramana Dayaram Shetty v.InternationalAirportAuthority
(1979) 3 SCC 489. In this case the Apex Court observed: "I t is a well settled rule of
administrative law that an executive authority must be rigorously held to the standards by
which it professesitsactionstobejudgedanditmustscrupulouslyobservethosestandards
on pain of invalidation of an act in violation of them."
Every statutory authority is bound by the rule of reasonableness and fairness, and their
actions arerequiredtobefreefromarbitrarinessandfavouritism.Thispropositionwasheld
inMeerutDevelopmentAuthorityv.AssociationofManagementStudies,(2009)6SCC171).
Applicationofmindisadequatelydemonstratedthroughclearrecordingofthereasonsforthe
decision by theauthorities.Instancesofabsenceorfailuretonotereasonsintheorderoras
partoftherecordmaybeindicativeofarbitrariness.TheSupremeCourtofIndiainJamshed
Hormusji Wadia v. Board of Trustees, Port of Mumbai (AIR 2004 SC 1815), held that the
focus of actions of theStateoritsinstrumentalitiesmustbeonthepublicgoodandinterest
and not be arbitrary or capricious. These are the objectives thatjustifytheexistenceofthe
state.
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It is important to remember that no legalfictioninlawcanbecreatedbyanadministrative
order. An administrative order that is passed bywayofmistakecanberecalledbythesaid
authority after complying with the principles of natural justice. An order by a statutory
authoritymustmeetthetestofreasonablenessvis-a-visprinciplesofnaturaljusticeespecially
whenthroughsuchanordercivilorevilconsequencesarevisiteduponcitizensofIndia.This
washeldinthecaseofV.C.BanarasHinduUniversityv.Shrikant(2006)11SCC4).Exercise
ofstatutoryfunctionsshouldnotbedoneinanarbitraryorcapriciousmanner.Theactionon
the part of the statutory authority must be bona fide. The statutory authoritymustexercise
their power in a judicious manner and in cognizance of societal concerns. That said,
authorities cannot bepermittedtotakeundueadvantageoftheirfailuretoactinaccordance
withthelaw.ThispropositionwasheldinKusheshwarPrasadSinghv.StateofBihar,(2007)
11 SCC 447). Similarly, default in discharge of statutory duty by the authorities cannot
prejudice the party which was the subject of statutory action.
Whereastatutoryfunctionisentrustedtoanauthority,theorderpassedbyitmaynotbeheld
to be invalid merely because no provision of law is cited orisincorrectlymentioned.This
proposition was outlined in the case of V. K. Ashokan v. Assistant Excise Commissioner
(2009),14SCC85).Wheretwostatutoryauthoritieshavebeenvestedwiththesamepower,
and if a matter has been taken up and heard by one authority, the other authority cannot
exercise that power. This proposition was outlined in the case of V.K.Ashokanv.Assistant
Excise Commissioner(2009), 14 SCC 85).
Doctrine of Public Trust
This doctrine has ancient roots, which some trace back to the Roman era. The basic idea
underlyingthisdoctrineisthattherearecommonresourcessuchaswater,air,etc.,whichare
held by the State in trusteeship for use by and for the benefit of all. In other words, such
commonresourcesaremeanttobeusedbyall.UnderRomanlaw,theseresourceswereeither
owned by no one (res nullius) or by everyone in common(r es communis).
The public trust doctrine is based on theunderstandingthatcertaintypesofresourceshave
suchgreatimportancetoeveryonethatitwouldbeunjusttoplacetheminprivateownership.
Theseresourcesaregivenfreelybynatureandthereforetheyoughttobemadeavailablefor
free and unimpeded use by everyone. While under English law, this doctrine extended to
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basic traditional uses such as navigation, commerce, fishing, etc. TheAmericancourtsand
later the courts in India expanded the concept to a much broader level.
In India, though its initial emergence was inenvironmentaljurisprudence,itsapplicationis
nowseeninareasbeyondthat.InRelianceNaturalResourcesLimitedv.RelianceIndustries
Limited (2010) 7 SCC 1, the Apex Court observed that "I t must be noted that the
constitutionalmandateisthatthenaturalresourcesbelongtothepeopleofthiscountry.The
natureoftheword"vest"mustbeseeninthecontextofthepublictrustdoctrine(PTD).Even
though this doctrine has beenappliedincasesdealingwithenvironmentaljurisprudence,it
has its broader application."
This doctrine has been most explicitly elaborated by the Indian Courts in the M.C. Mehta
series of cases. The Supreme Court of India in M.C. Mehta v. Kamal Nath, (1996), had
observedthatthepublictrustdoctrinewouldbeexpandedtoincludeallecosystems.InIndia,
the Apex Court has authoritatively held that the State is the trusteeofallnaturalresources
thatarebynaturemeantforpublicuseandbenefit.Asatrustee,itisunderthelegaldutyto
protecttheseresources,andtheycannotbeconvertedintoprivateownership.However,given
the increasing demands of society, some exceptions to this general rule have to be made.
This, however, would be required under the strength of a law. In the absence of such a
legislation, the executive acting under the doctrine of public trust cannot abdicate the
requirementsofitstrusteeshipandconvertthesepreciousresourcesintoprivateownershipor
transfer them for commercial use.
The Supreme Court has time and again utilised this doctrine as a standard for review of
governmental regulations and policies. Perhaps the most marked instance of its utilisation
wasinthe2Gspectrumcase,wherethedoctrinewasinvokedtoevaluategovernmentpolicy
for the allocation of 2G spectrum. In the Centre for Public Interest Litigation v. Union of
IndiaAIR2012SC3725,theApexCourthadobservedthatwhilethelegalownershipofall
naturalresourceslaywiththestate,thiswasinthenatureoftrusteeship,whichmeantthatany
distributionoftheseresourcesbytheStateamongitspeoplemustbegovernedbyprinciples
ofequalityandthelargerpublicgood.Inreachingthisconclusion,thecourtciteditsprevious
observationsinSachidanandPandeyv.StateofWestBengal(1987)2SCC295"S tate-owned
or public-owned property is not to be dealtwithattheabsolutediscretionoftheexecutive.
Certain precepts and principles have to be observed. Public interest is the paramount
consideration. One of the methods of securing the public interest when it is considered
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necessary to dispose of a property is to sell the property by public auction or by inviting
tenders.Thoughthatistheordinaryrule,itisnotaninvariablerule.Theremaybesituations
where there are compelling reasons necessitating a departure from the rule, but then the
reasons for the departure must be rational and should not be suggestiveofdiscrimination.
Appearanceofpublicjusticeisasimportantasdoingjustice.Nothingshouldbedonewhich
gives an appearance of bias or nepotism."
ItisforthisreasonthatthedoctrinenowhasaconstitutionalstatusandisreadintoArticles
21,48A,and51AoftheConstitutionofIndia.InNoidaEntrepreneursAssociationv.Noida
AIR2011SC2112,theSupremeCourthadobserved"T
hePublicTrustDoctrineisapartof
the law of the land.ThedoctrinehasgrownfromArticle21oftheConstitution.Inessence,
theaction/orderoftheStateorStateinstrumentalitywouldstandinvalidatedifitlacksbona
fides, as it would only be a case of colourable exercise of power. The Rule of Law is the
foundation of ademocraticsociety…PowervestedbytheStateinaPublicAuthorityshould
beviewedasatrustcoupledwithdutytobeexercisedinthelargerpublicandsocialinterest.
Power is to be exercisedstrictlyadheringtothestatutoryprovisionsandfact-situationofa
case.PublicAuthoritiescannotplayfastandloosewiththepowersvestedinthem.Adecision
takeninanarbitrarymannercontradictstheprincipleoflegitimateexpectation.AnAuthority
is under a legal obligation to exercisethepowerreasonablyandingoodfaithtoeffectuate
the purpose for which power stood conferred. In this context, in good faith means for
legitimate reasons. It must be exercised bona fide for the purpose and for none other."
Doctrine of Full Faith and Credit
The doctrine of full faith and credit applies to acts done by the officers of the State. Acts
performed by these officials are assumed to bedoneandperformedinfaithfuldischargeof
their duties. There is presumptive evidence of the regularity of such official acts.
Accordingly, the settled principle of law in this regard is that where the statute requires
certainthingstobedoneinaparticularwayandsubjecttotheframingofrules,andifaction
is taken without rules being framed first, then the mere non-framing of rules would not
invalidate such an action. This is subject to the conditionthatthestatuteitselfshouldhave
beenworkableandcouldhavebeengiveneffectwithouttheframingofrules.Thishasbeen
heldinJantiaHillTruckOwnersAssociationv.ShailangAreaCoalDealerandTruckOwner
Association(2009) 8 SCC 492).
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Conclusion
This chapter attempted to outline administrative bodies and their powers and functions. It
broadly considered the types of non-adjudicatory powers vested in and exercised by
administrativebodies,discussinginsomedetailthebroadnormsandlimitationsthatmustbe
borne in mind during the exercise of these powers.
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Administrative Tribunals
Introduction
Helloviewers,IamDr.VandanaSingh.Today,thetopicofmylectureisAdministrativeTribunals.
