2022

1. What are the limits on the delegation of legislative Powers in India? Elucidate with the help of leading cases.
When the function of legislation is delegated to government bodies other than the legislature, the legislation created is
known as “Delegated Legislation.” This is also known as “subordinate legislation”. Salmond has classified the
legislation into two categories, i.e. Supreme legislation and subordinate/delegated legislation.

 Supreme law is legislation enacted by the state’s supreme power, the parliament. Law enacted by an authority
other than the Supreme Authority in the exercise of the power granted to it by the Supreme Authority is known
as subordinate/delegated legislation. Delegated legislation relies on the same superior or supreme authority for
its continuous existence and legitimacy.
 The “Parent Act” delegated law-making power to the executive and administrative authority, resulting in
delegated legislation. The Parent Act, sometimes known as the Primary Act, is a statute established by the
legislature that gives the executive-legislative power. “Subordinate Laws” or “Child Legislature” refers to the
executive’s rules, regulations, orders, by-laws, and other actions taken in the exercise of legislative power
bestowed by the legislature.
Constitutionality of Delegated legislation
Delegated legislation’s status and constitutionality in India can be shown in various cases. It is separated into two phases:
before independence (pre-independence) and after independence (also known as post-independence).
Pre-independence - The Privy Council has only authorised conditional legislation in Queen v. Burah (1878). In this
case, the privy council transferred the legislature’s power to the executive. The administration of a territory’s civil and
criminal justice might be entrusted to officials selected by the Lieutenant-Governor regularly.
In the case of King v. Banwari Lal Sharma, the Privy Council applied conditions that were legislative once more, as it
had in the matter of Queen v. Burah. The validity of the Governor-General of India’s Emergency Ordinance was
challenged in this case, among other things. It was contested because he attempted to usurp power from the Provincial
Government. He was establishing special criminal courts for specific types of offences, but only the Provincial
Government had the authority to settle any court. This is not delegated legislation, according to the judicial committee.
The Privy Council further stated that it is an example of an unusual legislative authority in which the local application
of State legislation is determined by the local administrative body when it is required.
Post-independence- The Indian Constitution does not take the same delegation of legislative powers as the influential
British Parliament. The extent to which delegation is permissible in India must be determined as a matter of construction
from the express provisions of the Indian Constitution. There is no such thing as an inexhaustible right of delegation
inherited in legislative power. The Supreme Court of India upheld the delegation of the power conferred to the executive
body by the legislative body in the Raj Narain Singh v. Chairman, Patna Administration Committee Air (1954) case.
This case empowered the local government to extend any provisions of the act (Bengal Municipality Act).
Nothing in the Indian constitution expressly prohibits the legislature’s power to delegate. But there are two constitutional
limitations on legislative delegation, which were laid down in the case named Re Delhi Laws Act (1951) :
1. Legislature cannot delegate its essential legislative functions.
2. The power conferred on a subordinate authority or executive body should not suffer from excessive delegation.
Control over delegated legislation can be of various kinds, e.g., judicial, legislative and of other types; the latter may
include participation of the affected interests in the rule-making process, its due publication, etc.
1. Control of the legislature over delegated legislation:
In a parliamentary democracy it is the function of the legislature to legislate. If it seeks to delegate its legislative power
to the executive because of some reasons, it is not only the right of the Legislature, but also its obligation, as principal,
to see how its agent i.e. the Executive carries out the agency entrusted to it. Since it is the legislature which grants
legislative power to the administration, it is primarily its responsibility to ensure the proper exercise of delegated
legislative power, to supervise and control the actual exercise of this power, and ensure the danger of its objectionable,
abusive and unwarranted use by the administration.
In U.S.A., the control of the Congress over delegated legislation is highly limited because neither is the technique of
“laying” extensively used nor is there any Congressional Committee to scrutinize it. This is due to the constitutional
structurization in that country in which it is considered only the duty of courts to review the legality of administrative
rule-making.
In England, due to the concept of Parliamentary sovereignty, the control exercised by Parliament over administrative
rule-making is very broad and effective. Parliamentary control mechanism operates through “laying” techniques because
under the provisions of the Statutory Instruments Act, 1946, all administrative rule-making is subject to the control of
Parliament through the Select Committee on Statutory Instruments.
Parliamentary control in England is most effective because it is done in a non-political atmosphere and the three-line
whip does not come into operation. A whole system of legislative supervision over delegated legislation has come into
being in India. Two significant limbs of this mechanism are:

1. Laying of delegated legislation before the legislature (i.e Direct Control) ; and
2. Scrutiny of delegated legislation by a legislative scrutiny committee (i.e. Indirect Control).

(a) Memorandum on Delegation: At the central level, the first step in the chain of Parliamentary control over delegated
legislation is taken at the stage of delegation by Parliament. A rule of procedure of each House of Parliament requires
that a bill involving proposal for delegation of legislative power shall be “accompanied by a memorandum explaining
such proposals and drawing attention to their scope, and stating also whether they of exceptional or normal character”.
The rule is salutary, for the first stage of supervision arises at the stage of delegation. The purpose of memorandum is
to focus the attention of the Member of Parliament to the provisions of the bill involving delegation of legislative power.
The Speaker may also refer bills containing provision for delegation of legislative power to the committee to examine
the extent of such powers sought to be delegated.
(b) Laying Procedure: The second link in the chain of Parliamentary Control comes into play after the rules are made.
This is achieved by the mechanism of the ‘laying procedure’. The basic purpose of this procedure is informational. The
underlying idea is that if Parliament is to exercise any control, it is necessary that the House of parliament be informed
of the content of the delegated legislation made by the Government from time to time under various statutes. According
to Garner, the object of laying procedure is to bring the legislative measures to the potential notice of the Members of
Parliament.
The notable use of this technique was made in the Reorganization Acts of 1939 to 1969, which authorized the President
to reorganize the executive government by administrative rule-making. In England the technique of laying is very
extensively used because all the administrative rule-making is subject to the supervision of Parliament under the
Statutory Instruments Act, 1946 which prescribes timetable. The most common form of provision provides that the
delegated legislation comes into immediate effect but is subject to annulment by an adverse resolution of either house.
By Section 4 of the Statutory Instruments Act, 1946, where subordinate legislation is required to be laid before
Parliament after being made, a copy shall be laid before each House before the legislation comes into operation.
However, if it is essential that it should come into operation before the copies are laid, it may so operate but notification
shall be sent to the Lord Chancellor and the Speaker of the House of Commons explaining why the copies were not laid
beforehand. Under Section 6 of the Statutory Instruments Act, 1946, the draft of any statutory instrument should be
laid before the parliament. This act has somewhat formalized and systematized the laying procedure. Three main variants
of this procedure are used in statutes:
(i) Simple Laying : In almost all the Commonwealth countries, the procedure of ‘Laying on the Table’ of the Legislature
is followed. It serves two purposes: firstly, it helps in informing the legislature as to what all rules have been made by
the executive authorities in exercise of delegated legislation, secondly, it provides a forum to the legislators to question
or challenge the rules made or proposed to be made.
(ii) Laying with immediate effect but subject to annulment: Here the rules are laid in draft and can be annulled by a
resolution of a House. This is known as negative laying. In this procedure, the legitimacy of delegated legislation
precedes, not follows, the negative laying procedure. In this procedure the parliamentary function is ex post facto; it is
negative rather than positive; it provides for disallowance rather than allowance.
(iii) Laying in draft subject to affirmative resolution: here the rules are laid in draft before the houses. The rules come
into operation when the houses pass resolution affirmation them. An act of parliament will normally requires that rules
or regulation made under the Act shall be laid before both houses of Parliament. Parliament can keep its eye upon them
and provide opportunities for criticism. Rules or regulation laid before Parliament may be attacked on any ground. The
object of the system is to keep them under general political control, so that criticism in Parliament is frequently on
ground of policy. “Laying before Parliament is done in number of different ways. The regulations may merely have to
be laid; or they may be subject to negative resolution within forty days; or they may expire unless confirmed by
affirmative resolution; or they may have to be laid in draft. Occasionally, they don’t have to be laid at all, because
Parliament has omitted to make any provision.”
(iv) Legal consequences of non-compliance with the laying provisions: In England the provisions of Section 4(2) of the
Statutory Instruments Act, 1946 makes the laying provision mandatory for the validation of statutory instruments. In
India, however, the consequences of non-compliance with the laying provisions depend on whether the provisions in
the enabling Act are mandatory or directory. A laying requirement is regarded as directory when not coupled with the
requirement of laying rules in draft form and approval by the House. In the latter case the requirement of laying is
regarded as mandatory because the rules cannot come into force without being laid and approved by the houses of the
Parliament as a pre-requisite.
In case of laying procedure subject to a negative resolution, it is also regarded as directory. In this case, the rules come
into effect as soon as they are made and the laying procedure takes effect subsequently. In India also, the courts have
taken a similar view the question has been elaborately considered by the Supreme Court in Atlas Cycle Industries Ltd.
V State of Haryana. Section 3 (6) of the Essential Commodities Act,1955 lays down that any order issued under Section
3 “shall be laid before both Houses of the Parliament as soon as may be after it is made”. An order issued under S. 3
was not laid in the Houses and it was challenged as being ultravires. Rejecting the argument, the Supreme Court ruled
that S. 3(6) is only directory and not mandatory and that non-lying of an order before Parliament does not make it void.
The use of the world ‘shall’ in S. 3(6) is not conclusive and decisive of the matter, it is for the court to determine the
true intention of the legislature.
In Narendra Kumar v. Union of India, the Supreme Court held that the provisions of Section 3(5) of the Essential
Commodities Act, 1955, which provided that the rules framed under the Act must be laid before both Houses of
Parliament, are mandatory, and therefore Clause 4 of the Non-Ferrous Control Order, 1958 has no effect unless laid
before Parliament. However, in Jan Mohammad v. State of Gujarat, the court deviated from its previous stand. Section
26(5) of the Bombay Agricultural Produce Markets Act, 1939 contained a laying provision but the rules framed under
the Act could not be laid before the Provincial legislature in its first session as there was then no functioning legislature
because of World War II emergency. The rules were placed during the second session. Court held that the rules remained
valid because the legislature did not provide that the non-laying at its first session would make the rules invalid. Even
if the requirement of laying is only directory and not mandatory, the rules framed by the administrative authority without
conforming to the requirement of laying would not be permissible if the mode of rule-making has been violated.
(c) Parliamentary Scrutiny Committees (Indirect Control): the laying procedure by itself does not afford much of
an effective parliamentary supervision. In the negative resolution which now prevails in India, everything depends on
the vigilance of each individual member of Parliament. Allen has remarked so rightly, ‘it lies, then, in the realm of
constitutional fiction to say that Parliament exercises any really effective safeguard over delegated legislation’. Though
said in the context of England, it is equally true in the Indian context as well. To make parliamentary supervision over
delegated legislation more effective, two committees on subordinate Legislation, one in each House of Parliament, have
been established. In India and UK , there are Standing Committees of Parliament to scrutinize delegated legislation.
The Committee on Subordinate Legislation of Lok Sabha was appointed on December 1,1953 . The main functions of
the Committee are to examine:
(i) whether the rules are in accordance with the general object of the Act,
(ii) whether the rules contain any matter 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.
The Committee has between 1953 and 1961, scrutinized about 5300 orders and rules and has submitted reports. With
the institution of the Rajya Sabha Committee, Parliamentary Control of delegated legislation in India has become much
more effective, for the two committees can scrutinize many more rules every year than could possibly be done by one
committee alone.
(d) Recommendation by the Committee on Subordinate Legislation: The Committee on Subordinate Legislation
has made the following recommendation in order to streamline the process of delegated legislation in India:
i. Power of judicial review should not be taken away or curtailed by rules.
ii. A financial levy or tax should not be imposed by rules.
iii. Language of the rules should be simple and clear and not complicated or ambiguous.
iv. Legislative policy must be formulated by the legislature and laid down in the statute and power to supply
details may be left to the executive, and can be worked out through the rules made by the administration.
v. Sub-delegation in very wide language is improper and some safeguards must be provided before a delegate
is allowed to sub-delegate his authority to another functionary.
vi. Discriminatory rules should not be framed by the administration.
vii. Rules should not travel beyond the rule-making power conferred by the parent Act.
viii. There should not be inordinate delay in making of rules by the administration.
ix. The final authority of interpretation of rules should not be with the administration.
x. Sufficient publicity must be given to the statutory rules and orders.
Therefore, legislature exercises its control over the delegated legislation or the rule-making power by these two methods:
namely, ‘laying’ procedure and via Scrutiny committees.

