1.

Administrative tribunals
2. Delegated legislation
3. Judicial Review
4. Excessive Delegation
5. Definition, Nature & Scope of Administrative Law
6. Ombudsman
7. PIL in India
8. Sources of Administrative Law
9. Administrative Law vs Constitutional Law
10 Principles of Natural Justice : nemo judex in causa sua & ‘audi alteram partem’
Bias

1. Administrative tribunals
Administrative tribunals are quasi-judicial authorities that are established under an Act of the
Parliament or of State Regulations which is changed with the duty to discharge, adjudicatory functions.
So, they are bodies other than courts that perform the adjudicatory functions.

Generally, a tribunal is any ‘person’ or ‘institution’. Authority to judge, adjudicate and determine claims
or disputes whether or not have tribunals n it. Tribunals can be defined as ‘judgement seats’ or ‘court of
justice’ or ‘board or committee’ formed to adjudicate on the claim of a particular kind.

Tribunal is not originally a part of the constitution. By the 42nd Amendment Act, 1976 a new part XIV
(14-A) was included in the constitution and this part is entitled to as ‘Tribunals’ and consists of two
articles 323A and 323B. Article 323A empowers for the establishment of the Administrative Tribunal and
following the Articles of the Indian Constitution, the Parliament has passed Administrative Tribunal Act,
1985.
This Act empowers the Central Government to establish one central ‘Administrative Tribunal’ (CAT) and
the ‘State Administrative Tribunal’. Article 323B deals with the Tribunals of the other matters.

Types of Adminitrative Tribunal

There are different types of administrative tribunals, which are governed by the statutes, rules, and
regulations of the Central Government as well as State Governments. The major types of administrative
tribunals are as follows:
1. Central Administrative Tribunal (CAT)
2. State Administrative Tribunals
Other types of tribunals are:
 Customs and Excise Revenue Appellate Tribunal (CERAT)
 Monopolies and Restrictive Trade Practices Commission (MRTPC)
 Election Commission (EC)
 Foreign Exchange Regulation Appellate Board (FERAB)
 Income Tax Appellate Tribunal
 Railway Rates Tribunal
 Industrial Tribunal
Procedure and Powers of Tribunals
Section 22 of the Administrative Tribunals Act, 1985 lays down the powers and procedure of tribunals
discussed below-
1. A tribunal is not bound to follow the procedure laid down by the Code of Civil Procedure, 1908. It
has the power to regulate its own procedure but must abide by the principle of natural justice.
2. A tribunal shall decide the applications and cases made to it as rapidly as possible and every
application shall be decided after scrutinizing the documents and written submissions and
perceiving the oral arguments.
3. Tribunals have the same powers as vested by the civil courts under the Code of Civil Procedure,
1908, while trying a suit, with regard to the following subject-matter-
4. Summoning and enforcing the attendance of any person and examining him on oath;
5. Production of documents;
6. Receiving evidence on affidavits;
7. Ask for any public record or document from any office under Section 123 and 124 of the Indian
Evidence Act, 1872;
8. Issuing commissions for the examination of witnesses and documents;
9. Reviewing its decisions;
10. Deciding the case ex-parte;
11. Setting aside any order passed by it ex-parte;
12. Any other matter prescribed by the Central Government.
13. Leading Case Laws
Case: S.P. Sampath Kumar v. Union of India
Facts: The constitutional validity of the Administrative Tribunals Act, 1985, was predominantly
challenged on the ground that this Act excludes the jurisdiction of High Courts under Articles 226 and
227 with regard to service matters and hence, destroyed the concept of judicial review which was an
essential feature of the Indian Constitution.

Case: Union of India v. R. Gandhi, President, Madras Bar Association

Facts: The constitutionality of the National Company Law Tribunal (NCLT) and National Company Law
Appellate Tribunal (NCLAT) on the following grounds-
1. Parliament does not have authority to vest the judicial functions in any tribunal that have
been traditionally performed by the High Courts since so long.
2. Transferring the entire company jurisdiction of the High Court to the tribunal are violative of
the doctrine of Rule of Law, Separation of Powers and Independence of the Judiciary.
3. The various provisions of Part 1B and 1C of the Companies Act are defective and
unconstitutional, being in breach of constitutional principles of Rule of Law, Separation of
Powers and Independence of the Judiciary.