Tribunal meant a Roman official whoisunderthemonarchyandtherepublicwiththefunctionof
guardingtheplebeiancitizenfromarbitraryactionbythepatricianmagistrates.Itgenerallyimplies
thatthereisaninstitutionwhichhastheauthoritytodecideonmattersandsettleclaimsirrespective
of the fact that it has the word "tribunal" in its title.
The functions which are being allocated to tribunals are quasi-judicial. As any administrative
tribunalcanneitherbecalledajudicialbodynoranexecutivebody,thetribunalshavebothofthese
institutions’characteristics.Theyfallinbetweenthecourtandtheadministrativebody,andthereby
theirworkisknownasquasi-judicialinnature.Thetribunalshavebeenindemandinrecentyearsas
thedisputeshavegrownimmensely,butthedisposalrateofthecourthasnotbeeninthesameline
as the increasing case rate has been.
The interruption in justice administration is one of the principal disruptions which has been
undertaken with the formation of tribunals. As per H.W.R. Wade, "In the 20th century, social
legislation demanded tribunals only for executivefunctionssothatthesetribunalscanofferfaster,
cheaper,andalsomoreaccessiblejustice.Thesetribunalswereformulatedforsolvingsmallclaims.
Taxtribunalswere,infact,establishedasfarbackasthe18thcentury.”Thedelayinthejudgements
of cases which are related to civil matters is suggestively increasing arrears, and the courts seem
destitute inthismatter.Thenecessitiesofthemoderncollectiviststatewiththeaimofthecreation
of a socialist society are multipurpose.” There isaneedforcreatingsocialistsocietyandthestate
should adopt a policy which affects all individuals in every aspect.
The condition arose due to the pendency of suits in the courts, and due to this condition, the
tribunalswereformulated.Thesetribunalsweredomesticandotherkindsoftribunals,respectively.
Therewasaneedtohavevariousadjudicatingauthoritiesasthenumbersofsuitsinthecourtswere
increasing and this was causing delay in justice. These tribunals were established by different
statutes. There is a difference between a domestic tribunal and a tribunal in a statutory sense.
"Domestic tribunals" are those administrative agencies which have been established to manage
effectiveprofessionalconductandalsotoenforcedisciplineamongstthememberswhoareholding
adjudicatorypower.Onthecontrary,tribunalsarethequasi-judicialorganswhichhelptodecideon
matters which are specifically related, and they need to exercise thejurisdictionasperthestatute
under which they are constructed.
TheupsurgeinthenumberofConstitutionaltribunalssignifiestheincreaseinstateactivities.Since
therehavebeenlawsandthoselawshavegivenbenefitstoindividuals,andwiththosebenefits,the
life of the individual has come undertheumbrellaofstatecontrol.Thiseventuallyledtodisputes
betweenindividualsandthestate.Tribunalsarecheapascomparedtocourts,andtheircomposition
and functions are different from those courts.TheFranks’Report(1957)identifiedthebenefitsof
tribunalsovercourtsas"costeffectiveness,accessibility,freedomfromtechnicality,expedition,and
expert knowledge of their particular subject." The three major principles on which the tribunal
should be based are basically openness, fairness, and impartiality.
1.2. Tribunal System
1.2.1. Global Perspective
Tribunal System in France
Tribunal des Conflicts is a partoftheFrenchTribunalSystem.Thistribunalisalotdifferentthan
any otherkindoftribunal.Thistribunaladjudicatesonthedisputes.Thistribunalhasbothjudicial
and administrative functions. As France has a dual legal system, there are complex rules and
regulationsandthesetribunalsareproficientinthatandhandleallthemattersthataremultifaceted.
This tribunal solves disputes that are complex in nature and are also multifaceted. Nevertheless,
there are some acts that are excused from judicial review. Judicial review is time-barred in France.
Tribunal System in England
An enormousnumberoftribunalsaredealingwithvariousmattersinEngland,likesocialsecurity,
property rights, employment, immigration, and mental health. Usually, most of the tribunals are
relatedtotheviolationsoftherightsofcitizensbythestateonly.TheEmploymentTribunal,which
is situated in the United Kingdom, basically deals with the matters which arise between an
individual and the organisations.
1
Tribunal System in Canada
ThemosteffectivesystemofjusticedispensationbytribunalscanbeseeninCanada.Asthejudicial
systemandtribunalsaregivenequalimportancethereandthereby,theyareconsideredasoneofthe
important pillars of justice dispensation. Though tribunals formanimportantpartoftheCanadian
legalsystem,theyarenewlyframedconceptsandstillworkisgoingontoseehowtheycanbemore
effective.Thetribunalswereestablishedinthecountryforthetrade-relatedaspectsandthedisputes
related to commercial matters as the economy was expanding.
1.2.2. Tribunal System in India
India is a common law country and thereby the tribunals are enshrined with the basicpurposeof
justice dispensation and on this principle only the tribunals were formulated. In India, the first
tribunal was formulated in 1941. It was associated with income tax matters. It was knownasthe
Income Tax Appellate Tribunal. The tribunals were nevertheless established to cut the load of
courts,toquickendecisionsandtoprovideamediuminwhichthelawyerswillbethereandalsothe
people with special skills for those particular disputes will be part of the tribunals. The 42nd
Constitutional Amendment Act of 1976 brought about a huge alteration in the adjudication of
disputes in the country. This amendment brought change to the Constitution by adding Articles
323A and 323B to theConstitutionofIndia.Theadministrativetribunalswereformulatedandthe
matters to be adjudicated by them were specified in sub-clauses of the constitution.
Article323Aand323Bdifferfromeachotherinthecontextthatthepreviousgivesdistinctpowerto
theParliamentandthelattergivespowertotheauthorisedStateLegislature,whichisconcurrentin
nature.Thestatelegislatureandparliamentbothgetentitledtoformulatetribunalsforanyaspector
for any subjects that have been enlisted in List III of the Constitution i.e., the Concurrent List.
Article 323B throws a clear light on the abovementioned point, and this article makes this
distinction.
TheIndianeconomyandcommercegrewandthetradeexpanded,therebyastheseexpansionstook
placetherebecameanecessityofhavingpeoplewithspecialskillsandknowledgeaboutthesubject
forspeedierdispensationofjustice.Asthescenariochangedandthedemandfortheskillsincreased,
eventually there was a need for specialised skilled people to deal with the matters. The tribunals
2
provide a platform for the authorised skilled peopletoaddressthecompositeissuesinthepresent
scenario.
Administrative Reforms Commission (1966)
The Administrative Reforms Commission (ARC) was established to understand and explore the
possibility of formulating administrative tribunals in different spheres. It was established by the
Indian Government to examine the country's public administration system and make
recommendations for improvement.
Swaran Singh Committee Report (1976)
The warfare ideology gave a mushroom development to public servants and public services.
Eventually,theHighCourtswerefloodedwithservicecases.Thiscommitteehasrecommendedthe
formulationofadministrativetribunalsasthebasicelementofthejusticedispensationsystem.The
Supreme Court's scrutiny is important in relation to all the judicial pronouncements. The
recommendations of this committee also suggested that the tribunals' adjudication should also be
underthescrutinyoftheSupremeCourt.Thecommitteeproposedvarioussuggestions,andsomeof
the suggestions are as follows:
1. The central law and the state law both have the authority to formulate tribunals.
2. Thetribunalforlabourcourtappealscanalsobeformulated;andthattribunalcandecideon
the matters which are related to labour disputes. It may be called the All-India Labour
Appellate Tribunal.
3. Iftherearedisputeswhichareinrelationtorevenue,landreforms,ceilingofurbanproperty,
procurementanddistributionoffoodgrainsandotheressentialcommodities,theyshouldbe
adjudicated by the tribunals as this would serve the purpose of the formulation of tribunals.
1.3. Appointment, Qualifications, Tenure and Conditions of Services
The basic purpose of tribunals for whichtheywereestablishedistobasicallydischargetheduties
which are quasi-judicial in nature. A tribunal isnotacourt,buttheyhavebeenentrustedwiththe
responsibility to act judicially. The special characteristic that is added to tribunalsisthattheyare
givenjudicialfunctions.Therefore,fortheperfectfunctioningoftribunals,theirmembersshouldbe
3
peoplewhohaveworkedinthejudiciary.Thiswillleadtothewell-organisedandeffectiveworking
of tribunals.
Uniformity in the Appointment System
The judicial system should be independent for the effective working of the system andalsofora
healthy democracy. The rule of law should be the guiding principle and it can be achieved only
whenthejudiciaryisfreefromanyexternalpressure.Thisconceptof‘independentjudiciary’comes
fromthedoctrineofseparationofpowers,whichcanbeconsideredthespiritofahealthydemocracy
and is also an inseparable part of the basic structure of the Constitution.
Qualifications and Appointment
ThequalificationsforappointmenthavebeengivenunderSection6oftheAdministrativeTribunals
Act,1985.Section6oftheActprovidesthatapersonshallnotbeeligibletobeaChairmanunless
heisorhasbeen,ajudicialofficerofaHighCourt.ConsultationwiththeChiefJusticeofIndiaby
thePresidentistheprimeconditionfortheappointmentofthechairmanandmembersoftheCentral
Administrative Tribunals. One of theconstitutionalrequirementstobeamemberofthetribunalis
that a person who is qualified in law and hasjudicialtrainingandalsoholdsadequateexperience
can be appointed as a member of the tribunal. The tribunal's basic function is to deal with
adjudicating cases concerning any question which is legal questions and nuances of law, thereby
sticking to the principles of natural justice. This will definitely increase public confidence in the
workingofthetribunals.TheJudicialMembershouldbeapersonhavingadegreeinlawandalso
havingajudiciallyproficientmindandshallhaveanunderstandingofperformingjudicialfunctions.