Procedural Control over Delegated Legislation:

It is not possible for the Parliament to exercise effective control over delegated legislation. Therefore certain procedural
safeguards have been provided which are relevant to keep constant watch over the exercise of this power by the
administrative authorities. The methods of procedural control can be studied under the following heads.
(i) Prior Consultation of Interests Likely to be affected by Proposed Delegated Legislation: In the United States the
practice of prior consultations of the affected interests is very much common. The Administrative Procedure Act in S.5
requires the rule making authority to consult the interest likely to be affected. The interested persons are given an
opportunity by the agency concerned to submit their representations within prescribed time. There are various Acts in
America which provide not only consultation of interested bodies but also the consultation of certain advisory bodies
which are formulated for such purposes.
In England, there is a lot of informal consultation. But consultation as a matter of right arises only when it is prescribed
by a statutory provision. There is no statutory provision requiring consultation of affected interest in the rulemaking
process. From time to time, statutes specifically lay down some requirement or process for the rule making authority to
consult designated bodies or interests. Usually, the statutory requirement of consultation has been held to be mandatory
by the courts.
In India there is no general provision of law, requiring consultation of the affected interest in the process of rulemaking.
Where consultation is required, such words as “the power to make rules shall be subject to the conditions of previous
publication” are inserted in the parent Act. It is notable that in some statutes provisions are laid down conferring the
power on the affected interests to initiate and frame rules them. it is now a well-established proposition in India that no
hearing or consultation can be claimed by any one as a matter of right or natural justice, when the administration is
engaged in discharging a legislative function38 and the same cannot be challenged on the ground of non-observance of
the Principle of natural justice. According to the Supreme Court: ‘the rules of natural Justice are not applicable to
legislative action plenary or subordinate’. The procedural requirement of hearing is not implied in the exercise of
legislative powers unless hearing was expressly prescribed.’
(ii) Prior Publicity of Proposed Rules and Regulation: In India the practice of prior publication has been adopted
wherever prior consultation has been deemed necessary. According to Section 23 of General Clauses Act, 1897, the
authority shall publish the draft rules for information of affected interests in such manner as it deems sufficient. The
authority shall take into consideration any such objection which may be received by it while finalizing the rules.
In America the practice of prior publication has been adopted under various Acts. For example, under Rules Publication
Act, 1808, public notice was given of proposals to make 'statutory rules ' and the department concerned had to consider
representations or suggestions made by interested bodies, who were thus made aware of proposed rules of which they
otherwise might not have known. Such antecedent publicity was characterized by the Donoughmore Committee as
'undoubtedly a safeguard of the highest value particularly where it leads to consultation with the interests concerned. A
similar system of antecedent publicity is under the Act.
(iii). Publication: The term Publication refers ‘to the act of publishing anything; offering it to public notice, or rendering
it accessible to public scrutiny…an advising of the the public; making known of something to them for a purpose.’
something generally known. It comes from the Old English word ‘publicatio’ whose origin can be traced back to
‘publicare’, which means to make public. The simple concept which ascertains the publication of delegated legislation
revolves around two important principles. Firstly, it is to provide the parties which are going to be affected by the said
legislation an opportunity of being heard as provided by the Principle of Natural Justice.
In the leading case of Harla v State of Rajasthan, the Supreme recognized the importance of publication of rules in the
governance of the country. Natural justice requires that before a law becomes operative it must be promulgated or
published. It must be broadcast in some recognizable manner so that all men may know what it is, or, at the very least
there must be some special role or regulation or customary channel through which such knowledge can be acquired with
the exercise of due and reasonable diligence
Secondly, according to the maxim ignorantia juris non excusat‘ (i.e. ignorance of law is no excuse) and according to
this rule no person can claim the ignorance or him not knowing the law as an excuse. But this can be applied only when
the public were made aware of the existence of such law and this can be done by the means of publication hence
Publication of Legislation and Delegated Legislation has evolved and is regarded as a mandatory rule. It is a fundamental
principle of law that ignorance of law is no excuse (ignorantia juris non excusat). But there is also another equally
established principle of law that the public must have access to the law and they should be given an opportunity to know
the law. The very justification for the basic maxim is that the whole of our law, written or unwritten, is accessible to the
public-in the sense, of course, at any rate, its legal advisers have access to it, at any moment, as of right.

[Link]
legislative/judicial-control-of-delegated-legislation-6th-sem/22062112 see for Judicial control of delegated legislation