Functions of Administrative Tribunals

According to Article 323 A, the Parliament may establish administrative tribunals for the adjudication of
disputes relating to recruitment and conditions of services of persons appointed to public services of the
Centre, the states, local bodies, public corporations and other public authorities.
In other words, Article 323 A enables the Parliament to take out the adjudication of disputes relating to
service matters from the civil courts and the high courts and place it before the administrative tribunals.

Growth of Administrative Tribunals

The 42nd Amendment to the Constitution introduced Part XIV-A which included Article 323A and 323B
providing for constitution of tribunals dealing with administrative matters and other issues. According to
these provisions of the Constitution, tribunals are to be organized and established in such a manner that
they do not violate the integrity of the judicial system given in the Constitution which forms the basic
structure of the Constitution.
The introduction of Article 323A and 323B was done with the primary objective of excluding the
jurisdiction of the High Courts under Article 226 and 227, except the jurisdiction of the Supreme Court
under Article 136 and for originating an efficacious alternative institutional mechanism or authority for
specific judicial cases.
The purpose of establishing tribunals to the exclusion of the jurisdiction of the High Courts was done to
reduce the pendency and lower the burden of cases. Therefore, tribunals are organised as a part of civil
and criminal court system under the supremacy of the Supreme Court of India.
From a functional point of view, an administrative tribunal is neither an exclusively judicial body nor an
absolute administrative body but is somewhere between the two. That is why an administrative tribunal
is also called ‘quasi-judicial’ body.

Characteristics of Administrative Tribunals

The following are the few attributes of the administrative tribunals which make them quite disparate
from the ordinary courts:
1. Administrative tribunals must have statutory origin i.e. they must be created by any statute.
2. They must have some features of the ordinary courts but not all.
3. An administrative tribunal performs the quasi-judicial and judicial functions and is bound to act
judicially in every circumstance.
4. They are not adhered by strict rules of evidence and procedure.
5. Administrative tribunals are independent and not subject to any administrative interference in the
discharge of judicial or quasi-judicial functions.
6. In the procedural matters, an administrative tribunal possesses the powers of a court to summon
witnesses, to administer oaths and to compel the production of documents, etc.
7. These tribunals are bound to abide by the principle of natural justice.
8. A fair, open and impartial act is the indispensable requisite of the administrative tribunals.
9. The prerogative writs of certiorari and prohibition are available against the decisions of
administrative tribunals.

Objective for the establishment of Administrative Tribunals

The main purpose of the introduction of this act was :
1. To relieve congestion in courts or to lower the burden of cases in courts.
2. To provide for speedier disposal of disputes relating to the service matters.

Necessity and reasons for the growth of administrative tribunals

The main purpose of the introduction of this Act was:
 To relieve the congestion in the courts
 To lower the burden of the courts
 To provide for speedy disposal of the dispute relating to the service matters
 To relieve congestion in courts
 To lower the burden of cases in the courts
 To provide for speedy disposal of the dispute relating to service mandate
Necessity
 Tribunals are less expensive and procedures are not complex and formalistic as in courts.
 Tribunals are cheaper and are easily accessible to the affected person. For instance, sales tax,
tribunals, land appellate tribunals and labour tribunals etc.
 Tribunals decide all the questions subjectively on a departmental policy basis. Courts decide
objectively.
 They have experts in their panel who can dispose of the technical problems effectively or they
possess technical knowledge in a particular field like labour, revenue, excise, wages etc.
 Tribunals Act rapidly with the discretionary powers basing their decisions on the departmental
policy and other factors whereas the ordinary courts can follow the procedure and the Evidence
Act and hence take much time.
Advantages of administrative tribunals
 They offer flexibility when compared to ordinary courts.
 They are cheaper and offer speedy justice.
 The procedure followed by the Tribunals is the simplest and is easy to understand.
 They offer relief to the ordinary courts that are already over-burdened courts with various suits.
 They have their experts in the panel who specialise in a particular area like labour law, wages etc.
 They provide sufficient administrative acts and fair justice to all.

Limitations of administrative tribunals

 They consist of members and heads that may not possess any background in law.
 As they do not rely on the uniform precedence and hence may lead to arbitrary and inconsistent
decisions.