The guidelines for appointment can be as follows, and this may help in attaining the aim of
uniformity in the tribunal system:
1. AnypersonwhohasbeenajudgeintheSupremeCourtorhasbeenChiefJusticeintheHigh
Courts can be appointed as the Chairman of theTribunal.Thiswillhelpinthedisposalof
cases as the judge will be aware of the legal nuisances with specific reference to the
procedures to be followed.
2. Any person who has been a judge intheHighCourtcanbetakenasvicechairmanofany
tribunal.
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3. AnymemberofthetribunalcanbeappointedonlyifhehasbeenajudgeintheHighCourt
or any advocate who is eligible to be appointed as a judge in the High Courts.
Reappointment
Reappointment is a very important element when it comes to the fairness and working of any
institution.Thequestionofreappointmentisoneofthenoteworthyfeatureshavingadirectbearing
on the independence and fairness in the working of the institution.
Vacancy
There should not be any delay whileappointingthemembers.Thus,theprocessshouldstartfrom
the very early itself. This gives a window for thetimelyappointmentofmembers.Ifanydelayis
caused,thatmaycauseadelayinjusticeaswell.Iftheprocessisdelayed,thatleadstoavacancyin
theofficeandfurtherdelaysinthefunctioningofthetribunalsanddisposalofthematters.Thereby,
the delay in appointment should not be done.
Tenure and Service Conditions
The uniform age ofretirementisnotfixedforthemembersoftribunals,andtherebythiscreatesa
discrepancy.Forasmoothsystem,thereshouldbeuniformityinageandalsoinserviceconditions
forallthemembersofthetribunal.TheChairmanofthetribunalshallholdofficetilltheageof70
years or three years, whichever is earlier. The rule is different for the Vice Chairman. Asperthe
rule,theViceChairmanshallholdofficeforaperiodofthreeyearsortilltheyattaintheageof67
years,whicheverisearlier.TheVice-Chairmanandmembersshallholdofficeforaperiodofthree
yearsortilltheyattaintheageofsixty-sevenyears,whicheverisearlier.Iftheuniformityinservice
conditionsofthechairman,vicechairman,andalsoothermembersoftribunalscanbeachieved,that
wouldbeanidealcondition,andthiswouldenablesmoothworkingoftheentireorganisation.This
age and service conditions are one of the major factors for effective working of the tribunals.
1.4. Judicial Review: Constitutional Power
JudicialreviewisconstitutedasthebasicfeatureoftheConstitution,anditiswellestablishedthatif
theelementswhichconstitutebasicfeaturesarealtered,thentheywillalterthebasicfeatureofthe
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Constitution as well, and thereby the change or alteration of basic elements is not allowed and
non-justifiable.TheConstitutionhasassignedthejudiciarythewatchingguardianbyconferringon
it the power of judicial review. Thus, by conferring this power, the Constitution has made the
judiciary accountable to check on the legality of the statutes made by the legislature. Hence, the
relationship between judicial control and the tribunal is very clear from the Constitution itself.
1.5. Appeals from Tribunals
Thetribunalsweresetuptoaccomplishasocialgoal,andthatwastodeliverjusticetothemasses
withthehelpofadministrativebodies.Thiskindofjusticewasknownascollectivejustice,andthe
principlesthatitadheredtowereadministrativeprinciples.Thelawcommissioninits162ndreport
hasclearlymentionedthatthereexistsaneedforbalancingtheinterestsofindividualsandthoseof
thestateandthattheyshouldbebroughtintoharmony.TheCourtcanonlyaffectthejurisdictionof
anytribunaltothelevelitispermittedbythe"administrativelawprinciples"andnotbeyondthat,as
the main aim of administrative law is to protect the individual from misuse of power by the state.
1.6. Bypassing Jurisdiction of High Courts
Access to justice isthebasicrightthatshouldbegrantedtoanyindividual.Thecontentionlieson
thepointthatifthejurisdictionofthehighcourtisevaded.Doesthatviolatetheaccesstojusticeof
any individual, thereby infringing the fundamental right of anyone? Federalism is also oneofthe
basic features of the Constitution and theframersoftheConstitutionalsobelievedinthefactthat
theprinciplesoffederalismshallalsobetakeninjudiciaryandthusthehierarchyinjudiciaryshall
be formulated keeping in mind those principles. The Supreme Court is the Apex Court of the
CountryandtheHighCourtsaretheHighestCourtsintheState.Theconstitution,inastrictsense,
makes the High Courts secondary to the supreme courts.
The administrative tribunals are one of the important elements in any legal system, and it is
important to have these structures as they reduce the burden of any court and thereby guarantee
speedy justice. Speedy justice is the key elementforanystate.Thisalsogivesaccesstojusticeto
various people and thereby protects theirrights.TheTribunalswereintroducedintheIndianlegal
framework byConstitutionalamendmentandsincethentheyhavebeenapartofthesystem.They
have reduced the burden of the judiciary, but the basic point of uniform age and the service
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conditions is debatable, and also how the members are being appointed needs a bit more
clarification. This tribunalsystemiswelldevelopedinsomecountries,andinsomecountries,itis
still in the development stage.Thisalternativemethodofdisputeresolutionisveryimportantasit
gives any individual a right to access to justice, which is a part of Article 14 of the Indian
Constitution,whichinitselfisafundamentalright.Thetribunalshavingbenchesinseveralpartsof
the country give the geographical benefitofhavingaccesstojustice.Theworkingofthetribunals
shouldbeunderstoodandthecasesshouldbeadjudicatedbythetribunalsfortheprimepurposefor
whichtheywereestablished:tolowertheburdenofthejudiciary.Thereby,thecasesdisposedofby
the tribunals should be taken into consideration and should not be demeaned. The speedier
dispensation of justice is the key to the whole concept of administrative tribunals. The speedier
dispensation of justice is the key to the whole concept of administrative tribunals.
Conclusion
During the course of time, the administrative tribunals have assumed great significance in the
context of imparting effectual justice, lowering the burden of the judicial courts and providing
expertise, especially in technical matters. If regulated properly, the tribunals have the potentialto
offersubstantiallycosteffective,faster,andmoreeffectivesolutionsfordisputeredressalasopposed
to the sluggish and costlier approach of thetraditionalcourts.InacountrylikeIndia,whichhasa
vast territory and an extremely high population density, the need to establish tribunals is almost
indispensable.Theabsenceofatribunalsysteminsuchacountrywouldserveasanopeninvitation
to unresolved disputes and would consequently wreak mayhem. Therefore, for the smooth
functioning of the nation, administrative tribunals are crucial.
7
Judicial Control - Liabilities and Accountabilities of State
Introduction
Hello viewers, I am Dr. Vandana Singh. Today the topic of my lecture is Judicial Control -
Liabilities and Accountabilities of theState.Inthecurrentscenario,thestateplaysamajorrolein
everyone’s life. Administrative law is evolving every day to meet the changing needs of thenew
political, social, and economic conditions.
This new concept of the rule of law basically deals with the executive organ of the stateandthe
actions of the executive. Administrative acts do not purely fall within either the executive or the
judicial branches of government. The key role of the concept is to keep a balance between the
organs.Alltheadministrativeagenciesshouldbecheckedandbalanced.Moreover,itshouldbekept
in mind that there should not be any arbitrariness amongst them for smooth functioning.
Administrative law becameveryessentialastherewerealotofcasesofviolationsoftherightsof
individualsbyadministrativeofficials.Thepowerusedbysuchofficialsandthestaffneededtobe
checked and thereby that led to the emergence of administrative law. The whole concept of
administrativeagenciesi.e.,theirfunctioning,theirpurpose,theircomposition,etc.,allcomeunder
the umbrella of administrative law.
Judicial review is an important part of this concept of administrative law. Emerging law has
immense power, and to check the power and question the validity of the administration, judicial
review plays a significant part. Judicial control is the most effective.
Administrative Actions under Administrative Law
Inthemid-20th century,administrativelawgainedimportanceandbecameadistinctbranchoflegal
discipline.Beforethat,itwasnotseparateinIndia.Tillthen,Stateinterferencewasminimalandit
wasnotsomuchapartofindividuallifeandthus,thechancesofconflictswereless.Presently,itis
not the same as before. The government, or the State, isinvolvedinallaspectsofanindividual’s
life. The State intervenesheavilyinthelivesofitscitizensintheinterestsofprotectingthepublic
and maintaining law and order.
Administrative actions are those actions which are governed by administrative law. The
administrativepowerhelpstodecidevariousinstancesinadministrativelawandithastoadhereto
principles of natural justice.
Judicial Review: A Tool to Regulate Administrative Actions
Judicial review is a prerequisite for building a civilization that is modern and progressive. This
power of judicial review is being granted to the Supreme Court and the High Courts in India.