2. What do you understand by the Principle of Rule of Law? What is its relevance and applicability in present
times in democratic countries? Discuss with the help of decided cases.
The concept of Rule of Law is that the state is governed, not by the ruler or the nominated representatives of the people
but by the law. A country that enshrines the rule of law would be one where in the Grundnorm1 of the country, or the
basic and core law from which all other law derives its authority is the supreme authority of the state. The monarch or
the representatives of the republic are governed by the laws derived out of the Grundnorm and their powers are limited
by the law. The King is not the law but the law is king.
The phrase „Rule of Law‟ is derived from the French phrase “la principe de legalite‟ (the principle of legality) which
refers to a government based on principles of law and not of men.6 Rule of law is one of the basic principles of the
English Constitution and the doctrine is accepted in the Constitution of U.S.A and India as well. The entire basis of
Administrative Law is the doctrine of the rule of law.7 Legal historians have amply demonstrated the intrinsic linkage
between legal developments and the historical settings in which they take place. The concept of the Rule of Law is no
exception. It is grounded in the ideas of justice, fairness, and inclusiveness discussed by Aristotle; in the rules of war
addressed in the ancient Indian epics Mahabharatha and Ramayana; in the foundations of religious thought such as the
Ten Commandments and the Dharma Chakra; and in seminal historical documents such as the Magna Carta, which
embodied the principle that government itself is bound to abide by the law. w. Since then, philosophers and jurists from
all corners of the world have molded the philosophical underpinnings and judicial content of the Rule of Law. Today,
the Rule of Law is the foundation of good governance.
Sir Edward Coke, the Chief Justice in James I‟s Reign was the originator of this concept. In a battle against the King,
he maintained successfully that the King should be under God and the Law, and he established the supremacy of the
law. Prof. A.V Dicey developed this principle of Coke. In 1885 he gave following three postulates of the rule of law in
his classic book „Law and the Constitution‟. According to Prof. Dicey, rule of law has three means or we can say three
principles which are must be followed so that there will be supremacy of rule of law. The three principles are:
1. Supremacy of law; According to the first principle, A. V Dicey states that rule of law means there should be lacking
of arbitrariness or wide discretionary power. In other words every act will be controlled by law. According to Dicey the
English men were ruled by the law and law alone. In the words of Dicey, “Wherever there is discretion, there is room
for arbitrariness and that in a republic no less than under a monarchy discretionary authority on the part of the
Government must mean insecurity for legal freedom on the part of its subjects.”10As Wade11 says the rule of law
requires that the Government should be subject to the law, rather than the law subject to the Government. The rule of
law requires both citizens and governments to be subject to known and standing laws. The supremacy of law also
requires generality in the law. This principle is a further development of the principle of equality before the law. Laws
should not be made in respect of particular persons. As Dicey postulated, the rule of law presupposes the absence of
wide discretionary authority in the rulers, so that they cannot make their own laws but must govern according to the
established laws. Those laws ought not to be too easily changeable. Stable laws are a prerequisite of the certainty and
confidence which form an essential part of individual freedom and security. Therefore, laws ought to be rooted in moral
principles, which cannot be achieved if they are framed in too detailed a manner.
2. Equality before Law- The attribute of “Rule of Law” Dicey stated was “equality before the law and equal subjection
of all classes to the ordinary law of the land administered by the ordinary law courts.”13 The second principle
emphasizes everyone, including the government, irrespective of rank, shall be subject to the same law and courts. This
element is interpreted to be misguided and facing bundle of criticisms. In fact, by reason of maintaining the law and
order in the society, there are actually exceptions such as the Crown, police, Members of Parliament. The Crown may
exercise prerogative powers which may defeat the rights of individuals. The police have powers over and above the
citizen. Members of Parliament have immunity from the law of defamation. Prof. Dicey states that, there must be
equality before the law or equal subjection of all classes to the ordinary law of the land. He criticised the French legal
system of droit Administrative in which there were separate administrative tribunals for deciding the cases of State
Officials and citizens separately.
3. Predominance of Legal Spirit- The Third meaning of the rule of law is that the general principles of the constitution
are the result of juridical decisions determining file rights of private persons in particular cases brought before the Court.
Dicey states that many constitutions of the states (countries) guarantee their citizens certain rights (fundamental or
human or basic rights) such as right to personal liberty, freedom from arrest etc. According to him documentary
guarantee of such rights is not enough. Such rights can be made available to the citizens only when they are properly
enforceable in the Courts of law, For Instance, in England there is no written constitution and such rights are the result
judicial decision.
Application of the Doctrine in England: Though, there is no written constitution, the rule of law is applied in concrete
cases. In England, the Courts are the guarantors of the individual rights. Rule of law establishes an effective control over
the executive and administrative power.
The view of Dicey as to the meaning of the Rule of Law has been subject of much criticism. The whole criticism
may be summed up as follows.
i. Dicey has opposed the system of providing the discretionary power to the administration. In his opinion
providing the discretionary power means creating the room for arbitrariness, which may create as serious threat
to individual freedom. Now days it has been clear that providing the discretion to the administration is inevitable.
The opinion of the Dicey, thus, appears to be outdated as it restricts the Government action and fails to take note
of the changed conception of the Government of the State.
ii. Dicey has failed to distinguish discretionary powers from the arbitrary powers. Arbitrary power may be taken
as against the concept of Rule of Law. In modern times in all the countries including England, America and
India, the discretionary powers are conferred on the Government. The present trend is that discretionary power
is given to the Government or administrative authorities, but the statute which provides it to the Government or
the administrative officers lays down some guidelines or principles according to which the discretionary power
is to be exercised. The administrative law is much concerned with the control of the discretionary power of the
administration. It is engaged in finding out the new ways and means of the control of the administrative
discretion.
iii. According to Dicey the rule of law requires that every person should be subject to the ordinary courts of the
country. Dicey has claimed that there is no separate law and separate court for the trial of the Government
servants in England. He critcised the system of droit administrative which is prevailing in France. In France
there are two types of courts Administrative Court and Ordinary Civil Courts. The disputes between the citizens
and the Administration are decided by the Administrative courts while the other cases, (i.e. the disputes between
the citizens) are decided by the Civil Court. Dicey was very critical to the separation for deciding the disputes
between the administration and the citizens According to Dicey the Rule of Law requires equal subjection of all
 persons to the ordinary law of the country and absence of special privileges for person including the
administrative authority. This proportion of Dicey does not appear to be correct even in England. Several persons
enjoy some privileges and immunities. For example, Judges enjoy immunities from suit in respect of their acts
done in discharge of their official function
iv. Third meaning given to the rule of law by Dicey that the constitution is the result of judicial decisions
determining the rights of private persons in particular cases brought before the Courts is based on the peculiar
character of the Constitution of Great Britain. In spite of the above shortcomings in the definition of rule of law
by Dicey, he must be praised for drawing the attention of the scholars and authorities towards the need of
controlling the discretionary powers of the administration. He developed a philosophy to control the
Government and Officers and to keep them within their powers. The rule of law established by him requires
that every action of the administration must be backed by law or must have been done in accordance with law.
The role of Dicey in the development and establishment of the concept of fair justice cannot be denied. The
concept of rule of law, in modern age, does not oppose the practice of conferring discretionary powers upon the
government but on the other hand emphasizing on spelling out the manner of their exercise. It also ensures that
every man is bound by the ordinary laws of the land whether he be private citizens or a public officer; that
private rights are safeguarded by the ordinary laws of the land. Thus the rule of law signifies that nobody is
deprived of his rights and liberties by an administrative action; that the administrative authorities perform their
functions according to law and not arbitrarily; that the law of the land are not unconstitutional and oppressive;
that the supremacy of courts is upheld and judicial control of administrative action is fully secured.
Rule of Law under Indian Constitution:
Rule of law has played a great role to develop Indian democracy. When Indian constitution was frame they had two
options e.g. USA & England. They adopted some provisions from USA and some from England. Our constitutional
founder fathers adopted the Rule of Law from England and incorporate so many provisions in Indian constitution. Indian
Constitution is supreme no one is above Indian constitution. All three organs follow constitution if any organ does
something in the violation of the constitution all such acts will be ultra vires. The preamble of The Constitution is also
tells about Rule of Law. Part- III and all fundamental Rights come under the Rule of Law, which are enforceable by
Law. If these are violated we can go to the Supreme Court and High court under Article 32 &226.
The term Law includes all orders, rules, regulations, bylaws, notice and customs. It expects that all these will be
according to Constitutional provisions if they will against, under article-13 they will be declare unconstitutional and
void. In the Constitution of India guaranteed certain rights which can be enforced by the courts. At this Juncture, we
may consider the position prevailing in India as regards the third principle of Dicey‟s doctrine of Rule of Law, i.e.,
predominant of legal spirit. Until this principle was being considered in the context of interpreting the provisions of the
Constitutions.
The principles of Rule of Law i.e. justice, equality and liberty are enriched in the Constitution of India. The Constitution
of India is above all the laws implemented in Indian Territory and any law made by the central government or by the
state government must be in confirmation with the Constitution of India. If any law made by the legislation under the
jurisdiction of India which is against the mandates of the constitution, the law would be void. The constitution of India
guarantees equality before the law, as an aspect of the rule of law, under Article-14.
Under Article 32, the Supreme Court has power to issue writes in the nature of Habeas Corpus, mandamus, prohibition,
quo warrantor and certiorari. It is also given power of judicial review to prevent any ultra vires law, to preserve „Rule
of Law' Article 15 and 16 of right to equality and Article 19, 20 and 21 in form of right to life and liberty are provisions
of our constitution to this affect. In India, no one has very arbitrary power, except the powers given by the law. The
constitution is the Supreme Court law of the land and even the government derives its authority from it. This effectuates
the supremacy of law.
Everyone, in India are subject to same laws, without any discrimination, court takes into account no rank or condition
However, the president and the governors (under Article 361) are given special exemptions. Armed forces personnels
are treated by armed laws, officials are given same immunities etc. But these provisions do not negate the effectiveness
of the rule of law in India, because their provisions are also made by laws, under various provisions of the constitution.
From a poor person to the president, be it a police constable or a collector, are treated by law. Thus, the Indian
constitution effectively applies the rule of law. The Supreme Court in the case of India Nehru, Gandhiji vs. Raj Narain
- 1975 held that the rule of law embodied in Article 14 is the 'basic structure' of the Indian constitution and hence it
cannot be destroyed even by an amendment of the constitution under Article 368 of the constitution
The popular habeas corpus case, ADM Jabalpur v. Shivakant Shukla is one of the most important cases when it comes
to rule of law. In this case, the question before the court was „whether there was any rule of law in India apart from
Article 21‟. This was in context of suspension of enforcement of Articles 14, 21 and 22 during the proclamation of an
emergency. The answer of the majority of the bench was in negative for the question of law. However Justice H.R.
Khanna dissented from the majority opinion and observed that “Even in absence of Article 21 in the Constitution, the
state has got no power to deprive a person of his life and liberty without the authority of law. Without such sanctity of
life and liberty, the distinction between a lawless society and one governed by laws would cease to have any meaning…”
In Chief settlement Commr; Punjab v. Om Prakash, it was observed by the supreme court that, “In our constitutional
system, the central and most characteristic feature is the concept of rule of law which means, in the present context, the
authority of law courts to test all administrative action by the standard of legality. The administrative or executive action
that does not meet the standard will be set aside if the aggrieved person brings the matter into notice.” In India, the
meaning of rule of law has been much expanded. It is regarded as a part of the basic structure of the Constitution and,
therefore, it cannot be abrogated or destroyed even by Parliament. The ideals of constitution; liberty, equality and
fraternity have been enshrined in the preamble. Constitution makes the supreme law of the land and every law enacted
should be in conformity to it. Any violation makes the law ultra vires.
In Keshvanad Bharti Vs. Union of India, the Supreme Court enunciated the rule of law as one of the most important
aspects of the doctrine of basic structure. In Menaka Gandhi vs. Union of India, the Supreme Court declared that Article
14 strikes against arbitrariness. In Indira Nehru Gandhi Vs. Raj Narayan, Article 329-A was inserted in the Constitution
under 39th amendment, which provided certain immunities to the election of office of Prime Minister from judicial
review. The Supreme Court declared Article 329-A as invalid since it abridges the basic structure of the Constitution.
In addition to this in P. Sambamurthy v. State of Andhra Pradesh the SC has declared a provision authorizing the
executive to interfere with tribunal justice as unconstitutional characterizing it as “violative of the rule of law which is
clearly a basic and essential feature of the constitution”. Yet another case is of Yusuf Khan v. Manohar Joshi in which
the SC laid down the proposition that it is the duty of the state to preserve and protect the law and the constitution and
that it cannot permit any violent act which may negate the rule of law.
The Supreme Court observed in Som Raj v. State of Haryana that the absence of arbitrary power is the primary postulate
of Rule of Law upon which the whole constitutional edifice is dependant. Discretion being exercised without any rule
is a concept which is antithesis of the concept.

3. What do you mean by Audi Alteram Partem? What are the essential requirements of it? Elucidate.
The notion of audi alteram partem is the foundation of natural justice. The term audi alteram partem simply means that
everyone should have the opportunity to defend themselves. No one should be convicted without a hearing because of
the doctrine's omnipotence. This concept has been applied to administrative action in order to offer fairness and justice
to individuals who have been wronged. Its application is based on the factual matrix and is intended to improve
administrative efficiency, expediency, and fairness.
The procedure ought to be fair and just. This is a principle that must be followed by every civilised community. This
rule has a corollary: qui aliquid statuerit, parte inaudita altera aequum licet dixit, haud aequum facit, i.e., anyone who
makes a decision without hearing the other side will not do what is right, even if he claims to be doing so. The rule of
fair hearing applies to every stage of an administrative adjudication, from notification to final conclusion, because it is
a code of procedure.
Notice: The word 'notice' comes from the Latin word 'notitia,' which literally means 'to be known.' Any hearing begins
with a notice. A person cannot defend himself unless he understands the subject and problems involved in the case. A
decision made without notification is null and void from the start.
The obligation of notice is neither statutory nor specified anywhere in India or England, but it is in the Administrative
Procedures Act of the United States, Section 5(a). Management of Northern Railway Co-operative Society v. Industrial
Tribunal Rajasthan the Supreme Court established the following requirements for notice:

 Notice to be clear, specific and unambiguous.

 Must contain time, nature and place of hearing.
 Must have the statement of charges and must reveal other relevant material for the party.
  Must provide a reasonable opportunity to the other party.
Failure to issue a notice when a statute clearly requires it renders the activity null and void. Under Article 22[4] of the
Indian Constitution, detainees must be informed of the reasons for their incarceration, and if the reasons are vague, the
detention order may be revoked by the court. The reasons for the proposed action must be exact, specific, and
unequivocal in the notification. A notification is considered confusing if it just mentions the charges without saying what
action will be done.
A legal notice is an important tool for the parties to communicate with one another. A well-drafted legal notice can help
parties resolve their differences without having to go through the formality of a formal legal procedure, saving both,
time and money.
Chintapalli Agency Taluk Arrack (CATA) Sales Coop. Society Ltd. v. Secy. (Food and Agriculture), Govt. of A.P.,
(1977) 4 SCC 337 : AIR 1977 SC 2313
Government did not give any notice communicating to the appellant about entertainment of the application in revision
preferred by the respondents. Even though the appellant had filed some representations in respect of the matter, it would
not absolve the Government from giving notice to the appellant to make the representation against the claim of the
respondents. The minimal requirement under Section 77(2) is a notice informing the opponent about the application and
affording him an opportunity to make his representation against whatever has been alleged in his petition. It is true that
a personal hearing is not obligatory but the minimal requirement of the principles of natural justice which are ingrained
in Section 77(2) is that the party whose rights are going to be affected and against whom some allegations are made and
some prejudicial orders are claimed should have a written notice of the proceedings from the authority disclosing the
grounds of complaint or other objection preferably by furnishing a copy of the petition on which action is contemplated
in order that a proper and effective representation may be made. This minimal requirement can on no account be
dispensed with by relying upon the principle of absence of prejudice or imputation of certain knowledge to the party
against whom action is sought for.
Gokak Patel Volkart Ltd. v. CCE, (1987) 2 SCC 93 : AIR 1987 SC 1161
No notice seems to have been issued in this case in regard to the period in question. Instead thereof an outright demand
had been served. The provisions of Section 11-A(1) and (2) make it clear that the statutory scheme is that in the situations
covered by the sub-section (1), a notice of show cause has to be issued and sub-section (2) requires that the cause shown
by way of representation has to be considered by the prescribed authority and then only the amount has to be determined.
The scheme is in consonance with the Rules of natural justice. An opportunity to be heard is intended to be afforded to
the person who is likely to be prejudiced when the order is made, before making the order thereof. Notice is thus a
condition precedent to a demand under sub-section (2). In the instant case, compliance with this statutory requirement
has not been made, and, therefore, the demand is in contravention of the statutory provision. Certain other authorities
have been cited at the hearing by counsel for both sides. Reference to them, we consider, is not necessary.
State of U.P. v. Vam Organic Chemicals Ltd., (2010) 6 SCC 222 : 2010 SCC OnLine SC 332
Sufficiency of reasons — Necessity of show-cause notice — Held, precondition of sufficiency of reasons requires show-
cause notice to be issued before taking decision — In instant case, dealer in whose favour a recognition certificate
containing certain items exists, to be issued show-cause notice as to why an item should not be deleted in a given case
In all these matters, the respondents are manufacturers of notified goods. These respondents have been given Central
registration under Section 7 of the Central Sales Tax Act, 1956, and also recognition certificate under Section 4-B of the
Uttar Pradesh Trade Tax Act, 1948, for purchase of high speed diesel oil at a concessional rate. These certificates have
been given on different dates by the appellants. On the basis of the recognition certificate the respondent Company
became entitled to purchase various goods against Form III-B, which was issued by the assessing authority on payment
of concessional rate of tax.
However, the Principal Secretary, Finance, Uttar Pradesh, took a decision that the benefit of Form III-B for the purchase
of HSD to be used in diesel generating sets in the factory should not be given the benefit of concessional rate since such
HSD was not directly used in the manufacture of notified goods (chemicals); rather, it was used for generating electricity
in the generating set which electricity was then captively used for manufacturing chemicals. On the basis of the said
decision all Trade Tax Authorities of the State issued notices for deletion of HSD, an item mentioned in the Company's
recognition certificate. It is this show-cause notice which came to be challenged by the respondent Company and others
by filing writ petitions in the High Court. By the impugned judgments, the High Court came to the conclusion that the
stand of the Department was highly technical. According to the High Court, HSD was used by the respondents for the
manufacture of chemicals (notified goods), as mentioned in Section 4-B(2) of the 1948 Act. According to it, the word
“directly” is not mentioned in Section 4-B(2) of the 1948 Act. It further held that Section 4-B(2) of the 1948 Act did not
mention that the goods, referred to in sub-section (1), should be used directly for the manufacture of the notified goods.