Disadvantages of administrative tribunals

 They may go against the spirit of the Rule of Law. The Rule of Law ensures that there is arbitrary
power. It is not exercised by the institutions or the individuals.
 It is the principle that everybody is subject to and accountable to laws, which are in favour of
them.
 They don’t have a uniform code of procedure whereas ordinary courts do not have a uniform
code.
 Most judges do not enjoy the same independence as enjoyed by the judges and the executives of
the courts.
 The administrative tribunals are handled by the individuals like the administrators and technical
heads who may have no experience or training in judicial proceedings.
 They hold summary trials and do not follow any procedure, so it is not possible to predict the
course of future decisions.

Challenges faced by administrative tribunals

 The functions of the administrative tribunals are not autonomous per se, as they are dependent
on the executive for the aspect of funding and appointment.
 The administrative tribunals lack the adequate infrastructure to function efficiently.
 The staff requirements of the tribunals are still unknown.
 In the Chandra Kumar case, the Supreme Court held that the appeal of the tribunal come under
the jurisdiction of the court. This defeats the whole purpose of reducing the burden of the
judiciary.
 The tribunals are chaired by the retired judges who are appointed by the government. So, due to
this reason, the present judge may show favouritism towards certain matters so that they may
be appointed as a part of the tribunal during the post-retirement.

Judicial Review of Administrative Tribunal:

Justice through tribunals is an accepted mode which is found not only in India but almost everywhere
else as well. Tribunals have proved themselves to be good contributors of justice. They can work well as
'partners' with courts, for they will be able to share the burden. They will take over the rush in certain
areas from the courts.

It is difficult to attempt a complete list of tribunals constituted under central and state legislations. But
the fact remains, their number is large and they adjudicate on a large number of disputes.

Explaining the 'fundamentals' which are necessary before a tribunal could be covered within the
meaning of article 136, the court held:" Tribunals which do not derive authority from the sovereign
power cannot fall within the ambit of Art. 136. The condition precedent for bringing a tribunal within
the ambit of Art. 136 is that it should be constituted by the State. Again, a tribunal would be outside the
ambit of Art. 136 if it is not invested with any part of the Judicial functions of the State but discharges
purely administrative or executive duties. Tribunals, however, which are found invested with certain
functions of a Court of Justice and have some of its trappings also would fall within the ambit of Art.
136.

Judicial review:
Supervisory jurisdiction of courts over the actions of public tribunals, boards, officers and public decision
makers. In some cases, parties who have been affected by decisions of tribunals, boards or other public
decision makers may approach to the courts through an application in court to have the administrative
decision reviewed by the court. The Article 13 has expanded the scope of judicial review.

42nd Amendment:
The parliamentary debates reveal detailed information on 42nd amendment relating to tribunals. Under
44th Amendment Bill clause 46 related to establishment of tribunals. The Bill did not touch the appellate
jurisdiction under article 136.The members doubted whether the Supreme Court would have jurisdiction
under article 32 to adjudicate service disputes in which fundamental rights were involved. This is not
clear by now about the jurisdiction of Supreme Court’s appellate jurisdiction.

In exercise of the power conferred by clause (i) of Article 323-A of the Constitution as inserted by the
Constitution (Forty-second Amendment) Act, 1976, Parliament enacted the Administrative Tribunals
Act, 1985.

One of the significant features of the administrative tribunals is that they have statutory origin. As an
administrative tribunal is a creation of a statute, no appeal, revision or reference lies against the
decision rendered by an administrative tribunal unless such a right has been conferred by the relevant
statute.

Provisions can also be made for ouster of jurisdiction of civil courts; and in all these cases the decisions
rendered by the tribunal will be treated as 'final'.

This statutory finality, however, is not capable of affecting the power of the judicial review of the
Supreme Court and that of the High Courts, for the power of the judicial review has the authority of the
Constitution and cannot be taken away or abridged by any statute.

If legislature provides an appellate authority, it becomes competent to substitute the decision of the
primary authority. Article 136 confers such a general jurisdiction in the Supreme Court.

Thus, appellate jurisdiction is broader than writ jurisdiction. While hearing an appeal the appellate court
may re-examine both questions of fact as well as law. An appellate court examines the matter on merits
and may modify the decision. Right of appeal is created by a statute and not inherent in a court.

The Supreme Court has elaborated the above principles in S. R. Bommai v. Union of India that in judicial
review a court is not concerned with the merits of the decision under review, but with the manner in
which the decision had been taken or the order made. In review, court does not probe the merits of the
dispute. It is no part of the duty or power of the court to substitute its decision for that of the tribunal or
the authority deciding the matter under the court’s review. In simple language, the decision of the
tribunal is not questioned, the process used to arrive the decision may be reviewed.