Judicial review implies the power of the Courttoreviewtheworkingofthevariousorgansofthe
Stateandalso,iftheCourtsfindanythingwhichisnonjustifiableorunfit,thentheymaystrapthat
part. Judicial review refers to the Court's authority to examine the acts of other branches of
government, specifically the power to declare undesirable legislative and executive actions as
"unconstitutional." Broadly, judicial review in India deals with:
● Judicially Reviewing the Legislative Actions
● Judicially Reviewing the Administrative Actions
● Judicially Reviewing the Judicial Actions
This article studies the second aspect, which stresses the fact that judicial review ensures
legitimacy and justiciability of administrative acts.
Grounds of Judicial Review
Thewholeofadministrativelawisdependentonthedoctrine-ultra-viresasthebasicstructureof
administrative law. This doctrine of "ultra-vires" is seen as a critical component of judicial
reviewinordertokeeptheadministrationincheck.Theterm"ultra-vires"referstoactsthatare
carriedoutinanexcessiveorextrememannerorbeyondthepermitteddomainoftheperforming
party.
Usually, judicial review can be conducted on the following grounds:
1. Jurisdictional Error
2. Impropriety in Procedure
3. Irrationality
4. Proportionality
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5. Legitimate Expectation
1.1.Jurisdictional Error
Theterm"jurisdiction"referstotheabilitytomakedecisions.Therecanbealackofjurisdiction,an
excessofjurisdiction,orevenanabuseofjurisdiction.TheseformulateagroundforCourtstoreject
any administrative actions, and it depends on the Court which ground it chooses as per the
circumstances.
Any tribunal or administrative authority is said to have acted in "lack of jurisdiction" when it
exercisedapoweritdidnothaveandissuedanorderitwasnotauthorisedasperthelawtoissue.
The power to review such orders may be exercised on the following grounds:
1. If the law or statute that establishes the administrative authority is unlawful or
unconstitutional, the order can be declared invalid or unconstitutional as well.
2. The administrative agencyhasnotbeencreatedinaccordancewiththelaworisinconflict
with the law.
3. That the authority erroneously determined a jurisdictional fact and, as a result, claimed
jurisdiction that did not previously belong to it.
Excess of Jurisdiction
"Excessofjurisdiction"impliesthatintheearlierphasetheauthorityhadjurisdictiontodecide,but
whiledoingsotheauthorityexceededtheirlimitsofjurisdictionandthustheactionsbecameillegal.
The following conditions can be considered an example of an excess of jurisdiction.
1. Despitetheoccurrenceofaneventthathasoverthrownitsauthority,theadministrativebody
continues to exercise its jurisdiction.
2. When theauthoritystartsdecidingonmatterswhichareoutsideofitspurvieworonwhich
the authority expressly does not have jurisdiction.
The precondition is that all administrative powers shall be used fairly. If the powersarenotused
fairly or if they are abused, then eventually the conditions forjudicialreviewrise.This"abuseof
power" can be said to have arisen under these circumstances:
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1. Improper purpose:Sometimestheauthoritymayuseitspowerforapurposewhichisother
than the purpose specified.
2. Error apparent on the face of the record: Whenever thereisanyerrorontheapparentside
only, that means on the face of the record only and that particular evidence is being analysed.
3. Inbadfaith:Whereanexecutiveauthorityhasactedfraudulentlybystatingtohaveactedfor
an exact motive when in truth the decision was taken with some extra motive in cognizance.
4. Fettering discretion: when theadministrativeauthorityacceptsapolicywhileexercisingits
powers, which implies that it is not actually exercising its discretion at all.
5. Non-consideration of relevant material: When a related matter is overlooked by the
decision-making authority
2.1.2. Irrationality (Wednesbury Test)
Asperthewell-establishedprinciple,ifanydiscretionarypowerisbeinggiventoanyadministrative
authority,thatpowershouldbeusedverycautiouslyandreasonably.Anypronouncementsgivenby
administrative authority can be considered illogical and irrational if theyaregivenagainstmorals
and logic. The decisions made by the authority shall not be such which show thatthereasonable
person has not used his mind while adjudicating for the same.
This ground of 'irrationality’ was recognised in the Associated Provincial Picture House Ltd. v.
Wednesbury Corporation (1947) case,whichlateronbecameknownasthe"WednesburyTest".In
the present case, the Court came to the conclusion that if there is the presence of these three
conditions, then the Court can intervene:
1. Fordecidinganycase,ifthedefendanttookintoconsiderationanygroundwhichshouldnot
have been taken into consideration, that became a ground for the Court’s intervention.
2. The defendant failed to consider the factors that should have been considered.
3. Thedecisiongivenbytheauthoritywassoabsurdthatnoprudentpersonorauthoritywould
ever consider enforcing it.
TheCourtstatedinitsjudgementthatitwouldnotbeallowedtointervenetochangethedefendant's
decision just because it did not agree with it.
2.1.3. Procedural Impropriety
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Proceduralimproprietyreferstotwoconcerns:failingtounderstandtherulesofthelawandfailing
to follow the basic common-law rule of justice. It is regarded as a failure to follow the standard
established procedures.
2.1.4. Proportionality
Proportionalitysuggeststhatlinkedadministrativeactsshouldnotbemorepowerfulthantheyneed
tobe.ThisprincipleofproportionalitynecessitatesthattheCourtsweightheplusesandminusesof
the action in question. It is important to remember that no action can be permitted unless it is
beneficial or in the public interest.
This doctrinehasbeenfollowedbyIndianCourtsforalongtime,butitwasonlyaftertheHuman
Rights Act of 1998 that it was adopted by English Courts. The Court will not employ such
discretionarypowersifthereisnoreasonablerelationshipbetweenthegoaltobeaccomplishedand
the methods to achieve it. According to the proportionality test, an administrative action must be
overturned if it is disproportionate to the mischief it seeks to prevent.
InHindConstructionCo.v.Workmen(1965),someemployeestookthedayoffandstayedawayfor
the rest of the week.Theywerelaterdischargedfromtheservice.TheCourtstatedthatinsteadof
firing the workers permanently, they should have been warned first and then fined, in case of
continuanceinmisdemeanour.Noreasonablepersoncouldhavepredictedthatthecompanywould
punish those employees in such a severe manner.
2.1.5. Legitimate Expectation
Thedoctrineoflegitimateexpectationcomesintopicturewhenanypublicauthoritywithdrawsfrom
any depiction made of any person or the public at large. This kind ofexpectationarisesfromthe
complainant's belief, expressed or implied, that certain precise procedures will be followed in
obtainingaspecificconclusion.Thisexpectationhasareasonablefoundation.Thisdoctrineallows
those who havebeenmistreatedbyaninfringementoftheirlegitimateexpectationstobeprovided
relief.
Two contemplations have to be kept in mind while determining legislative expectations:
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1. Where an individualoragrouphasbeenledtoassumemaybebyexpresswordsorbythe
actions that a certain procedure will be followed or adhered to.
2. Anindividualoragroupdependsonanyparticulargovernmentregulationorpolicythathas
been followed earlier in that area.
2.2. Judicial Remedies through Writs
2.2.1. Habeas Corpus
ThiswritisissuedasaCourtordertosummonorcalluponapersonwhoissuspectedofdetaining
anotherperson.ItisalsoissuedtopresentthepersondetainedinfrontofaCourtoflaw.IftheCourt
determines that the detainee has been unlawfully detained, the Court will order the detainee's
immediate release. The ultimate goal of this sort of writ is to free the detainee from unjust
imprisonment and not really to penalise the detainer.
2.2.2. Mandamus
The word “mandamus” denotes “to order the public authority” to carry outthetaskthathasbeen
assigned to it. The government, subordinateCourts,tribunals,companies,authorities,oranyother
individualmaybeorderedbyHigherCourts,whichincludetheSupremeCourtandHighCourts,to
perform or refrain from doing any conduct that is prohibited. The purpose of this writ is to
incentivizetheaccomplishmentofpublictaskswhilesimultaneouslymaintainingoversightoverthe
administration's operations.
2.2.3. Quo Warranto
Theterm"quowarranto"referstotheauthorizationbehindsomething.Apersonwhoholdsapublic
officecanbeservedwiththistypeofwrit.TheCourtrequirestheindividualinquestiontoshowby
whatauthorityheoccupiesthatposition.Byjudicialorder,theunlawfulorillegalincumbentofthat
position would be removed, and the rightful holder would be awarded claim to it.
2.2.4. Prohibition
This writ is issued by a Higher Court to a Lower Court, tribunal, or organisation that performs
judicialorquasi-judicialactivitiesinordertopreventthemfromexceedingtheirauthority.Thiswrit
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bans the Lower Courts from taking any action that they have not already taken. Because it is
founded on the principle that "prevention is better than cure." It means that acts should be
scrutinised even before they have had any repercussions.
2.2.5. Certiorari
The superior Courts canissueawritofcertioraritothesubordinateCourttofixajurisdictionalor
legal error that the latter might have made. This writ is issued against any action which may be
either judicial or quasi-judicial in nature. By virtueofthesewrits,suchactionscanbequashed.If
theorderpassedbythelowerCourtsisillegal,thentheSuperiorCourtshavetheauthoritytoquash
or demolish it. The grounds for the issuance of this writ are:
I. When the authority has been in excess or has failed to exercise the jurisdiction, it has been
entrusted to.
II. If there have been violations of the principles of natural justice.
III. If the authority has failed to remedy a mistake/error that seemed apparent on the face of the
record, this writ can also be issued.