2. Pre and post decision hearing

The second most essential element of audi alteram partem is fair hearing. If the order passed by the authority without
hearing the party or without giving him an opportunity of being heard then it will be considered as an invalid.
The rule of audi alteram partem is held inapplicable not by method for a special case to “reasonable play in real life”,
but since nothing unjustifiable can be derived by not managing a chance to present a case.
Kehar Singh v. Union of India, (1989) 1 SCC 204 : 1989 SCC (Cri) 86
Constitution of India — Article 72 — Convict seeking relief under, has no right to insist on oral hearing before
the President — Administrative Law — Natural Justice
Held : The proceeding before the President is of an executive character, and when the petitioner files his petition it is
for him to submit with it all the requisite information necessary for the disposal of the petition. He has no right to insist
on presenting an oral argument. The manner of consideration of the petition lies within the discretion of the President,
and it is for him to decide how best he can acquaint himself with all the information that is necessary for its proper and
effective disposal. The President may consider sufficient the information furnished before him in the first instance or he
may send for further material relevant to the issues which he considers pertinent, and he may, if he considers it will
assist him in treating with the petition, give an oral hearing to the parties. The matter lies entirely within his discretion.
The considerations to be applied by the President to the petition have already been laid down by the Court in Maru Ram
case.
Travancore Rayon Ltd. v. Union of India, (1969) 3 SCC 868 : AIR 1971 SC 862
In this case, the communication from the Central Government gave no reasons in support of the order; the appellant
Company is merely intimated thereby that the Government of India did not see any reasons to interfere “with the order
in appeal”. The communication does not disclose the “points” which were considered, and the reasons for rejecting
them. This is a totally unsatisfactory method of disposal of a case in exercise of the judicial power vested in the Central
Government. Necessity to give sufficient reasons which disclose proper appreciation of the problem to be solved and
the mental process by which the conclusion is reached, in cases where a non-judicial authority exercises judicial
functions, is obvious. When judicial power is exercised by an authority normally performing executive or administrative
functions, this Court would require to be satisfied that the decision has been reached after due consideration of the merits
of the dispute, uninfluenced by extraneous considerations of policy or expediency. The Court insists upon the disclosure
of reasons in support of the order on two grounds: one, that the party aggrieved in a proceeding before the High Court
or this Court has the opportunity to demonstrate that the reasons which persuaded the authority to reject his case were
erroneous; the other, that the obligation to record reasons operates as a deterrent against possible arbitrary action by the
executive authority invested with the judicial power
Maneka Gandhi v. Union of India, (1978) 1 SCC 248 : (1978) 2 SCR 621 : AIR 1978 SC 597
Audi alteram partem — Applicability — Even if not specifically mentioned it may be applicable by implication
Per Beg, C.J.- It is well established that even where there is no specific provision in a statute or rules made thereunder
for showing cause against action proposed to be taken against an individual, which affects the rights of that individual,
the duty to give reasonable opportunity to be heard will be implied from the nature of the function to be performed by
the authority which has the power to take punitive or damaging action.
K.I. Shephard v. Union of India, (1987) 4 SCC 431 : 1987 SCC (L&S) 438 : AIR 1988 SC 686
Requirements of natural justice- Natural justice generally requires that persons liable to be directly affected by
proposed administrative acts, decisions of proceedings be given adequate notice of what is proposed so that they may
be in a position
(a) to make representations on their own behalf;
 (b) or to appear at a hearing or enquiry (if one is held); and
(c) effectively to prepare their own case and to answer the case (if any) they have to meet.
Principles of natural justice applicable to administrative actions — Even in emergent situations, compliance with at
least minimum requirements of natural justice rules is a condition precedent to taking any action which effects
adverse civil consequences such as loss of livelihood — Post-decisional hearing not sufficient in such cases — Service
Law

3. Right to present evidence

Anyone facing an administrative authority with adjudicatory responsibilities has a right to know what evidence will be
used against them. This premise was established in Dhakeshwari Cotton Mills Ltd v. CIT.[5] The department's
information to the appellate income tax tribunal was not given in this case.
According to the Supreme Court, the assessee was not allowed a fair hearing. A summary of the material's contents is
sufficient, according to the court, as long as it is not misleading. Whatever approach is utilised, the essential concept
remains the same: nothing should be used against someone who has not been informed of the situation.
Exception To Right To Know The Evidence: There may be times when the record is so large that sharing it with the
accused is physically impossible. To deal with such a situation, Section 207[7] of CrPC's second proviso allows the
magistrate to withhold extensive documents from the accused and merely allow inspection. However, this is the only
codified basis for withholding documents from the accused. In all other circumstances, the accused must be given access
to the materials relied on by the prosecution in order to have a fair trial. Many courts now order investigating agencies
to create an electronic file containing extensive information and provide it to the accused. What about any audio or video
evidence that the prosecution may have? In most situations, the accused is entitled to a copy of the audio/video records
that the prosecution is relying on. Because such records aren't 'voluminous,' they can't even be subject to the magistrate's
discretion.
Dhakeswari Cotton Mills Ltd. v. CIT, 1954 SCC OnLine SC 47 : (1955) 1 SCR 941 : (AIR 1955 SC 65
Proper hearing by ITO- Though, the Income Tax Officer is not required to follow the rules laid down in the Civil
Procedure Code and Evidence Act but in giving hearing they must comply with the fundamental rules of natural justice.
Syndicate Bank v. General Secy. Syndicate Bank Staff Assn., (2000) 5 SCC 65 : 2000 SCC (L&S) 60
Two principles emerge from case-law: (1) principles of natural justice and duty to act in a just, fair and reasonable
manner have to be read in the Certified Standing Orders which have statutory force. These can be applied by the Labour
Court and the Industrial Tribunal even to relations between the management and workman though based on contractual
obligations; and (2) where domestic inquiry was not held or it was vitiated for some reason the Tribunal or Court
adjudicating an industrial dispute can itself go into the question raised before it on the basis of the evidence and other
material on record. (Para 14)
The requirements of principles of natural justice are: (1) a workman should know the nature of the complaint or
accusation; (2) an opportunity to state his case; and (3) the management should act in good faith which means that the
action of the management should be fair, reasonable and just. All these three criteria have been fully met in the present
case. Principles of natural justice are inbuilt in clause 16 of the Bipartite Settlement. When evidence was led before the
Tribunal, the Bank produced the registered covers, which had been received back with the endorsement “refused” and
the addressee “not found during delivery time”. D said he never refused to receive the notice. In these circumstances the
Industrial Tribunal erred in holding that notice was not served on D as the Bank did not examine the postman. The notice
was sent on the correct address of D and it was received back with the postal endorsement “refused”. A clear
presumption arose in favour of the Bank and against D . (Para 16)
There are two essential elements of natural justice which are: (a) no man shall be judge in his own cause; and (b) no
man shall be condemned, either civilly or criminally, without being afforded an opportunity of being heard in answer to
the charge made against him. In course of time by various judicial pronouncements these two principles of natural justice
have been expanded, e.g., a party must have due notice when the tribunal will proceed; the tribunal should not act on
irrelevant evidence or shut out relevant evidence; if the tribunal consists of several members they all must sit together
at all times; the tribunal should act independently and should not be biased against any party; its action should be based
on good faith and order and should act in a just, fair and reasonable manner.
4. Supply of inquiry report
Vijay Kumar v. State of Maharashtra, 1988 Supp SCC 674 : AIR 1988 SC 2060
An uncommunicated adverse report should not form the foundation to deny benefits to a government servant when
similar benefits are extended to his juniors. The report that was communicated to the appellant in this case did not
indicate anything against him; instead the assessment as a serious, intelligent and quiet type of officer taking interest in
group discussions are the best qualities of any officer. The inferiority complex attributed to the appellant in that report
cannot outweigh those good qualities. It is more often the superiority complex that causes harm to the public and not
the inferiority complex. The denial of senior time scale to the appellant, in any event, is therefore wholly unjustified and
arbitrary.
Prathama Bank v. Vijay Kumar Goel, (1989) 4 SCC 441 : 1989 SCC (L&S) 664
If they are of the view that any particular document is confidential in nature and a copy thereof cannot be handed over
to the respondent they may so indicate in writing to the respondent and it will be open to the inquiry officer to examine
whether the denial of such a copy would amount to violation of principles of natural justice. The Bank shall also permit
the respondent to join his post and receive his other benefits before he is called upon to file a show cause. Subject to the
modifications as indicated the decree under appeal is affirmed. The parties are directed to bear their own costs of this
Court.
Keshav Mills Co. Ltd. v. Union of India, (1973) 1 SCC 380 : AIR 1973 SC 389
Supply of adverse material — Government take-over of textile mill in accordance with report of Investigating
Committee, appointed under S. 5 of Industries (Development and Regulation) Act — Whether report should be
made available to the company concerned
It is not possible to lay down any general principle on the question as to whether the report of an investigating body or
of an Inspector appointed by an administrative authority should be made available to the persons concerned in any given
case before the authority takes a decision upon that report. The answer to this question also must always depend on the
facts and circumstances of the case. It is not at all unlikely that there may be certain cases where unless the report is
given the party concerned cannot make any effective representation about the action that Government takes or proposes
to take on the basis of that report. Whether the report should be furnished or not must therefore depend in every
individual case on the merits of that case. In the instant case non-disclosure of the report of the Investigating Committee
has not caused any prejudice whatsoever to the appellants. (Paras 11, 12, 14 and 21).
Kashinath Dikshita v. Union of India, (1986) 3 SCC 229 : AIR 1986 SC 2118
Held : The impugned order of dismissal rendered by the disciplinary authority is violative of Art. 311(2) inasmuch as
the appellant had been denied reasonable opportunity of defending himself is on that account null and void.
When a government servant is facing a disciplinary proceeding, he is entitled to be afforded a reasonable opportunity to
meet the charges against him in an effective manner. And no one facing a departmental enquiry can effectively meet the
charges unless the copies of the relevant statements and documents to be used against him are made available to him. In
the absence of such copies the concerned employee cannot prepare his defence, cross-examine the witnesses, and point
out the inconsistencies with a view to show that the allegations are incredible. Whether or not refusal to supply copies
of documents or statements has resulted in prejudice to the employee facing the departmental enquiry depends on the
facts of each case. In the facts and circumstances of the present case the appellant had been prejudiced in regard to his
defence on account of the non-supply of the statements and documents. The appellant would have needed those
documents and statements in order to cross-examine the 38 witnesses and to make effective arguments. Although the
disciplinary authority gave an opportunity to the appellant to inspect the documents and take notes, but even in this
connection the reasonable request of the appellant to have the help of his stenographer was refused. Thus the appellant
had been denied reasonable opportunity to defend himself. The respondent-State has not been able to show that no
prejudice was caused to the appellant.