Limitation of the relief:

The court’s remedial jurisdiction on judicial review is limited to the powers outlined in the applicable
statute.With the exception of costs, the courts can only grant relief against the tribunal under review.
For example, a court may, as a result of an application for judicial review, order a tribunal to reconsider
a matter. However, the court cannot require an applicant to do or refrain from doing any act on an
application for judicial review.
2. Delegated legislation

Meaning of delegated legislation

‘Delegated legislation’ means exercising of legislative power by an agent who is lower in rank to the
Legislature, or who is subordinate to the Legislature. Delegated legislation, additionally alluded to as an
auxiliary legislation, is an enactment made by an individual or body other than Parliament. Parliament,
through an Act of Parliament, can allow someone else or some body to make enactment.

According to Sir John Salmond, “Subordinate legislation is that which proceeds from any authority other
than the sovereign power.”

Justice P.B Mukherjee also observed about delegated legislation that it was an expression which covered
a multitude of confusion. He viewed it as an excuse for the Legislature, a shield for Executors and a
provocation to the Constitutional Jurist.

According to M.P Jain, this term can be used in two senses:

 Exercise by subordinate agency or agency that is lower in rank to legislature delegated to it by the
Legislature.
 The Subsidiary rules made by the Subordinate Authority in the execution of the power bestowed on it
by the Legislature.

Delegated legislation is, referred to as Subordinate, Ancillary, Administrative legislation, and Quasi-
Legislation.

Judicial control over delegated legislation

The delegated legislation can be challenged in India in the courts of law as being unconstitutional,
excessive and arbitrary. It can be controlled by the Judiciary on two grounds i.e., firstly, it should be on
the ground of substantial ultra vires and secondly, it should be on the ground of procedural ultra vires.
The criteria on which the law made by the executive can be considered as void and null by the court is
that it should not be considered inconsistent by the constitution or ultra vires the parent act from which
it has got the power of making law. The power of examining the delegated legislation in India has been
given to the Supreme Court and the High Court and they play an active role in controlling the delegated
legislation.

Judicial control over delegated legislative is exercise at the following two levels:
1. Challenging the delegation as unconstitutional
2. Improperly exercise of Statutory power.

No delegated legislation can survive clashing with the provisions granting Fundamental Rights. If any
Acts violate the fundamental rights then the rules, regulations, and by-laws framed under it cannot
survive. In India as well as in America the judicial control over the delegated legislation is based on the
doctrine of ultra vires.

Cases that illustrate the Judicial control over the executives

Kruse v. Johnson The court laid down in the case that by-laws would be unreasonable on the following
ground.
 It should not be partial or unequal
  It should not be manifestly unjust
 It should not disclose bad faith
 It should not involve oppressive interference with the right of the people that it could find no
justification in the mind of the reasonable person.

Delhi Law Act Case In this case the power is given to the Central Government through an act to repeal
the pre-existing law held to be ultra vires.

Chintaman Rao’s Case: Prohibition of making bidis in the agriculture season by the Deputy
Commissioner is violative of Article 19(1)(g) of the Indian Constitution.

Chandran v. R: It was held in this case that if the power of by-laws entrusted in the hands of the
Legislature, then it must be within the limits of the Legislature and if it exceeds the limit then this by-
laws can be struck down.

Control of Delegated Legislation

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

Parliamentary or Legislative Control

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

Procedural and Executive Control

There is no particular procedure for it until the legislature makes it mandatory for the executive to
follow certain rules or procedure.
To follow a particular format it may take a long time which will definitely defeat the actual objective of
the act. Hence, procedural control means that under Parent act certain guidelines are given which need
to be followed while whether it is mandatory or directory to follow it or not. It includes three
components:
1. Pre publication and consultation with an expert authority,
2. Publication of delegated legislation.
3. Laying of rules.

It can be either Mandatory or Directory, to know, certain specified parameters are given:
1. Scheme of the Act.
2. Intention of Legislature.
3. Language used for drafting purpose.
4. Inconvenience caused to the public at large scale.
And these four parameters were given in the case Raza Buland Sugar Co. vs. Rampur Municipal
Council.