2.3. Judicial Review in India
Theevolutionofadministrativelawresultedinamassiveincreaseintheauthorityofadministrative
authorities. "Absolute power corrupts completely," and with great authority comes tremendous
responsibility. As a result, it is necessary to monitor the administrative operations of government
agencies,andthemostwell-organisedmethodisjudicialsupervisionandcontrol,whichisfarmore
successful than executivecontrol.Appellateandadministrativereviewarenotthesameasjudicial
review. The fact that orders of subordinate authorities are susceptible to appeal to superior
authoritiesisalegalcreation,butthereisnorighttoappealifthereisnoexpressstatutoryprovision
defining such a right.
InacountrylikeIndia,thejudiciaryisaccordedgreatimportance,andthehigherCourts,suchasthe
High Court and the Supreme Court, have the authority of judicial review.Administrativelawhas
evolved over time to give administrative powers for the smooth functioning of administrative
authorities and administrative officers have been assigned powers for thesmoothoperationofthe
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State, but if any of these administrative functionaries arecorruptandmisusetheirdiscretion,then
judicialsupervisioncanbeusedtoevaluatetheiractions.Administrativeactsmustbeinthepublic
interest, and their actions must be equitable and fair.
In Keshavananda Bharti (1973), there was an emphasis laid upon the presence of the concept of
judicialreviewinIndia,andthiscase,ineffect,introducedtheconceptofjudicialreviewformallyin
thecountry.Lateron,inthecaseoftheStateofU.P.vs.JohriMal(2004),theSupremeCourtruled
that while using its judicial review power, the Court should be more concerned with the
decision-making process than with the merits of the decision.
Their modes of judicial control may be classified as follows:
1. Statutory
2. Constitutional
3. Ordinary or Equitable
2.3.1. Constitutional Judicial Control
OurConstitutionhasaplethoraofclauses.Itprotectssomerightsthatareavailabletothepublicat
large. These are known as the "fundamental rights. TheConstitutionalsoempowerstheCourtsto
investigate the administrative discretion of administrative authorities in order to safeguard these
fundamentalrightsandfreedomsofthepeopleinIndia.Thefollowingaresomeoptionsfordealing
with Constitutional remedies:
I. TheSupremeCourthastheabilitytoimposethefundamentalrightssetoutinPartIIIofthe
Indian Constitution, and this provision is considered its heart and soul. If any individual's
fundamental rights are violated, the Supreme Court has the ability to either provide directions or
issue any of the writs as enumerated above.
II. Under Art. 226 of the Indian Constitution, the High Court has concurrent power to
implementfundamentalrightsandanylegalright.Ifanadministrativeactioniscorruptinnatureand
infringesonanindividual'slegalrightsorisagainstthepublicwill,theHighCourtcanintervenein
the matter of administrative discretion by using the power enshrined under this Article.
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III. TheSupremeCourtisempoweredunderArt.136toscrutinisealladministrativeactionstaken
by the administrative authority in its quasi-judicial capacity through the Special Leave Petition.
IV. The Courts are empowered under Art. 300 to investigate tortuous acts committed by the
government against its servants.
2.3.2. Scope of Judicial Review of Administrative Actions and Decisions
Themanykindsofadministrativeactionmustberecognisedinordertocomprehendtheextentand
scopeofjudicialreview.Inthesamewaythatnoauthorityisabsolute,thepowerofjudicialreview
as exercised by the Courts is also not absolute, and there are limits put on this power ofjudicial
review.
Conclusion
I. TheideaofjudicialreviewisratherbroadinIndia.Thereareseveralprotectionsinplacefor
the administration, particularly with regard to their discretion. However, because administrative
agenciesaregrantedgreatauthorityandbecauseofthenotionofdelegatedlegislation,theissueof
judicial review is quite legitimate and substantial. The power of judicial review is also quite
essential and plays a significant part in the American Constitution.
II. In India, judicial review has improved as a result of various instances. One notion of
judicial review that has been established with clarity is with regard to the Finality Clause, which
statesthattheIndianConstitutionpermitsthePresidenttoexercisepowers,andthatifacontroversy
emerges,thePresident'sdecisionwillberegardedasfinal.Asaresult,judicialreviewisessentialto
give protection to both the general public and administrative officials.
III. Administrativelawisatitscorewhenitcomestojudicialscrutinyofadministrativeactions.It's
agreatapproachtoassessinganadministrativeauthority'scompetencyandalsocriticisinghowthey
function.ItisoneoftheprinciplesenshrinedintheConstitutionandistherebyregardedasthebasic
feature of the Indian Constitution. The key role of judicial review is to guard the interests of its
citizensfromtheexcessivepowersorillegalactionsoftheadministrativeauthorities.Thus,judicial
review is a vital part of anylegalsystem.Italsochecksandbalancesotherorgansandhelpstheir
peaceful survival.Thescopeandambitofjudicialreviewisveryvastandtherebythispowershall
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beusedbyCourtsinaverycautiouswaysothattheymaynotencroachuponanyotherstateorgan’s
independence.
9
Concept of Public Sector Undertakings
1. Introduction
Hello viewers, I am Dr. Prem Chand. Today the topic of my lecture is ‘Concept ofPublic
Sector Undertakings’. Public Sector Undertakings (PSUs), also known as Public Sector
Enterprises(PSEs),arethebackboneoftheIndianeconomy.ThesearealsoknownasPublic
SectorUtilityEnterprises.UnderthegovernanceoftheBritishera,PublicSectorInvestment
was limited to the Railways, Post and Telegraph, the Ordnance Factory and some other
sectors, which were departmentally managed. Theseinvestmentswereprioritisedasperthe
necessity of British rule. After 1947, these industries were under huge responsibility to
formulatetheinfrastructureforothersectorsoftheeconomyandprovideessentialgoodsand
services to the country. TherewereonlyfiveenterprisesinthePublicSectorinIndiainthe
year 1951. The first Prime Minister of India, Pt. Jawahar Lal Nehru, had decided that the
enterprises shall remain under State control or shall be State-owned. There is a separate
PublicUndertakingCommitteeundertheFinancialCommitteeoftheLokSabha(Parliament
of India).
2. Meaning of Public Sector Undertakings (PSUs)
PublicSectorUndertakingsarefinanced,controlledandownedbytheCentralGovernmentor
StateGovernment.Inthesekindsofenterprises,morethan50%ofthepaid-upcapitalisheld
bytheGovernmentofIndia.ThePSUshavebecomethevehicleforsustainablegrowthinthe
Indian economy.
3. Genesis and Evolution of Public Sector Undertakings (PSUs) in India
ThehistoryofPublicSectorUndertakings(PSUs)datesbacktotheyear1947,justafterthe
independence of the country. Initially, the Indian economy was not in good shape. Since
independence,thesignificanceofthepublicsectorhasbeenrecognized.Toensurethegrowth
of the publicsectorinIndia,twomodeswereadopted:(i)nationalisingexistingenterprises;
and (ii) starting new enterprises.
The Public Sector Undertakings (PSUs) can be divided into core sector industries and
consumer goods industries. OnlyTataSteelCo.wasfunctionalinthenameofacoresector
industry.Buttheproductsoftheseindustrieswerenotdistributedthroughoutthecountry,and
the market for these industries was only a localised one. These industries were operating
withinalocalisedradiusbecauseoftheuseofoldtechnologyandproductionlimitations.The
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pan-Indiaoperationstartedafterindependence.Theseindustriesdidnotstandinfrontofthe
industries in Europe,France,oranyotherdevelopedcountry.Itispertinenttomentionhere
that Public Sector Undertakings (PSUs) play a key role in breaking the vicious circle of
poverty in India.
Public Sector Undertakings (PSUs) were not competing acrosstheglobeandthesamewas
identified by the Government. P.C. Mahalanobis wasthefirstpersonwhoworkedonitand
gave the principle of ‘trickle-down effect’. Under this principle, the focus was on thecore
industry output, which ultimately had a positive impact on the consumer goods industries.
The PSUs were set up with a mandate to:
I. Ensure the availability of essential items in the market at a reasonable and stable
price.
II. Achieve higher economic growth
III. Produce goods and services for self-sufficiency
IV. Achieve a long-term balance in the economy
V. Redistribution of income and wealth for balanced development
VI. Ensure employment for all and create ample employment opportunities
The2ndFiveYearPlan(1956-1961)emphasisedthedevelopmentofcore-sectorindustryand
passed a resolution, the Industrial Policy Resolution, 1956. These industries gave a
responsibilitytothecoresectortoproducematerialsandgoodsforitssubordinateindustries
as well. This was the shining phase of Public Sector Undertakings (PSUs), when these
industries flourished and reached success in a very short time span. These moves by the
Government were a boost to the whole economy. At the same time, Public Sector
Undertakings (PSUs) were expected to play a leadingroleintheeconomicdevelopmentof
the country, preventing the concentration of economic power in a few hands and reducing
regional disparities for the common good.