State of U.P. v. Harendra Arora, (2001) 6 SCC 392: AIR 2001 SC 2319
From the case of ECIL it is plain that in cases covered by the constitutional mandate i.e. Article 311(2), non-furnishing
of enquiry report would not be fatal to the order of punishment unless prejudice is shown. Therefore, requirement in the
statutory rules of furnishing copy of the enquiry report cannot be made to stand on a higher footing by laying down that
question of prejudice is not material therein.
Moreover, every infraction of statutory provisions would not make the consequent action void and/or invalid. The statute
may contain certain substantive provisions, e.g., who is the competent authority to impose a particular punishment on a
particular employee. Such provision must be strictly complied with as in such cases the theory of substantial compliance
may not be available. But in respect of many procedural provisions, it would be possible to apply the theory of substantial
compliance or the test of prejudice, as the case may be. Even amongst procedural provisions, there may be some
provisions of a fundamental nature which have to be complied with and in whose case the theory of substantial
compliance may not be available, but the question of prejudice may be material. In respect of procedural provisions
other than of a fundamental nature, the theory of substantial compliance would be available and in such cases objections
on this score have to be judged on the touchstone of prejudice. The test would be, whether the delinquent officer had or
did not have a fair hearing.
Even in the CPC there are various provisions viz. Sections 99-A and 115 besides Order 21 Rule 90 where merely
because there is defect, error or irregularity in the order, the same would not be liable to be set aside unless it has
prejudicially affected the decision. Likewise, in the CrPC also, Section 465 lays down that no finding, sentence or
order passed by a competent court shall be upset merely on account of any error, omission or irregularity unless in the
opinion of the court a failure of justice has, in fact, been occasioned thereby.

5. Right to rebuttal
Cross Examination: This entitlement is based on the assumption that the defendant has been informed of the evidence
against him. It's the most powerful method for eliciting and establishing truth. Cross-examination is not required in
administrative adjudication unless the circumstances are such that the individual would be unable to make an adequate
defence without it.
There is, however, some difference of judicial opinion on this point in England. In Pett vs greyhound raching 1968 2
ALL ER 585 the Court of Appeal unanimously upheld the right to legal representation before a Tribunal enquiring into
matters affecting a man's reputation or livelihood or any matters of serious import at least where there is a right to an
oral hearing. This was on the principle that what a person could himself do. He could get it done by his agent, and a
legal practitioner would only be his agent.
But in Pett (2), the Court dissented from the view taken in Pett (1). Discussing representation; the matter again it in was
Enderby, a matter the Court held that there is no absolute right to legal representation, it was the matter for the discretion
of the adjudicator. But the adjudicator cannot lay down an absolute against legal of representation; he should be willing
to permit it in an exceptional case.
State of Kerala v. K.T. Shaduli Grocery Dealer, (1977) 2 SCC 777 : AIR 1977 SC 1627
Nature of rules of natural justice — The rules of natural justice are not a constant: they are not absolute and rigid rules
having universal application
Sales tax — Opportunity of being heard — Rule of audi alteram partem — Scope in the context of sales tax — Whether
opportunity of being heard includes a right to cross-examine witness relied upon by the adjudicating authority depends
on the facts of the case — Giving of opportunity would not amount to condonation of default of the assessee
Exception To Rule Regarding Cross Examination- The Supreme Court ruled that because there is a risk of future
harassment, retaliation, and the like, cross examination is not required under certain situations. This is not, however, a
general rule of exception and is usually exclusively applied in the setting of a school.

Legal Representation- Section 30 of the Civil Procedure Code in India contains this regulation. "Legal representation
of right quality before the statutory tribunal is desirable," De Smith writes in his book Judicial Review, "and a person
threatened with social or financial ruin by disciplinary proceedings in a purely domestic forum may be gravely
prejudiced if he is denied legal representation.
Port of Bombay v. Dilipkumar Raghavendranath Nadkarni, (1983) 1 SCC 124 : 1983 SCC (L&S) 61
Where in a disciplinary enquiry by a domestic tribunal, the employer appoints Presenting-cum-Prosecuting Officer to
represent the employer by persons who are legally trained, denial of a request of the delinquent employee, seeking
permission to appear and defend himself by a legal practitioner, would vitiate the enquiry on the ground that the
delinquent employee had not been afforded a reasonable opportunity to defend himself, thereby violating one of the
essential principles of natural justice.
In the present case the respondent was pitted against two legally trained minds at the cost of the Port Trust while the
respondent was asked either to fend for himself in person or have assistance of another employee who was not shown
to be a legally trained person, though the Chairman of the appellant was not precluded from granting the respondent's
request for allowing him to be represented by legal practitioner. Therefore, apart from general propositions, in the facts
of the case, this enquiry would be a one-sided enquiry weighted against the delinquent officer and would result in
violation of one of the essential principles of natural justice, namely, that a person against whom enquiry is held must
be afforded a reasonable opportunity to defend himself.
Moreover, the “procedure prescribed by law” within the meaning of Art. 21 was also not followed in this case. The
expression `life' in Art. 21 does not merely connote animal existence or a continued drudgery through life but has a
much wider meaning. Where therefore the outcome of a departmental enquiry is likely to adversely affect reputation or
livelihood of a person, some of the finer graces of human civilization which make life worth living would be jeopardised
and the same can be put in jeopardy only by law which inheres fair procedures.

5. Discuss the nature, scope, and definition of administrative law.

Administrative law is a subset of public law that deals with the various powers, responsibilities, rights, and liabilities
of government agencies involved in public administration. Various attempts to provide a definitive definition have
been made, but none have been successful. “Administrative law is as to determine the ends to which sovereign powers
shall be exercised and the modes in which those powers shall be exercised,” according to Austin.
The American approach to Administrative Law
The American approach to Administrative Law is denoted by the definition of Administrative Law as propounded by
the leading scholar Kenneth Culp Davis. According to him, Administrative Law is the law concerning the powers and
procedures of administrative agencies, including especially the law governing judicial review of administrative action.
It does not include the enormous mass of substantive law produced by the agencies. An administrative agency, according
to Davis, is a governmental authority, other than a Court and other than a legislative body, which affects the rights of
private parties through either adjudication or rule-making.
He further goes on to observe: "Apart from judicial review, the manner in which public officers handle business unrelated
to adjudication or rule-making is not a part of Administrative Law; this means that much of what political scientists call
'public administration' is excluded."
Davis says that the emphasis of Administrative Law is on procedures for formal adjudication and for rule-making. It
also studies such matters as investigating, prosecuting, negotiating, settling, or informally acting.
Criticism of Davis- In the USA, some of these functions are included under the two categories mentioned, viz .,
adjudication and rule-making. Nor does the formulation of administrative agency appear to be exhaustive as it seeks to
exclude agencies having administrative authority pure and simple not having judicial or legislative functions, Further,
the emphasis in the definition is on judicial control of administrative agencies. but not on other control mechanisms,
such as the Parliamentary control of delegated legislation, control through administrative appeals, and through the
Ombudsman type institution. These controls, are quite important and significant and need to be studied for a fuller
comprehension of the scope of Administrative Law.

The British approach to Administrative Law

A V Dicey, a British scholar has defined 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. The definition is narrow and restrictive in so far as it leaves out of consideration many aspects of
Administrative Law, e.g ., it excludes many administrative authorities which, strictly speaking, are not officials of the
States such as public corporations; it also excludes procedures of administrative authorities, or their various powers and
functions, or their control by Parliament or in other ways. Dicey's formulation refers primarily to one aspect of
Administrative Law, i.e ., control of public officials. Dicey formulated his definition with the French Droit Administratif
in view.

The modern British approach to Administrative Law is depicted by the following definition formulated by Sir Ivor
Jennings: "Administrative Law is the law relating to the Administration. It determines the organisation, powers and
duties of administrative authorities." This is the most commonly accepted view and has been adopted, with slight verbal
changes, by many leading scholars of today.
Jennings' definition is fuller in one respect as compared to that of Davis; it includes "administrative powers" which the
latter seems to include within the two headings of legislation and adjudication but does not mention them separately as
such. In one respect, however, Jennings definition falls short of Davis' formulation. While Davis lays emphasis on
procedures used by administrative agencies in exercising their powers, Jennings does not mention procedures directly
and specifically; he only leaves them to be implied from such broad words as "organisation, powers and duties," and
this appears to constitute a basic difference between present-day American and the British Administrative Law.
Difference Between American And British Approach.
The British Administrative Law does not lay so much emphasis on procedures of administrative to underline bodies as
the does importance the American of procedures Administrative in Administrative Law. It is, Law. however, In a
democratic set-up administrative procedures have to be democratic; the affected interest groups should get a
participation not only in the policy-making but even in the administration of policies.
The current thinking is that procedures have great significance in Administrative Law because proper procedures are
necessary for proper discharge of administrative powers and that it is in the area of procedures that safeguards can be
incorporated for the individual against the administrative process with any success rather than seeking to control the
exercise of administrative power through other means. Evolution of fair procedures is thus necessary to minimise the
abuse of administrative powers. Therefore, the basic question at the present time is: how can the legal ideas of fair
procedure and just decision be infused into the administrative powers of the State?
This approach promises greater success than the attempt to control the administration through the Courts. It is this
realisation that has led the American Administrative Law to place emphasis upon procedural safeguards to ensure a
proper exercise of the administrative power. Subsequently, thinking in Britain also proceeded along these lines as shown
by the fact that the Franks Committee investigated rather elaborately into the working of various Tribunals and quasi-
judicial bodies, and, as a result thereof, a number of procedural improvements were effected into the working of the
whole system. From the 1950's more attention started to be devoted in Britain to the study of administrative procedures.

Indian approach of Definition by Jain and Jain

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

 It deals with composition and the powers of administrative authorities.

 It fixed the limits of the powers of such authorities.
 It prescribes the procedures to be followed by these authorities in exercising such powers and,
 It controls these administrative authorities through judicial and other means.

Nature of Administrative Law

Administrative law is, in the true sense of the word, a law. However, it is not a law in the sense of “property law,” “land
laws,” “labour laws,” and so on. It includes the study of things that aren’t technically laws, such as administrative
circulars, policy statements, resolutions, memorandums, administrative circulars, policy statements, and so on. Aside
from that, it includes “higher law; natural justice” in its research. In contrast to private law, which deals with individual
inter se relationships, administrative law is a branch of public law. As a result, administrative law is primarily concerned
with the interaction of individual and organized power.
Administrative law also covers the structure and powers of administrative and quasi-administrative agencies. This
emphasis on organizational study is only necessary to the extent that it is required by the powers, characteristics of
actions, procedures for exercising those powers, and control mechanisms provided therein. As a result, not only
administrative agencies are included in the research. The importance of studying Organization is only emphasized to
the extent that understanding the powers and control mechanisms provided therein is required. As a result, it includes
not only administrative agencies like corporations, but also boards, universities, and other institutions in its research.