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

Factors responsible for the rapid growth of Delegated Legislation

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

And so, therefore for immediate and suitable actions to be taken there has been an immense growth of
delegated legislation in every country and being that important and useful it becomes a non-separable
part in the modern administrative era.

Types of Delegated Legislation

Delegated legislation means giving power or authority to someone lower than his rank to make laws. So
there can be many ways in which this excess of power can be given to subsidiary rank people or an
Executive. These types are as follows:

 Orders in Councils: This type of Delegated legislation can be given by Queens or the Privy Councils.
This Delegated legislation allows the Parliament to make laws without going through the
Parliamentary proceedings. Today, its main use is that it gives legal effect to European directives.
When the order issued under the privilege of the Queen or the Crown such order is subject to
review by the courts. But order issued by the Parliament may or may not be subject to review by
 the courts as it is made within the prescribed limits Act of Parliament. In both the case the question
can arises that if this legislation is the same as the Executive legislative. The answer to this question
is yes, it is equivalent to executive legislative. There is no major difference between these orders
and Executive legislative almost they both are same. The meeting of Privy council in such case could
simply means a meeting of some Privy Councillors which includes three or four ministers, President,
Councils and Clerk of Privy Councils. This shows that this order is issued by the Executive who
exercises powers of the Council.

 Rules of the Supreme Court and the County Courts: The Parliament by statutes bestow some
persons or authority with the power to make laws for a specific purpose. But it is different in
England where a Court has been given wide power to make laws. This task of making law has been
entrusted upon the Rules Committee of the Supreme Court and the County Courts. Entrusting
Judicial branch to control its Procedural law to a great extent has an advantage as it is given to that
authority who knows better about it than any person. Procedure and cost that are drawn by Rules
Committee of County Courts deals by the County Courts itself. Such rules are not subject to the
control of Parliament. When these rules used to come into force? It comes into force when the Lord
Chancellors with the consent of the Rules Committee of the Supreme Court confirms it.

 Departmental or Executive instructions or regulations: When the power of legislature directly

delegated to the administration such as a Board, Ministers or a Committee, then the exercise of that
given power results in delegation through Departmental or Executional Instructions or Regulations.
Sometimes very wide powers are given to the administration or the delegated person. But this wide
delegation of legislation is not accepted by the judiciary as it is difficult for them to control
administrative action. There is extensive use of this delegated legislation in today’s world.
Nowadays only the broad line of making legislation is in the hands of Parliament and the rest power
is given to the Administrator.

 Delegated legislation by laws: It can be given in two ways, firstly, it can be given by laws of
autonomous bodies, e.g., Corporation and secondly, it can be given by-laws of a local authority.

1. By-laws of autonomous bodies: These autonomous bodies have got the power to pass by-laws
on matters affecting them and other people in that locality or people residing in a particular area.
For example, they can make laws as public utility authorities for light, water, etc. Usually, these
authorities are given the power to make rules for regulating their working. Such by-laws are
subject to judicial review. It can be reviewed to check that it must not be ultra vires the Parent
Statute. These autonomous bodies have the power to frame rules for themselves. One more
example of this autonomous body is an association of Employers. The rules of these association
are termed as voluntary but this is not so in reality. It is fictitious as in its effect these rules are
binding upon members like other rules such as rules of a professional association, industrial
organisation, etc.

2. By-laws of the local authority: Parliament has the power to make new local bodies or it can alter
the existing body. It empowers such body with powers to make by-laws for themselves for specific
purposes. These authority exercises excess power for public health, safety, and for good rule and
governance. These by-laws incur a penalty on its breach.

Limitations on the delegation of powers-The cardinal principles of Constitutional law impose certain
limitations on the delegation of powers in the following matters, among others, namely:

1. Penal law-No act or activity should be declared as offence and made punishable by a rule or
regulation made under the delegated authority. Where this is done, express authority should be given
and the limits to such authority should be clearly in the Act itself.
2. Retrospective operation-The rule should not be given retrospective operation. Giving a rule any
retrospective effect is essentially a legislative act. In any case, no rule should operate from any date
anterior to the date of the commencement of the Act under which it was made.

3. Execution of jurisdiction of courts-The subject matters jurisdiction of the court and the
administration of justice purely legislative in character and the administrative body would not have
power to effect any alteration in the jurisdiction of any court of law by ordaining that
(i) the court shall not take up any particular category of cases, or
(ii) the jurisdiction of any court shall be barred particular type of cases.