A total of seventeen industries were reservedforthepublicsectorunderSchedule-Aofthe
Resolution of 1956. In this respect, State Governments alongwiththeCentralGovernment
made a considerable investment for setting up and functioning of Public Sector
Enterprises/Undertakings. In the initial phase, the Public Sector Undertakings (PSUs)were
confined to core and strategic industries such as irrigation projects (Damodar Valley
Corporation), Communication Infrastructure (Indian Telephone Industries), Fertilisers and
Chemicals (Fertilisers and Chemicals Travancore Limited), Heavy Industries (Bhilai Steel
Plant,BharatHeavyElectricals,HindustanMachineTools,OilandNaturalGasCommission,
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etc.).Incontinuation,in1955,theGovernmentstartednationalisingseveralbanks.Otherthan
the ScheduledAandBIndustries,anyprivateplayercouldenterandproducetheconsumer
goods.
Withthepassageoftime,therewasahugelossinPublicSectorUndertakings(PSUs)despite
thefinancialsupportgrantedbytheGovernment.Themainreasonwastheinexperienceand
mismanagement of the officers responsible. Due to heavy loss and increasing debt, many
publicenterpriseshavebeenshutdownorwrittenofffromtimetotimebytheGovernment.
One of the important points here to mention is that, till the 1970s, the GovernmentSector
Undertakingsplayedamajorroleinallkindsofproductsandservices,andtheprivatesector
did not get proper representation or space for its participation in production or
nation-building.
4. Kinds of Public Sector Undertakings (PSUs)
Public Sector Undertakings (PSUs)can be divided into three parts.
Departmental Undertakings
This is the oldest form of Public Sector Undertaking. It isapartoftheGovernmentandis
fully managed and controlled either by the Central Government or State Government. The
revenue generated from the Government undertakings is deposited with the revenue
department. The officers working in these sectors are known as Civil Servants. The
employees of departmental undertakings are recruited by the Central Government and
compensationisalsoprovidedaspertheCentralGovernmentRulesandRegulations.Afew
examples of Departmental Undertakings are Railway, Post and Telegraph and Defence.
Statutory Corporations
TheseCorporationsareestablishedunderaspecialstatuteeitherpassedbyParliamentorthe
State Legislature. All the powers, responsibilities, and rights in relation to the Statutory
CorporationsareasgivenundertheStatutepassedbytheLegislature.TheseCorporationsare
both managed and controlled by the Board of Directors nominated by the Government.
Examples of Statutory Corporations include Life Corporation of India, Reserve Bank of
India, Indian Airlines, etc.
Government Companies
3
When the Central or State Government is holding more than 51% share in a Company or
where Central and State Governments together purchase the sharesorholdmorethan51%
shareholding in any of the Undertakings, then such an undertaking is also known as a
GovernmentCompany.TheGovernmentCompaniesareregisteredundertheCompaniesAct,
2013. These Companies are managed by a Board of Directors nominated by the Government.
5. Key Sectors for Public Sector Undertakings (PSUs) Operations
According to the Public Enterprises Survey, 2019–20, the trending sectorsinPublicSector
Undertakings (PSUs) operate in four sectors, namely: (i) Agriculture; (ii) Mining; (iii)
Manufacturing; and (iv) Services. As per the market share of Public Sector Undertakings
(PSUs), there are a few key industries like(i)CoalandCrudeOilintheMiningSector(ii)
Steel, Petroleum (Refinery and Marketing), Fertilizer and Heavy Engineering in the
Manufacturing/Processing Sector (iii) Power generation in the Electricity Sector and (iv)
Telecommunication, Transport and Contract and Construction in the service sector.Abrief
discussion of key sectors is self-explanatory.
Coal Industry
The Coal Industry was nationalised in the early 1970s with the purpose to enhance the
investmentofpublicfundsforthepurposetoincreasegrowthinthecoalindustry.Theother
main objective of nationalisation was to reach the optimum utilisation of available coal
resources.
Oil and Natural Gas
Therewasasingle-handedpresenceoftheGovernmentofIndiainthecrudeoilandnatural
gas industry within the Public Sector Undertakings (PSUs). Under this domain, 13 Public
Sector Enterprises are covered. The licensing policy of 1999 invited public players in this
industry and has seen a significant change.
Power Generation
TheNationalElectricityPolicyhaschangedthepowersectorcompletelyandacceleratedits
growthandpowergeneration.Withthechangeoftime,othersourcesofenergylikebiomass,
solar wind, etc. have come forward in the power sector, but thermal power generation
continues to dominate the contribution to power and power generation in India.
4
Telecommunication
In the telecommunications sector, India has achieved unparalleled growth as per global
standards in the last decade and has become the second-largest market in the world. The
report of the Telecom Regulatory AuthorityofIndia(TRAI)showsthatthetotalsubscriber
baseiscurrently1187.90million.Asperthepressrelease,teledensityinIndiahasincreased
from 86.72 at the end of January 2021 to 87.26 at the end of February 2021. The main
stakeholders are BSNL, MTNL, BBNL, and RailTel Corp of India Ltd.
6. Reforms in Public Sector Undertakings (PSUs)
In the early 1990s, it was considered to revisit the Public Sector Undertakings. For this
purpose,theStatementonIndustrialPolicy,1991wasconstitutedtoreviewthepublicsector
in India. The Committee found in its report that many Public Enterprises have become a
burdentotheGovernmentratherthananasset.TheGovernmentofIndiaadoptedapolicyof
Liberalisation, Privatization and Globalisation (LPG) and reduced the public sector from
seventeen to six areas only,likeautomaticenergy,coal,mineraloil,andtransport.Manyof
the PublicSectorUndertakings(PSUs)weretransferredtotheprivatesector,suchasIndian
Petrochemicals Ltd. was sold toReliancePetrochemicalsLtd.)andModernFoodswassold
toHindustanUnileverCo.Inotherindustries,apolicyofdisinvestmentwasadopted.Inthis
process, the shares of the company were sold to the general public, but management and
controlstillremainedwiththeGovernment.Thereafter,everyeffortwasmadetoincreasethe
participationoftheprivatesectorinthepublicsectorformakingitprofitableandtoenableit
to compete with the Private Sector Companies worldwide.
7. What is the Role of Public Sector Undertakings (PSUs) in Indian Economy?
Initially, the activities of the Public Sector Enterprises were limited to the basic and key
industries of strategic importance. Due to the huge investment and risk involved in many
sectorswhereprivateindustriesorprivateplayershadnotsteppedin,theonlyoptionwasthe
publicsector,whichcouldbuildcapital-intensiveinfrastructuresuchaspower,transport,etc.
In the financial year 2019–20, the Gross Domestic Product (GDP) of Public Sector
Undertakings (PSUs) at the current price was estimated at 203.5 lakh crores. The private
sector did not have the capacity to invest in heavy infrastructural activities. This was the
turning point where the public sector steppedintoamagnificentrecord.Itshowsthatthese
sectors are playing a definite role in the Indian economy.
5
Some sectors, like coal and mining, are still with the Government with a larger share and
control. The sectors of steel and fertilisershaveplayedaleadingroleandcontributedmore
than80%andhavestillheldthesectorfortheoveralleconomicgrowth.Themainobjective,
or the primary objective, was to create employment opportunities in an independent India.
Investmentinthepublicsectorhasamultipliereffectontheothersectorsoftheeconomyas
well.From1960to1961,thetotalnumberofemploymentopportunitieswas1.82lakh,which
increased in 2019–20 by 143.73 lakh.
TheGovernmentwasawareofthepossibilityofprivatemonopoliesandtheconcentrationof
economic power in a few hands in independent India. Nationalisation ofmanysectorswas
thusconsideredasanantidoteforthispurpose.Intoday’seconomy,PublicSectorEnterprises
arecommandingheightsinproducingessentialconsumergoods.Inthisway,theGovernment
has curbed the concentration of economic power in a few hands and has also created a
controlling force against the growth of larger industrial houses.
After independence, India was struggling to cut imports and make India a self-reliant
economy. For this purpose, Public Sector Enterprises contributed substantially to the
country’s export earnings. The investment in the public sector built up a reputation
throughout the third world economy andbecameasupplierofplants,machinery,tools,and
heavy industrial equipment. At the same time, India started providingconsultancyservices
and technical know-how. In a true sense, Public Sector Undertakings (PUSs) have given a
path for many sectors and strengthened the economic structure of the country.
8. Problems or Issues Associated with Public Sector Undertakings
I. LowProfit:ThesecompaniesareknownasLoss-MakingCompanies.SteelAuthority
of India Limited (SAIL) also entered this list in the year 2016.
II. Costly Affair: In many cases, theactualcostoftheprojectexceedstheoriginalcost
due to mismanagement and bureaucratic hurdles. The Government appoints the
managementofthePublicSectorUndertakings(PSUs)and,inmanyinstances,ithas
beenseenthatthepersonsappointedarenotexpertsintheareainwhichthecompany
is working. So, this creates a hurdle to take proper decisions at the proper time.
III. PoliticalInterference:Duetoexcessivepoliticalinterference,thesecompaniesarenot
able to perform at an optimal pace.
IV. TimeTakenforCompletionofProject:PublicSectorUndertakings(PSUs)aretaking
moretimeinproductionascomparedtoPrivateCompanies.Theinefficiencylevelin
these companies is very high.
6
V. Lack of Research and Development: It is well known to everyone that the Public
Sector Undertakings (PSUs) are lagging behind the Private Companies in research
and development, which leads to low value addition in the product.
VI. LackofSkilledHumanPower:LackofskilledhumanresourcesinthePublicSector
Enterprisesisalsooneoftheimportantissuesduetowhichproductionandefficiency
havedecreased.Manyatime,ithasbeenseenthatthepersonemployedinthePublic
Sector Undertakings (PSUs) is from some reference and not from open exams or
competitions.