Scope of Administrative Law

Administrative law is primarily concerned with official actions that include:
 Making rules is an action.
 Adjudicatory action or rule decision action.
 The action of applying the rule.
Aside from the main action, the study also includes actions that are incidental to the main action, such as investigative,
supervisory, advisory, and declaratory actions. Administrative law also encompasses the mechanisms for keeping
administrative agencies within their bounds and ensuring that they are effectively serving individuals. The review
process is the technical name for this control mechanism.
Its scope includes the following administrative actions:
1. Writs of habeas corpus, mandamus, certiorari, and prohibition are used by courts to exercise jurisdiction.
2. Suits, injunctions, and declaratory actions are used by courts to exercise ordinary judicial powers.
3. Administrative authorities at a higher level
4. In the twentieth century, public opinion and the media were also important controls on any administration that
could not be ignored.
5. Access to justice also acts as a deterrent to bureaucratic overreach in the exercise of public power.
6. The goal of administrative law is to reconcile democratic safeguards and fair play standards with effective
government conduct in the field of administrative action.

Difference between Administrative law and Constitutional law.

There are significant differences between Administrative law and Constitutional law.
A Constitution is the supreme law of the land. No law is above the constitution and hence must satisfy its provisions
and not be in its violation. Administrative law hence is subordinate to constitutional law. In other words, while
Constitution is the genus, administrative law is a species.
Constitution deals with the structure of the State and its various organs. Administrative law, on the other hand, deals
only with the administration.
While Constitution touches all branches of law and deals with general principles relating to organisation and powers of
the various organs of the State; administrative law deals only with the powers and functions of the administrative
authorities.
Simply speaking the administrative authorities should first follow the Constitution and then work as per the
administrative law.
Reasons for growth of Administrative law.

 The concept of a welfare state- As the States changed their nature from laissez-faire to that of a welfare state,
government activities increased and thus the need to regulate the same. Thus, this branch of law developed.
 The inadequacy of legislature- The legislature has no time to legislate upon the day-to-day ever-changing needs
of the society. Even if it does, the lengthy and time-taking legislating procedure would render the rule so
legislated of no use as the needs would have changed by the time the rule is implemented. Thus, the executive
is given the power to legislate and use its discretionary powers. Consequently, when powers are given there
arises a need to regulate the same.
 The inefficiency of Judiciary- The judicial procedure of adjudicating matters is very slow, costly complex and
formal. Furthermore, there are so many cases already lined up that speedy disposal of suites is not possible.
Hence, the need for tribunals arose.
 Scope for the experiment- As administrative law is not a codified law there is a scope of modifying it as per the
requirement of the State machinery. Hence, it is more flexible. The rigid legislating procedures need not be
followed again and again.

Sources of Administrative Law:

1. Constitution- The Constitution is the creator of various several administrative bodies and agencies. It gives brief
details about the mechanism and the administrative powers granted to various authorities. The Constitution is the
supreme law of the land. Any law or act which is inconsistent with it has no force or effect. The effect of this provision
is that laws and administrative acts must comply with the Constitution. The Constitution is binding on the executive
branch of government in every sphere of administration. Constitution establishes a variety of agencies and administrative
structures to control the exercise of public power.
2. Acts and Statutes- Acts and Statutes passed by legislature are important sources of administrative law because they
elaborately detail the powers, functions and modes of control of several administrative bodies.
3. Ordinances, Notification and Circulars Ordinances are issued by the President (at Union / Federal level) and Governor
(at State level) and are valid for a particular period of time. These ordinances give additional powers to administrators
in order to meet urgent needs. Administrative directions, notifications and circulars provide additional powers by a
higher authority to a lower authority. In some cases, they control the powers.
4. Judicial decision Judicial decisions or judge-made law have been responsible for laying down several new principles
related to administrative actions. They increased the accountability of administrative actions and acted as an anchor
between the notifications, circulars etc. to be linked and complied directly or indirectly with the constitutional or
statutory provisions.

5. What do you understand by Rule Against Bias? What are the circumstances in which it will be presumed that
the approach of the authority will be biased? Discuss in light of relevant decided cases.
Read from RK’s Doc of 17 pages
6. Define the doctrine of Legitimate Expectation. What are the differences between the doctrine of Legitimate
Expectation and Promissory Estoppel? Explain
Introduction- A man must keep his promise. This is specifically true if the promise is not just a promise, but is made
with the intention that the other party will act accordingly. The principle of “Legitimate expectation” is one of several
tools that courts have introduced to consider administrative actions. It is challenging to categorise the many different
functions of administrative law. As a result, numerous ideologies and guiding principles have been developed to ensure
that the administration runs smoothly. And the “legitimate expectation” are one of the ideologies. In administrative law,
the doctrine of legitimate expectations is a key idea. The principle of legitimate expectations creates locus standi [legal
position] for victims to raise concerns or challenge the administrative actions related to a particular condition in the form
of expectations. This theory serves as a protective mechanism for the rights of a party who has been wronged based on
a “legitimate expectation”. This particular idea has typically been applied in the context of natural justice.
The Doctrine of Legitimate Expectation- The relationship between a person and a public authority is covered by this
doctrine. This doctrine states that in the absence of a “legitimate expectation,” the public authority may be held
accountable. A person can legitimately expect to be treated in a particular way by an administrative authority, based on
consistent past practice or an express promise made by the relevant authority. Even if a person does not have a legal
right under private law to receive a certain treatment from an administrative authority, they may still have a reasonable
expectation of it. A representation or promise made by the authority, including an implied representation, or a pattern of
consistent behaviour in the past may have given rise to the expectation. According to this doctrine, it is possible to hold
administrative authorities accountable if there is justified expectation. “Reasonable expectations” need not necessarily
derive from legal rights, but the principle of legitimate expectations also rest where there are expectations derived from
promises or an established practice. However, it is important to point out that the legitimate expectation must always
be true and reasonable. This doctrine requires fairness in administrative decisions arising from promises or established
practices. According to the doctrine, a public official has a responsibility when he makes an express or implied promise
that gives rise to an individual’s expectation. By taking into account all relevant factors referring to legitimate
expectation. Additionally, it places a duty on the public authority to refrain from acting in violation of a legitimate
expectation unless there is a valid public policy justification for doing so.
Origin and development of Doctrine of Legitimate Expectations in English Law- Court discusses how principle of
legitimate expectations first established in English law. In the case of Schmidt v Secretary of State for Home Affairs, the
Court of Appeal dismissed an appeal by the plaintiffs. The Court held that there had been no requirement to hear the
plaintiffs. Under the Aliens Order, 1953 the Secretary of State had the power to refuse the entry or an extension without
giving reason. The Government’s policy regarding scientology could not be challenged. The Secretary of State acted
reasonably and properly with the public interest in mind. Since the claimants did not have the right or interest or
“legitimate expectation” of which it would not be fair to deprive him without hearing what they had to say, in the instant
case there was no natural justice rules infringement.
The Court then discusses the well-known case of A.G. of Hong Kong v. Ng Yuen Shiu ((1983)
Facts: The applicant was from Macao and lived illegally in Hong Kong. In 1980, the Government of Hong Kong
announced a new policy concerning illegal immigrants from mainland China meaning that the Government would now
repatriate them back to their country. Due to the fears these immigrants expressed, the Government told them that each
would be interviewed and their cases would be considered individually. Three days later, the claimant received a
deportation order. He challenged it arguing that he had a legitimate expectation to a hearing before making the decision.
Held: In Attorney-General for Hong Kong v Ng Yuen Shiu, the Privy Council dismissed Attorney-General’s
appeal. Lord Fraser stated in his judgment that some statement or undertaking made by or on behalf of a public authority
can create legitimate expectations, as a result it had become “unfair or inconsistent with good administration” to
ignore the expectation.
This case can be regarded as a turning point in Indian discourse also because it clearly defines the doctrine’s scope by
stating that it does not involve a “crystallized right” and does not open the door to a direct claim for relief. Instead, the
doctrine can be limited to the right to a fair hearing in cases where a promise has been withdrawn or rejected. Substantial
expectations do not necessarily constitute absolute rights unless the decision maker disregards the public interest and
cannot justify withdrawal. The court also said that courts should remain within their jurisdiction and refrain from
interfering when it was a matter of policy or policy change. Consequently, legitimate expectations may result in judicial
review, but the Court’s ability to grant relief is very constrained.
Origin and development of Doctrine of Legitimate Expectations in India.
In the Indian context, the doctrine of legitimate expectation was first brought up in the case of State of Kerala v. K.G.
Madhavan Pillai ((1988) 4 SCC 669). In this case, the respondents were given a sanction that required them to upgrade
their current schools and open a new aided school, but 15 days later, an order was issued to suspending previous
sanctions. The respondents contested this Order on the grounds that it went against natural justice principles. The
Supreme Court ruled that the sanction had entitled the respondents with legitimate expectation and the second order
violated principles of natural justice.
In another Supreme Court case, Navjyoti Coop. Group Housing Society v. Union of India ((1992) 4 SCC 477),- held that
the doctrine of legitimate expectation imposes in essence a duty on public authority to act fairly by taking into
consideration all relevant factor relating to such legitimate expectation within the conspectus of fair dealing such as
reasonable opportunity to make representation by the parties likely to be affected by any change of consistent past policy.
In this case it was also held that the that person enjoying certain benefits/advantage under the old policy of the
Government derive a legitimate expectation even though they may not have any legal right under the private law in the
context of its continuance. Allotment of the land by the development authority to co-operative societies was done in the
order of seniority of such societies. The seniority was determined on the basis of the date of registration. New criteria
were laid down whereby seniority was to be determined with reference to the date of approval of the members of the
society by the registrar. The doctrine of legitimate expectation provides that the policy of government or its department
should be without discretion.
The Supreme Court elaborated on the nature of the doctrine of legitimate expectations in Food Corporation of India v.
Kamdhenu Cattle Feed Industries ((1993) 1. S.C.C. 71), the corporation invited tender for sale of damage food grains.
Kamdhenu Cattle Feed Industries bid was highest. All bidders were, however, invited by the corporation for
negotiation. Kamdhenu Cattle Feed Industries did not raise bid but filed a petition contending that since he was the
highest bidder, he ought to have been awarded the work. He relied on the doctrine of legitimate expectation. The High
court allowed the petition. Revising the decision, the SC held that negotiations were held and all bidders were afforded
equal opportunity of revising bids. Kamdhenu Cattle Feed Industries ought to have raised the bid if he was interested in
getting the contract reliance on the doctrine, on the facts of case was not well founded. SC further stated that non-
arbitrariness , fairness in action and due consideration of legitimate expectation of the affected party are the essential
requisites for a valid state action. It has also been held that whether expectation is legitimate is a question of fact which
has to be determined in the larger public interest.
Circumstances for the formation of legitimate expectation- It is important to keep in mind that the doctrine cannot
be invoked on ambiguous, irrational, invalid, or unreasonable grounds while making an argument on such grounds. This
doctrine may only be used when the administrative authority has made an explicit promise or when a standard practise
has been followed.
A similar observation was made in the case of Madras City Wine Merchants Association v. State of Tamil Nadu In the
aforementioned case, it was decided that the claimant may raise this doctrine if a public authority has made an express
promise or some other kind of representation, as long as the promise or representation is not vague, unclear, or
ambiguous, or if there is an existing previous practise that the claimant can reasonably expect to be followed in his case
as well. Additionally, this type of assumption must always be reasonable. The doctrine of legitimate expectation may be
applied and such a person may have a reasonable claim of being treated in a specific way by an administrative authority
where a person has no enforceable rights but is still affected or likely to be affected by the order passed by a public
authority.
In National Buildings Construction Corporation v [Link] ((1998) 7 SCC 66)- Respondents were sent on duty
for an international project that NBCC (Government Company) planned to carry out in Iraq. The respondents made the
decision to receive a salary on the same level as a Central P.W.D. employee, as well as a deputation allowance. Their
basic pay was revised, but they were also given a foreign allowance at 125% of the basic pay. They argued that this
allowance ought to be paid from the updated pay scale. The allegation of legitimate expectations was denied by NBCC.
The court agreed with the ruling that such promises and agreements were not carried out by NBCC. In explaining the
doctrine, the Court noted that it has its roots in administrative law and that government agencies shouldn’t act arbitrarily
or under the influence of abuse of discretion.
The above case suggests that the doctrine has both substantive and procedural components. This principle aims at fair
play in the conduct of government authorities and is enforceable as a substantive right.