4. Monetary and financial matters-The monetary and financial matters should be dealt with by the
Lower House of the Legislature. It is desirable in the interest of the public that such matters are dealt
with by the House itself. Even when such power is given to the executive authority on special grounds,
the rule should not operate before it is approved by the affirmative procedure of the legislature.

5. Compensation-Under Article 31 (2) of the Constitution of India,

(i) the principles on which the compensation is to be determined, and
(ii) the manner in which the compensation is to be determined,
in respect of any property compulsorily acquired or requisitioned for a public purpose, should be
provided by a law. Since such determination is an essential legislative function, the Legislature itself
should enact such a law.

6. Taxation-Under Article 265 of the Constitution, no tax shall be levied or collected save by the
authority of law. The expression 'law' therein does not include the statutory rules. Therefore, no tax
should be levied or enhanced by means of rules. But when delegation becomes inevitable, the power
should never be unlimited and
(i) specific conditions for its exercise,
(ii) things to be taxed,
(iii) the range of rates, etc.
should be clearly laid down.

Where, within the strict limits, the power to work out the details relating to the administration of the
taxation laws, such as
(i) selection of persons on whom the tax should be levied,
(ii) rates at which such tax should be levied within the definite limits,
is being given, that practice seems to have the grudging approval of the courts of law.

Sub-delegation
The skeleton legislation which means augmenting delegation of the legislative power to the Executive
and the administrative bodies, also gives rise to sub-delegation of such powers, which consists in
delegation made by the delegate of the Legislature. The Government authorities to sub-delegate the
power to make orders under law conferred on it if desirable, may not exercise itself and may pass on to
(i) any of its officers, or
(ii) any subordinate authority, or
(iii) another government, or
(iv) Officers of such other Government.

The selection of the authorities who are to exercise the power to be done by the Government which,
while making sub-delegation, may give such direction or specify such conditions or restrictions as it may
deem fit.

Two notable instances of sub-delegation of legislative power are under the following Acts :
(i) The Defence of India Act, 1939;
 (ii) The Essential Supplies Act, 1946;
(iii) The Preventive Detention Act, 1950; etc.

The necessity or the existence of sub-delegation is supported, among others, on the following grounds:

(i.) Power of Delegation contains within itself the power of delegation and, therefore, logically, the
delegates from the Legislature must also have the power of delegation as part of the power
delegated to him; and
(ii.) Sub-delegation is ancillary to delegated legislation, and any objection to this second delegation is
sub-version of the rights which the legislature delegates to the Government.

The practice of sub-delegation is opposed mainly on the basis of the maxim delegatus non potest
delegare, which firstly has no constitutional sanction and, secondly, is of limited application inasmuch as
it applies only to cases in which the Legislature has not, expressly or by necessary implication, provided
for sub-delegation. It will not apply to cases where sub-delegation is statutorily permissible.

When there is no statutory sanction, it occurs in the following two ways:

(i) The rule-making authority may not exercise the delegated power itself but may appoint a deputy to
act on its behalf.
Whether in these cases the actions of the rule-making authority can be said to be ultra vires on
the basis of the above said maxim, is not easy to say.

(ii) The rule-making authority may confer, in the rule, the power to modify and list or schedule made
under the rules on itself or on subordinate authority.

Sub-delegation is constitutionally undesirable because once that principle is accepted at one stage, it
cannot be objected to at another stage and the result will be that the delegated power may trickle down
to the lower executive officers-from the Minister to the Secretary, from the Secretary to his deputies
and so on. But as it is not forbidden and has received judicial approval in certain hard cases of
emergency or temporary legislation, it cannot be overlooked. But it becomes necessary to keep it under
control. The parliamentary control is too remote in its case as it is not possible that orders of a sub-
delegate be placed on the Table of the Houses of Parliament. Therefore, this can be better controlled by
judicial review by applying the rule of ultra vires doubly-

(i) It must be intra vires the statute, and

(ii) It must also be intra vires of Rules, if any, made by the delegate.
It must be in conformity with the directions and conditions prescribed the principal delegate.

3. Judicial Review

Court and Tribunals

There is a slight contrast between the tribunals and courts yet a similar way they additionally have a few
similitude's too. A portion of these similitude's are the two of them are represented by the State, have
legal powers and are not temporary. These two are adjudicating bodies made to deal with the disputes,
yet the two of them are not the same as one another. The contrast between them makes them two
distinct governing bodies.