VII. Public Sector Enterprises are not able to utilise resources to their full potential.
VIII. Lack ofManagementandPlanninginPublicSectorUndertakings(PSUs)iscreating
many issues and challenges.
9. Way Forward
In the year 2013, an idea was floated to create a Central Holding Company Ltd. (CHLC),
where all the Public Sector Undertakings (PSUs) would be the shareholders and it would
becomeacentralpointtoshareideas.Suppose,ifashareholderhasacompanythathasfaced
some problem and,subsequently,comesupwithaconcretesolution,thenthesamesolution
can be shared with the othershareholderstoavoidthesamekindofissuesandproblemsin
other Public Sector Undertakings (PSUs). By adopting this idea, the process of
problem-solving will be expedited, and political or governmental interference can also be
checked.
PrivatisationofthePublicSectorUndertakings(PSUs)canalsobeoneofthesolutions.The
government needs to enhance the skills of Public Sector Undertakings (PSUs), which will
boost growth and production. Public Sector Undertakings (PSUs) need to be free from
political interference. It is also suggested that persons should be from the expert field.
Research and Development activities in the Public Sector Undertakings (PSUs) need to be
promotedforbetterproductionandcompetition.Simultaneously,bureaucratichurdlesneedto
beresolvedthroughonewindowclearanceandeveryprocessshouldbedigitalizedandmade
transparentsince,duetobureaucracy,themovementoffilesgetsslow.Digitaltechnologycan
be used for maintaining transparency and efficiency of the Public Sector Undertakings
(PSUs). Thegovernmentshouldgivepolicythrusttoloss-makingPublicSectorUndertakings
(PSUs). Strategic disinvestment in the Public Sector Undertakings (PSUs) needs to be
consideredfortheirgrowthanddevelopment.Thiswillincreasetheflowoffundsandcanbe
7
utilised to increase theinvestment.Allpossibleeffortsshouldbemadefortheutilisationof
potential to the maximum.
10.Conclusion
Public SectorUndertakings(PSUs)playapivotalroleintheIndianeconomyandeconomic
growth.ThecontributionofPublicSectorUndertakings(PSUs)totheGDPisover22%.This
sectoralsocontributesaround8%totheemploymentgenerationintheorganisedsector.The
existence of Public Sector Undertakings (PSUs) in consumer commodities and products
maintains the stability of prices in the market. They also serve the critical objective of
social-economic stability. The public sector has provided the remarkable much-required
thrusttosetupastronganddiversifiedindustrialbaseinthecountry.Atthesametime,there
are many issues andconcerns,includingcorruption,lackofresearchanddevelopment,lack
ofpoliticalwillandpoliticalinterference,whichhampertheoutputofthepublicsector.This
sector is the backbone of the Indian economy and, therefore, it is required to maintainthe
nitty-grittyofthissector.Theprivateplayersexploitthelabourandresourcesfortheirbenefit
without considering the requirements of the nation.
Here, I endmylectureonthePublicSectorUndertakings(PSUs).Inthenextlecture,Iwill
talk about the regulatory framework in relation to Public Sector Undertakings (PSUs) in
India. Till then, good-bye. Thank you very much.
8
Public Sector Undertaking - Regulatory Framework in India
1. Introduction
Hello viewers, I am Dr. Prem Chand. Today the topic of my lecture is ‘Public Sector
Undertaking-Regulatory Framework in India’. In the module on ‘The Concept of Public
Sector Undertakings’, we have discussed its kinds, importance, and lacunae. It has been
identified that the Public Sector Undertakings (hereinafter called PSUs) are managed and
controlledthroughfinanceandmanagementbytheGovernment.So,aregulatoryframework
has also been provided to regulate the PSUs. Regulation refers to "the duty or function of
watchingorguardingforthesakeofproperdirectionorcontrol".So,regulationsarerequired
to control and manage the affairs of any enterprise in the proper direction.
In India, all industrieshaveobservedahighdegreeofregulationthroughouttheyears.Two
main theories are taken into consideration for economic regulation, i.e., ‘Public Interest
Theory’and‘CaptureTheory’.ThePublicInterestTheoryisinfavourofthefreeexerciseof
marketforcesandconsumers.Thistheoryfocusesonthemaximisationofsocietalwell-being
andisinfavourofremovingalltheobstaclestomarketforces.TheCaptureTheoryhasbeen
favoured by many professionals and academicians. This theory favours regulations in
response to the interests of the entrepreneur and demand-supply chain. So, inthisway,we
can see that regulations are used as a "tool which can be manipulated by differentinterest
groups for their advantage and use their bargaining power with regulatory machinery."
2. Need of the Regulations
Regulations are commonly understood to control private behaviour in desired directions.
Therearenumerousreasonsforimplementingtheregulations;afewimportantonesinclude:
toavoidfailuresinthemarket;toregulaterestrictiveoranti-competitivepractices;andmost
importantly, the protection of public interests.
It has been observed that the market has failed in allocating the resources to achieve
maximum social welfare. The market has failed due tonaturalmonopoliesandasymmetric
information.Naturalmonopoliescomeintoexistencewhentheentiremarketismanagedand
controlledbyonefirmwithoutanycompetitor.Itispertinenttomentionherethatduetothe
high profits involved, it is mandatory togovernthenaturalmonopolysectorstoprotectthe
1
consumers. The best examples can be the railways and electricity supply before the LPG
policy.Thewaterdistributionsectorisstillanaturalmonopolyofthegovernment.Thiskind
ofmonopolyinthemarketmayhampertheefficientallocationofresources.So,itisrelevant
to frame some regulations for these sectors where asymmetries of information exist.
Anti-competitivepracticesarewellknowninthemarket.Examplescanbeprice-fixing,abuse
ofdominantormonetarypower,ormarketsharing.So,intheseareas,itisnecessarytoframe
laws and to empower the officestotakeappropriateactiontodetertheabuseofthemarket
and to ensure fair competition. These regulations should be transparent, consistent, and
non-discriminatory. If anti-competitive practices are not stopped in a particular sector, this
may hamper the aim of achieving socially optimal outcomes.
The most important justification behind the regulationistopromotethepublicinterestina
way to ensure that access to the resources should be based on non-discrimination so that
affirmative action can be promoted. These grounds are enough for implementing the
regulations in some major sectors. The supply of water to every household is the
responsibility of the Government.
3. Classification of Regulations
After independence, theGovernmenthasbeenthetopcontrollerofalltheimportantsectors
anditadopteda‘socialistmixedeconomy’.Thedoorswereclosedfortheprivatesectorsin
the areas which were of strategic and/or national importance. Private sectors are also
governedunderstrictregulatoryframeworks.Thisphasewasknownas"LicenceRaj’,where
the government controlled these sectors through a licence or quota system. The Indian
economyadopteddomesticreformsduring1985,withdrasticchangesrelatingtotheissuance
oflicencesandtheabolitionofquotasontheoutputsofprivatesectors.Itwasfromtheyear
1991 onwards when the liberalisation started, andalmostallthesectorswereopenedtothe
private sector, and the process of foreign investment was simplified. With the process of
liberalisation, drastic changes had come up and with a consensus, independent regulatory
bodies were established, e.g., Telecom Regulatory Authority of India (TRAI), the Central
Electricity Regulatory Commission (CERC) and many more.
2
Regulations in India can be broadly classified into three main categories- i) Economic
Regulations ii)RegulationsforAchievingPublicInterestandiii)RegulationsRelatedtothe
Environment.
"When the distribution of goods and services is found inefficient, which leads to alackof
balance of powers in a free market, resulting in market failure, then market failure can be
causedbyalackofinformation,marketcontrol,publicgoods,andexternalities.Regulations
of economic activities are often justified as a policy instrument to minimise the effects of
market failures." It has been seen that in the case of marketfailures,allgovernmentshave
takenmeasuresandhavecomeupwitheconomicregulationstodealwithit.Itispertinentto
note that market failure is avoided by taking stringent decisions, including by punishing
market-distorting behaviours. For the correction of marketfailure,thegovernmentcantake
special measures, such as the enactment of the Electricity Act, 2003, which was passed to
manage and control the tariff of electricity. There are many more such examples.
Regulations serve legitimate and important public purposes, including protecting workers’
rights,welfare,health,andsafety.Regulationsalsohelpwheretheindustryfailstomeetthe
standard of public importance. To setastandardofqualityandsafety,theBureauofIndian
Standardswasestablished.Thefactisthatsuchkindsofregulationshelptoenhancequality
and protect consumers. In India, there are several compulsory standards which have been
implemented and are presently in force, but the expected and desired results are far from
reach.
Theregulationsbecamemandatorytoprotectunwaryconsumers,unevenincomedistribution,
and the majority of Indian citizens were not able to payforeventheessentialservices.By
doing this, the government became the top regulator of the private sector. It has alsobeen
seen that the price fixation of production from the private sector is in the public interest.