Conditions for a valid ‘Legitimate Expectation’- It is important to keep in mind that the doctrine cannot be invoked
on ambiguous, irrational, invalid, or unreasonable grounds while making an argument on such grounds. This doctrine
may only be used when the administrative authority has made an explicit promise or when a standard practise has been
followed. A similar observation was made in the case of Madras City Wine Merchants Association v. State of Tamil
Nadu- In the aforementioned case, it was decided that the claimant may raise this doctrine if a public authority has made
an express promise or some other kind of representation, as long as the promise or representation is not vague, unclear,
or ambiguous, or if there is an existing previous practise that the claimant can reasonably expect to be followed in his
case as well. Additionally, this type of assumption must always be reasonable. The doctrine of legitimate expectation
may be applied and such a person may have a reasonable claim of being treated in a specific way by an administrative
authority where a person has no enforceable rights but is still affected or likely to be affected by the order passed by a
public authority.
1. Express Promise- An express promise made on behalf of a public authority or the existence of a customary practise
that the claimant can reasonably expect to continue can both give rise to legitimate or reasonable expectations. The
legitimate expectation could be the result of an administrative authority’s expressly stated promise or assertion. It is
crucial to make sure that such an express promise is valid and clear, without any ambiguity or uncertainty. According to
the ruling given by the court in the Re Liverpool Taxi Owners Association. Legitimate expectations can in fact result
from an express promise made by a public body.
2. Established Practice- In the case of Council of Civil Service Unions and others v Minister for the Civil Service- It
was discovered that a legitimate expectation could result from an express declaration or promise as well as from the
existence of a consistent or accepted practise. A claimant may anticipate that such a well-established procedure will also
be applied to his case.
Types of Legitimate Expectations- Primarily, there are two types of legitimate expectations.
1. Procedural Legitimate Expectation- Such legitimate expectations arise when an individual assumes that a
governmental authority will follow a particular course of proceedings before making a decision. For instance, when a
person expected an existing policy to be followed but it wasn’t,. when a person anticipated being subjected to one policy
but was instead later subjected to another, or when a person anticipated receiving a hearing but wasn’t given one. A
person who has a legitimate expectation must be given the chance to be heard.
2. Substantive Legitimate Expectation- When a person receives a specific benefit as a result of a promise made by a
public authority, there is a substantive legitimate expectation. Despite this, it is thought that this kind of legitimate
expectation might not have a solid foundation and might falter because of a primary public interest.
Article 14 and Legitimate Expectation.- The doctrine of legitimate expectation is only applicable when the denial of
a legitimate expectation results in a violation of Article 14 of the Constitution. The Supreme Court’s division bench in
the case of The State of Jharkhand and others v. Brahmaputra Metallics Ltd., comprised of Hon. Justices Dhananjay Y.
Chandrachud and Indu Malhotra, issued this ruling. As a result, “non-arbitrariness and unreasonableness” have been
made the necessary qualifiers for determining whether or not there was a denial of a legitimate expectation. The
doctrine’s application has essentially been integrated into Article 14 of the Constitution.
Conclusion- There is no doubt that the idea of a legitimate expectation in administrative law has now acquired enough
significance. The doctrine of legitimate expectation protects not only individuals’ rights when facing administrative
action, but also the fundamental principles of natural justice, which is the basis of all laws. When a public authority
makes an explicit promise that a certain practise will continue on a regular basis, the claimant can reasonably expect
that this practise will continue in his case also. As a result, it can be concluded that the idea of a legitimate expectation
is to impose belief in citizen that, under certain circumstances he would continue to enjoy a certain set of benefits from
which he shall not be deprived unless there is some overriding public interest.

2021
1. What do you understand by theory of separation of powers? How far has been this theory adopted in the Constitution
of India? Critically examine.
According to Montesquieu, by separating the functions of the executive, legislative and judicial departments of
government, one may operate as a balance against another and, thus, power should be a check on power. Le pouvouir
arête le pouvoir- power halts power.
According to his views “When the legislative and executive powers are united in the same person or in the same body
of magistrates, there can be no liberty, because apprehensions may arise, lest the same Monarch or Senate should exact
tyrannical laws, to execute them in tyrannical manner. Again there is no liberty if the judicial power be not separated
from the legislative and the executive. Where it joined with the legislative, the life and liberty of the subject would be
exposed to arbitrary control; for the judge would be then a legislator. Where it joined to the executive power, the judge
might behave with violence and oppression.
There would be an end of everything, where the same man or same body, whether of the Nobles or of the people, to
exercise those three powers, that of exacting laws, that of executing the public resolutions and of the causes of
individuals.” In short, Montesquieu submission is the division of powers by function and the theory of came out from it
is known as separation of powers. The modern doctrine of separation of powers was a leading tenant in the political
philosophy of the 18th century.
Separation of power in Ancient India: It should be mentioned here that Separation of power is known as it has been
found by the Montesquieu and Locke but the roots are found in the Vedas. If we study the Smritis which are ancient
source of law i.e. Dharma, we find such type of separation. In Narad Smriti we trace the very principle of separation of
power. At that time Deewan was head of the Executive wing of any legacy, Senapati did a job to maintain law and order
and Kaji was the judicial head. At the same time we have to bear in mind that they all are subordinate to the King and
King was the supreme authority who makes the law and therefore he was similar to present form of legislature. In short,
what comes out is that in ancient time also there was a separation of power in one province or legacy. After all, King is
known as the supreme authority of all but the functions and powers has been separated.
United Kingdom: The famous English Jurist Blackstone supported the doctrine of Montesquieu. According to him,
“wherever the right of making and enforcing the Law is vested in the same man or in the same body of men there can
be no liberty”. During the 17th century in England Parliament exercised legislative powers. The King exercised
executive powers, and the Courts exercised judicial powers, but with the emergence of cabinet system of Government
i.e. Parliamentary form of Government, the doctrine remains no good. The renowned constitutional Bagehot observed.
“The cabinet is a hyphen which joins, buckle which fastens, the legislative part of the State to the executive part of the
State.”
According to Wade and Phillips, the doctrine of separation of powers implies:
(i) The same person should not form more than one organ of the Government.
(ii) One organ of the Government should not exercise the function of other organs of the Government.
(iii) One organ of the Government should not encroach with the function of the other two organs of the
Government.
Now the question in subject is whether this doctrine finds a place in England? In England the King being the executive
head is also an integral part of the legislature. His ministers are also members of one or other Houses of Parliament.
This concept goes against the idea that same person should not form part of more than one organ of the Government. In
England, the House of Commons controls the executive. So far as judiciary is concerned, in theory House of Lords is
the highest Court of the country but in practice judicial functions are discharged by persons who are appointed specially
for this purpose, they are known as Law Lords and other persons who held judicial post. Thus we can say that doctrine
of separation of powers is not an essential feature of British Constitution. Donoughmore Committee has aptly remarked
“In the British Constitution there is no such thing as the absolute separation of legislative, executive and judicial
powers......”
U.S.A.: Usually it is said that the principle of separation of powers finds a good mention in the Constitution of United
States; while the Federal Constitution of the United States of America does not expressly provide for the principle of
separation of powers. Having reliance on the doctrine of Montesquieu, Madison, the Federalist observed; “The
accumulation of all powers legislative, executive and judicial, in the same hands whether of one, a few or many and
whether hereditary, self-appointed or elective, may justly be pronounced the very definition of tyranny.” The same ideas
were expressed by Hamilton in 1788. In American Constitution we find that legislative, executive and judicial powers
are vested in separate entities.

 Section 1 of Article 1 declares: “All legislative powers herein granted shall be vested in a Congress of the United
State”.
 Section 1 of Article II says: “The executive power shall be vested in a President of the United States of America.”
 Section 1 of Article III reads: “The judicial power of the United States, shall be vested in one Supreme Court
and in such inferior courts as the Congress may from time to time ordain and establish.....”
India: The doctrine of separation of powers has no place in strict sense in Indian Constitution, but the functions of
different organs of the Government could not usurp the function of another. The American Constitution have been
sufficiently differentiated so that one organ of the Government could not usurp the function of another.
In Constituent Assembly Debates Prof. K.T. Shah a member of Constituent Assembly laid emphasis to insert by
amendment a new Article 40-A concerned with doctrine of separation of powers. This Article reads: “There shall be
complete separation of powers as between the principal organs of the State, viz; the legislative, the executive, and the
judicial.”
Shri K. Hanumanthiya, a member of Constituent Assembly dissented with the proposal of Prof. K.T. Shah. He stated
that Drafting Committee has given approval to Parliamentary system of Government suitable to this country and Prof.
Shah sponsors in his amendment the Presidential Executive. He further commented: “Instead of having a conflicting
trinity it is better to have a harmonious governmental structure. If we completely separate the executive, judiciary and
the legislature conflicts are bound to arise between these three departments of Government. In any country or in any
government, conflicts are suicidal to the peace and progress of the country..... Therefore in a governmental structure it
is necessary to have what is called “harmony” and not this three-fold conflict.”
Dr. B.R. Ambedkar, one of the important architects of the Indian Constitution, disagreeing with the argument of Prof.
K.T. Shah, advocated thus: The necessity of separating the executive and judiciary is unquestionable. However, unlike
the United States, where a strict separation exists between the executive and legislature, some Americans found this
arrangement too rigid. In my opinion, and that of many political science scholars, the complexity of parliamentary work
requires direct guidance and initiative from the executive members in Parliament. Therefore, I do not believe it would
be a significant loss if we do not adopt the American approach of complete separation between the Executive and the
Legislature.
The separation of powers in India is a complex and nuanced concept. While the Constitution of India establishes a
framework for the separation of powers among the executive, legislative, and judicial branches, there are instances
where these boundaries overlap.
1. Executive Powers: The President of India, as the executive head, has certain legislative powers. Article 123(1)
allows the President to promulgate ordinances when Parliament is not in session, under certain circumstances.
Additionally, during a state of emergency (as declared under Article 356), the President can exercise legislative
power to make laws to address the situation. The President also has the power under Article 372 and 372-A to
adapt or modify laws to bring them in line with the Constitution.
2. Judicial Powers: The President is involved in a judicial capacity under Article 103(1) to decide matters related
to disqualification of members of Parliament. While Article 50 emphasizes the separation of the judiciary from
the executive, in practice, the executive has a role in the appointment of judges (as per Articles 124, 126, and
127). The legislative branch, through procedures laid out in the Constitution, also has a role in the removal of
the President (Article 56).
3. Legislative Powers: The judiciary, particularly the High Courts and the Supreme Court, has the authority to
make certain rules with legislative implications. They can declare a provision of law as unconstitutional or
against public policy, leading to the need for amendments to the legal system. Additionally, in cases where the
law is silent, the judiciary can formulate principles, effectively exercising legislative functions.
In summary, while the Indian Constitution outlines a separation of powers, there are instances of overlap between the
branches of government. The executive, legislative, and judicial branches sometimes exercise functions that traditionally
belong to one of the other branches. This reflects the intricate and adaptable nature of India's democratic system.
[Link] for cases refer this link

10. Write short note on doctrine of proportionality.

Doctrine of proportionality finds its place in the Administrative Law and is used at the stage of Judicial Review. The
doctrine assets that there must be a reasonable nexus between the desired result and the measures taken to reach that
goal. The action taken must not be shockingly disproportionate to the consciousness of the court and the said action can
then be challenged by way of judicial review.
It can be better understood with the help of an illustration. Let's say, if in a workplace some workers remain absent from
their duty then the punishment for it must be proportional, that is, the employer may treat it as leave without pay and
may warn them or may even levy a fine but to dismiss them from service permanently would be disproportional.