The other part of the regulations which apply to industries is a different kind of
environmentalregulations.Theseregulationsareimposedforasafeandhealthyenvironment
for human beings. The concerns oftherealworldareaddressedbytakingmeasurementsto
protectfreshairandwater,forests,wildlife,soildegradation,etc.IntheIndianConstitution,
Chapter IV deals with the Directive Principles of State Policies. It provides that it is the
responsibilityoftheStatetoprotectandimprovetheenvironment.Forthis,theEnvironment
(Protection) Act, 1986 was enacted as an umbrella legislation. As per the Act, the term
3
‘environment’ includes "water, air, and land and the inter-relationship among and between
them." According to the Act of 1986, several clearances have to betakenbyindustriesfor
establishing new infrastructure.
4. Major Regulations
Based on economic and/or public interests, the following are the major regulations:
i. The Bureau of IndianStandardsAct,1986,wasenactedtosetthestandards(quality,safety,
etc.) of different kinds of products to protect consumers.
ii. To establish Companies in India, it is mandatory to comply with the provisions of the
Companies Act, 2013. It also regulates the formation, functioning, and winding up of
Companies. More or less, all the Companies are governed by this Act.
iii. The Competition Commission (CCI) of India was established under the Competition Act,
2002. The purposeoftheCommissionistoensureandgiveanenvironmentforhealthyand
faircompetitioninthemarketeconomyandtoprotectconsumers’interests.TheCommission
also prohibits the abuse of a dominant position by any enterprise through anti-competitive
business practices. At the same time, it also regulates mergers and acquisitions between
various business entities.
iv. For theprotectionoftheinterestsofunwaryconsumers,theConsumerProtectionAct,2019
wasenactedin2019(earlierin1986).Thebasicaimofthestatuteistoprovideasimplerand
quicker redressal of grievances and, again, safeguards from unfair trade practices.
v. The Factories Act, 1948 was enacted as an umbrella legislation to regulate the working
conditions in factories.
vi. The Foreign Exchange Management Act (FEMA), 1999, has been very important in
regulating and facilitating external trade and payments.
vii. All the business contracts from the inception till the end, e.g., formation, performanceand
enforceability of contracts are governed by the Indian Contract Act, 1872.
viii. The Trade Union Actof1926wasenactedtoregulateandfacilitatetheregistrationoftrade
unions. This Act also takes care of the rights, liabilities, and responsibilities of trade unions.
ix. TheIndustrialDisputesAct,1947,facilitatestheinvestigationandsettlementofallindustrial
disputes. These disputes can be between industrial employees and employers or vice-versa.
x. TheInformationTechnologyAct,2000(Amendedin2008),regulatesonlinetransactionsand
provides legal recognition, special security, and protection of the law.
xi. The Sale of Goods Act, 1930, was enacted to protect the interests of buyers and sellers.
4
xii. By regulating securities under the Securities Contracts (Regulation) Act, 1956, undesirable
transactions can be prevented. This is a special law to regulate the sale and purchase of
securities and shares.
xiii. TheTradeMarksAct,1999wasenactedtogivelegalprotectiontotrademarks.Itgivesbetter
protectionoftrademarksforgoodsandservices.Thisstatutealsoprotectsthefraudulentuse
of trademarks.
5. Business Regulations
The Indian economy progressed during the 1980s with liberalisation and globalisation, but
simultaneouslyregulatoryreformsweretakenintoconsideration.Abasicframeworkforthe
complete industrial policy of India was provided by the Statement of Industrial Policy of
1991. Particularareaswherereformswereadoptedaretrade,priceanddistributionsystems,
and indirect taxes with strict regulatory frameworks.
LicensesystemwasadoptedbytheIndiangovernmenttocontrolandmonitorallthestrategic
public sectors for achieving the goal of a self-reliant economy. India has accepted a
progressive liberal approach and, therefore, has reserved deregulation for certain selected
sectors only. Foreign Direct Investment (FDI) is attracted by the ease of doing business.
Later, the industrial policy reforms are done to facilitate the private sector. Railways have
been opened to the private sector, and many Public Sector Enterprises are going through
disinvestment.AirIndiaisthelatestexampleofthis.Buttherearestillmanyindustrieswhere
a licence is mandatory for production and running an industry of alcohol, cigarettes, and
tobacco products, industrial explosives, and hazardous chemicals. Small-scale industries
enjoy special concessions or exemptions under law. Theindustrieswhicharenon-polluting
need not take any licence from the Pollution Control Board (PCB). The industrialists,
however, need to take certain approvals from the Central Government before applying for
permissionssuchasbuildingplans,landuse,water,andelectricityconnections,etc.fromthe
relevant State Governments.
There are certain incentives and exemptions offered by the Governments for attracting
investment from the industry. The Chief Minister of Jharkhand announced the Jharkhand
Industrial and Investment Promotion Policy (JIIPP) 2021 and invited industrialists to the
same.Ontheotherhand,thesamekindsofpolicieshavebeenadoptedbyseveralStates.All
the states have their own industry promotion policies as per their requirements and resources.
5
6. Sectoral Regulations
This is a known fact that, because of many reasons, including specific technical
characteristics,anti-competitiveactions,ormarketfailures,thedevelopmentofmanysectors
cannot be left unregulated. So,itisimportanttohavesomeformofregulation.Regulations
provide an order of development and protect consumers from anti-competitive actions ina
particular sector. The 1991 policy of Liberalisation, Privatisation and Globalisation (LPG)
brought changes to the original structure of regulations in India.
It is pertinent to note that every sector has its own exclusive regulatory laws and policies.
TherearemanysectorswherePSUsconcentrateonproductiononly.But,forthepurposeofa
betterunderstandingoftheregulatoryframework,wehavechosenonlythreesectors:power,
telecom, and roads.
6.1 Regulation in Power Sector
Electricityisthemostimportantandcriticalinfrastructure,andIndiaisin3rdpositioninthe
productionofelectricityintheworldand2ndinitsconsumption.Thesubjectmatterhasbeen
placed in the concurrent list of the Indian Constitution, sinceboththeCentreandtheState
have the right to legislate the law. To regulate the activities related to the generation,
transmission, distribution, trading and use of electricity, Central Legislation being ‘The
ElectricityAct,2003’wasenacted.Underthestatute,theCentralElectricityAuthority(CEA)
has been established to regulate and administer the activities relating to electricity.
InconsultationwiththeCentralElectricityAuthority(CEA),basedonoptimumutilisationof
naturalresources,theCentralGovernmentpublishedtheNationalTariffPolicyandNational
ElectricityPolicy.TheNationalTariffPolicy,2016wasnotifiedbytheIndianGovernmentin
consultationwiththeStateGovernments.TheElectricity(RightsofConsumers)Rules,2020
were passed on December 31,2020,forprovidingsafeguardstotheinterestsofconsumers.
TheActof2003givesanoptiontoengageprivatecompaniestoengageinthedistributionof
electricity. The electricity distribution in the Union Territories was opened by the
GovernmentfortheprivatesectorfromMay2020.Thepurposeistoimprovetheoperational
and financial efficiency of the companies.
6.2 Regulation in Telecom Sector
6
Theentryoftheprivatesectorintothecoresectorsneedstoberegulated.Forthepurposeto
regulate the telecom services and monitoring the tariff fixation process, the Telecom
Regulatory Authority of India (TRAI) came into existence under the Telecom Regulatory
Authority of India Act, 1997. The objectives behind the creation of TRAI weretoprovide
world-class conditions and opportunities for the telecom sector to emerge as a global
information society and to protect the consumers and proper function of the market.
The main objective of TRAI is to provide a level playing field for a fair and transparent
policy environment for telecom service providers. From time to time, TRAI issues
regulations,rules,anddirectivestoprovideaconduciveenvironmentfortheevolutionofthe
Indian telecom sector. These directions arerelatedtotariffs,interconnection,andqualityof
service as well. TDSAT was established to adjudicate disputes related to the telecom sector.
6.3 Regulation in Road Sector
Road transport is a critical infrastructure for the economic development of a country. The
area of road regulation is done by the Ministry of Road Transport and Highways, Central
Government,byusinglegislationandpolicies.Indiahastheworld's2ndlargestroadnetwork
aftertheUnitedStatesofAmerica.Initially,in1956,theNationalHighwaysActwasenacted
to develop certain roads asnationalhighways.ThemainfocusoftheActistoacquireland
forroadconstructionanddevelopment.TheNationalHighwaysAuthorityofIndia(NHAI)is
themainregulatorforroadsinIndia.ThiswassetupundertheNationalHighwaysAuthority
of India Act, 1988. This authority is responsible for the development, maintenance, and
management ofthenationalhighways.Thereisanotherauthority,theNationalHighways&
Infrastructure Development Corporation Ltd. (NHIDCL), which was set up in2014forthe
purposeofconstructionofnewroads,upgradingtheexistingroadsandwideningtheroads.It
works for better connectivity near the international boundaries to promote regional
connectivity on a sustainable basis.
7. Conclusion
This module has argued that successful liberalisation and privatisation of theinfrastructure
sectors in Indiamustbeaccompaniedbymeaningfulregulatoryreforms.Thishasalsobeen
argued that liberalisation doesn’t mean a complete withdrawal of government regulations
from these industries. The 21st century has emerged with new definitions of regulatory
7
institutions and their roles in market forces, including safeguarding the public interest.
However, the economic regions such as India, while coming out of post Covid-19
consequences, need to relax the regulatory mechanism in order to achieve better results.
Here,IendmylectureontheregulatoryframeworkforPSUsinIndia.Thankyouverymuch
for the patience listening.
8
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