Sir John Laws has described 'proportionality' as a principle where the court is concerned with the way in which the
decision maker has ordered his priority. Lord Diplock in [R Vs Goldstein 1983 (1) WLR 151] in a bit to explain
proportionality said: This would indeed be using a sledge-hammer to crack a nut 'Proportionality' involves a Balancing
test which keeps a check on the excessive or arbitrary punishments or encroachment upon the rights and Necessity test
which takes into account other less restrictive alternates.
Three-stage test for the application of the doctrine as follows:
 The administrative intent behind enacting the legislation is sufficient to justify the infringement of the
fundamental rights of the citizens.
 There is a reasonable nexus between the administrative intent and the measures that have been adopted so as to
fulfil the same.
 The means that have been utilised so as to limit enjoyment of rights do not amount to more than what is required
to fulfil the administrative intent.
Principle of Wednesbury Unreasonableness- Primarily, the concept of irrationality was associated with Webnesbury
unreasonableness, a principle that originated in the case of Associated Picture House v. Wednesbury Corporation (1947)
2 All ER 680 (CA).. The principle basically connotes that the discretion that has been conferred on the administration
should be exercised properly and reasonably in accordance to the law.15 Pursuant to this, matters relevant to the subject
at hand should be included and matters irrelevant to the subject at hand should be excluded from consideration while
taking administrative decisions.16 Any action in contravention to this will be considered to be unreasonable and will
attract the Wednesbury unreasonableness principle. Though no standard test for universal application can be made
applicable in case of Wednesbury unreasonableness and though the principle is somewhat vague and not capable of
objective evaluation, according to Lord Diplock: “Wednesbury unreasonableness is a principle that applies to a decision
which is so outrageous in its defiance of logic or of accepted moral standards that no sensible person who applied his
mind to the question to be decided could have arrived at it”.
Doctrine Of Proportionality In The Indian Context- The applicability of the proportionality doctrine in India was
first discussed in the case of Union of India v. G. Ganayutham (1997) 7 SCC 463.- In this case, the Apex Court opined
that the principle of Wednesbury unreasonableness would be followed in the country provided that the fundamental
rights of the citizens had not been infringed. The court, however, did not make any comment with regard to the use of
the proportionality doctrine in cases where the fundamental right of a citizen had been violated.
Thereafter, in the case of Omkumar v. Union of India AIR 2000 SC 3689., the Supreme Court recognised the
proportionality doctrine in the Indian context and also realised that the doctrine had been applied in deciding the
legitimacy of legislations, that infringed the fundamental rights guaranteed under Articles 14, 19 and 21 of the Indian
Constitution, since the 1950s onwards though the doctrine had never been explicitly referred to by the court. The
Supreme Court further held that in case of discriminatory or arbitrary administrative decisions violative of Article 14,
primary review would be carried out on the basis of the proportionality doctrine whereas secondary review would be
carried out on the basis of the Wednesbury unreasonableness principle. Additionally, the court opined that challenges
that arose pertaining to service law would be subjected to secondary review and principle of Wednesbury
unreasonableness as a result thereof because arbitrariness or discrimination under Article 14 would not be applicable in
such a scenario.

9. What are the reasons for growth of delegated legislation? Discuss.

The following are the aspects or reasons for the development of delegated legislation in India:
Reduces the Pressure on Parliament:- The area, scope, or horizon of state responsibilities are increasing every day
and making it difficult for the Parliament to make the laws on each and every matter as they are having a lot of obligations
to fulfil and they also have to make regulations on variety of matters. The Parliament is so much engaged in matters
concerning foreign policy and political issues, as a result of which it is not able to focus well on other matters or issues.
So, it only frames the extensive part of the rule, summarizes the legislation and gives that to the executive or any of it
subordinate authorities to complete their roles and responsibilities efficiently.
Technicality of the matters:- With the progress and development of the society, things have become more bitter,
complex and technical. So, to understand the technicality of each and every topic, legislature needs the expert advice or
suggestions on the specific matters and issues, who are well aware of even minute details of that matter. In order to have
a, control over such matters immense acquaintance and understanding is essential. Therefore, legislative power maybe
conferred on experts to deal with technical problems.
Provides Flexibility:- Modifications or amendments made by the Parliament are quite sluggish and it needs a procedure
that helps to make any kind of laws and this is possible by the concept of delegated legislation, as the laws can be made
with speed and efficiency with the help of the executives and other subordinate bodies. Another challenge is that, the
Parliament cannot predict the future possibilities, while enacting a law. So, to make this possible the responsibilities are
being given to other subordinates as well. So, it is essential to divide the workload with lower authorities to ensure the
completion of work in a smooth and efficiency manner.
As a part of an Experiment:- The exercise of delegated legislation empowers the Executive to do an experiment. As
every duty is new for the legislature as well and so, to ensure efficiency it has to come up with such tactics, to know
whether the made legislation is giving proper results or not. This technique or approach allows for the application of
such experience and for execution of bringing in important changes in the legislations made by the Parliament.
Emergency Situations:- In all kinds of emergency kind of situation, one should know how to deal with such problems,
rapidly without any place for obstructions and delays. The legislature does not have every skill, for providing an urgent
answer, in such crucial times, to deal with the situation of emergencies. Delegated legislation one and only way to look
after the emergency situations swiftly. Therefore, at the times of emergency and war, an executive as an organ is provided
with a wider scope to exercise its powers to deal with such circumstances.
Complex Modern Administration:- The contemporary administration have started dealing with added tasks and duties,
when it worked for ensuring improved and developed environment for the citizens such as ensuring their employment,
health, education, and other professional activities. Therefore, the complexity in the modern administration and
extension in number of states, functions towards the social and economic spheres has permitted for the establishment of
new kinds of legislations and hence, in this way, it provides wide-ranging powers and controls to varied authorities on
various instances or events.

Tribunalisation in India.
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7. Write a short note on Regulatory Authorities in India.
8. Discuss the doctrine of Separation of Powers.
9. Relevance and applicability of Reasoned Decisions in the administrative process.
10. Elucidate the various grounds of Judicial Review.
2. What are the various modes of control of delegated legislation? Elaborate in detail, procedural control of delegated
legislation in Indian context.
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3. What do you mean by rule of fair hearing? What are the different facets of fair hearing? Elucidate.
4. Define administrative discretion. What are the grounds of judicial review of decisions made in the name of
administrative discretion? Elaborate.

6. Write a detailed note on administrative tribunals in India.

7. Write a short note on speaking orders.
8. Discuss about institution of the ombudsman in India.

2020
1. What is the scope and significance of Administrative Law?
2. Elaborate A.V. Diecey’s Concept of Rule of Law and make a critical evaluation of its relevance and applicability in
present times in democratic countries.
3. Explain Audi Alteram Partem with the help of illustrative examples.
4. Explain the Rule against Bias. Also point out the various kinds of biases.
5. What are the different modes of Parliamentary Control of Delegated Legislation? Elucidate with the help of decided
cases.
6. “Principle of Rule of Law requires that there must be regularity, predictability and certainty in government’s dealing
with the public.” Explain this statement in light of relevant doctrine and case laws.

7. Separation of powers.
8. Reasoned decision.
9. Elucidate in brief, the various types of Delegated Legislation.
10. Grounds of Judicial Review of Administrative Actions.

2019
1. Describe the Nature and Scope of Administrative law. Give an account of the Development of this law.
2. “Delegated legislation is inevitable, but while making such subordinate legislation, the administrative authority has
to take care of certain principles to make them appropriate.” Explain.
3. Write an essay on the Principles of natural justice.
4. Explain the Doctrine of Legitimate Expectation.
5. Describe the Contractual Liability of the Government with the help of illustrative judicial pronouncements.
6. Point out the necessity of Administrative Discretion and exercise of this power properly.

8. RTI Act, 2005.

9. Central Vigilance Commission.
10. Doctrine of Public Accountability.

2018
1. Explain the difficulty in defining Administrative Law. What is the scope and significance of the Administrative Law?
2. The core function of delegated legislation is to perform what is fictionally called as “power to fill up the details.”
Comment and write a detailed note on other special forms of delegated legislation.
3. Explain the concept of audi alteram partem and also point out the detailed requirement of audi alteram partem range,
starting from notice to final determination.
4. Explain the theory of Separation of Power.
5. Explain the inevitability of the conferment of discretionary power on administrators and grounds of judicial review
whenever there is an abuse of it.
6. In the light of Reserve Bank of India v. Jayantilal N. Mistry (2016), explain the scope of fiduciary relationship as
ground for denial of information under Right to Information Act, 2005. Also point out other grounds on which the
information can be denied to citizens under RTI Act, 2005.

7. Contractual Liability of State.

8. Doctrine of Legitimate Expectation.
9. Sub-Delegation
10. Emergency as an exception to the Rule of Natural Justice

Establishment of a Corporation at Bombay and Calcutta– The Charter provided for the establishment of a
Corporation at Bombay and Calcutta like the one which already existed in Madras. Thus, each of the Presidency towns
was to have a Corporation consisting of a Mayor and nine Aldermen.
Civil Administration and establishment of Mayor’s Court in Presidency Towns – The Mayor and nine Aldermen of
each Corporation formed a Court of Record, which was called the Mayor’s Court’. It was empowered to decide all the
civil cases within the Presidency town and the factories subordinate thereto. The Mayor, together with two other English
Aldermen, formed the quorum.
Criminal Administration and Establishment of Quarter Sessions – The Governor and five senior members of the
Council were appointed as Justice of Peace in each Presidency for the administration of criminal justice. They could
arrest persons accused of crimes and punish them for petty offences. They also constituted a Court of Oyer. Terminer
and Gaol Delivery were also required to hold Quarter Sessions for trial of all offences except high treason at least four
times a year. The Charter of 1726 introduced the trial of criminal offences with the help of ‘Grand’ and ‘Petty’ juries.

Case laws
The doctrine of legitimate expectation
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