A court of law is the fundamental thing of the judicial system, and the State gives judicial power to the
court. The civil court has the intensity of the legal executive to settle the issues of civil nature into the
trial. These courts can't attempt the cases which are barred by the State while choosing the case the
appointed authorities are liberated from the executive.

The Officer adjudicating the claim needs to adhere to legal guidelines and procedure in the court as the
cases in court is decided based on the precedent, principle of estoppel and other laws as determined by
the Constitution. Whereas, the Tribunal is an agency formed by the statute. The Tribunal is an executive
part of a state which performs judicial and administrative functions. The tribunals are term as a semi-
legal body administered by the State.

These councils can arbitrate particular type of cases according to the Statutes. These cases are to be
settled by the Administrative Tribunal under the authority of the official executive. These tribunals don't
have the proper prescribed rules as it follows the principle of natural justice. These tribunals don't have
the appropriate prescribed rules as it follows the principle of natural justice.

The members of Tribunal are expertise in the field of administration as they do not have the uniform
training of law. The principles of law are not followed by administrative Tribunal harshly. These tribunals
cannot decide 'vires' of the suit though the court can. In this way, both the Court of Law and Tribunal is
not the same as one another as they play out similar function various manners.

 Judicial Review:

o It is a type of court proceeding in which a judge reviews the lawfulness of a

decision or action made by a public body.

 In other words, judicial reviews are a challenge to the way in

which a decision has been made, rather than the rights and
wrongs of the conclusion reached.
 Concepts of Law:

 Procedure Established by Law: It means that a law

enacted by the legislature or the concerned body is
valid only if the correct procedure has been followed
to the letter.
 Due Process of Law: It is a doctrine that not only
checks if there is a law to deprive the life and
personal liberty of a person but also ensures that the
law is made fair and just.
 India follows Procedure Established by Law.
o It is the power exerted by the courts of a country to examine the actions of
the legislatures, executive and administrative arms of government and to
ensure that such actions conform to the provisions of the nation’s
Constitution.
o Judicial review has two important functions, like, of legitimizing government
action and the protection of constitution against any undue encroachment by
the government.

 Judicial review is considered a basic structure of the

constitution (Indira Gandhi vs Raj Narain Case 1975).
 Judicial review is also called the interpretational and observer
roles of the Indian judiciary.
 Suo Moto cases and the Public Interest Litigation (PIL), with the
discontinuation of the principle of Locus Standi, have allowed the
 judiciary to intervene in many public issues, even when there is
no complaint from the aggrieved party.
 Types of Judicial Review:

o Reviews of Legislative Actions:

 This review implies the power to ensure that laws passed by the
legislature are in compliance with the provisions of the
Constitution.
o Review of Administrative Actions:

 This is a tool for enforcing constitutional discipline over

administrative agencies while exercising their powers.
o Review of Judicial Decisions:

 This review is used to correct or make any change in previous

decisions by the judiciary itself.
 Importance of Judicial Review:

o It is essential for maintaining the supremacy of the Constitution.

o It is essential for checking the possible misuse of power by the legislature and
executive.
o It protects the rights of the people.
o It maintains the federal balance.
o It is essential for securing the independence of the judiciary.
o It prevents tyranny of executives.
 Problems with Judicial Review:

o It limits the functioning of the government.

o It violates the limit of power set to be exercised by the constitution when it
overrides any existing law.

 In India, a separation of functions rather than of powers is

followed.
 The concept of separation of powers is not adhered to strictly.
However, a system of checks and balances have been put in place
in such a manner that the judiciary has the power to strike down
any unconstitutional laws passed by the legislature.
o The judicial opinions of the judges once taken for any case becomes the
standard for ruling other cases.
o Judicial review can harm the public at large as the judgment may be influenced
by personal or selfish motives.
o Repeated interventions of courts can diminish the faith of the people in the
integrity, quality, and efficiency of the government.
Constitutional Provisions for Judicial Review
 There is no direct and express provision in the constitution empowering the courts to
invalidate laws, but the constitution has imposed definite limitations upon each of the
organs, the transgression of which would make the law void.
 The court is entrusted with the task of deciding whether any of the constitutional
limitations has been transgressed or not.
 Some provisions in the constitution supporting the process of judicial review are:

o Article 372 (1) establishes the judicial review of the pre-constitution

legislation.
 o Article 13 declares that any law which contravenes any of the provisions of the
part of Fundamental Rights shall be void.
o Articles 32 and 226 entrusts the roles of the protector and guarantor of
fundamental rights to the Supreme and High Courts.
o Article 251 and 254 states that in case of inconsistency between union and
state laws, the state law shall be void.
o Article 246 (3) ensures the state legislature’s exclusive powers on matters
pertaining to the State List.
o Article 245 states that the powers of both Parliament and State legislatures
are subject to the provisions of the constitution.
o Articles 131-136 entrusts the court with the power to adjudicate disputes
between individuals, between individuals and the state, between the states
and the union; but the court may be required to interpret the provisions of the
constitution and the interpretation given by the Supreme Court becomes the
law honoured by all courts of the land.
o Article 137 gives a special power to the SC to review any judgment
pronounced or order made by it. An order passed in a criminal case can be
reviewed and set aside only if there are errors apparent on the record.
Way Forward
 With the power of judicial review, the courts act as a custodian of the fundamental rights.
 With the growing functions of the modern state, judicial intervention in the process of
making administrative decisions and executing them has also increased.
 When the judiciary surpasses the line of the powers set for it in the name of judicial
activism, it could be rightly said that the judiciary then begins to invalidate the concept of
separation of powers set out in the Constitution.
 Making laws is the function and duty of the legislature, to fill the gap of laws and to
implement them in a proper manner is responsibility of the executive. So that the only
work remaining for the judiciary is interpretations. Only a fine equilibrium between these
government bodies can sustain the constitutional values.

4. Excessive Delegation:
In course of time, through a series of decisions, the Supreme Court has confirmed the principle that the
Legislature can delegate its legislative power subject to its laying down the policy. The Legislature must
declare the policy of the law, lay down legal principles and provide standards for the guidance of the
delegate to promulgate delegated legislation, otherwise the law will be bad on account of “excessive
delegation”.

The Indian Legislature cannot delegate unrestrained unanalyzed and unqualified legislative power on an
administrative body. The Legislature can delegate legislative power subject to the condition of laying
down principles, standards and policy subject to which the delegate is to exercise its delegated
legislative power. In case the Legislature fails to do so, the law made by it delegating, legislative power
would be invalid. Delegation is valid only when it is confined to legislative policy and guidelines. It is
equally well settled that a delegate must exercise its jurisdiction within the four corners of its
delegation.

It has been held in Sitaram Vishambhar Dayal v. State of UP, whether a power delegated by the
legislature to the executive has exceeded the permissible limits in a given case depends on its facts and
circumstances. The question does not admit of any general rule. It depends upon the nature of power
delegated and the purpose intended to be achieved.
In applying the test of “excessive delegation”, apart from considering the breadth of the discretion
conferred by an Act to promulgate delegated legislation, the courts also examine the procedural
safeguards contained in the Act against misuse of power, as for example, laying of the ruled before the
Legislature, Consultation with the interests affect. A completely unlimited blanket power where there is
neither any guidance to the delegate, nor any procedural safeguards against improper exercise of power
by the delegate, can be held invalid as excessive delegation.

A case in point is H.R. Banthia v. Union of India. Section. 5(2)(b) of the Gold (Control) Act, 1968
empowered the Gold Administrator, so far as it appeared to him to be necessary or expedient for
carrying out the purposes of the Act, to regulate the manufacture, distribution, use, disposal,
consumption, etc., of gold. The Supreme Court declared the provision invalid because it was very wide
and suffered from the vice of “excessive delegation”.

The Supreme Court has stated in Mahe Beach Trading Co. v. Union Territory of Pondicherry that if
there is abdication of legislative power, or there is excessive delegation, or if there is a total surrender or
transfer by the Legislature of its legislative functions to another body, then that is not permissible. There
is, however, no abdication, surrender of legislative functions or excessive delegation so long as the
Legislature has expressed its will on a particular subject matter, indicated its policy and left its
effectuation to subordinate legislation, provided the Legislature has reteamed the control in its hand
with reference to it so that it can act as a check or a standard and prevent or undo the mischief by
subordinate legislation when it chooses to or thinks fit.

In a large number of cases the courts have considered the validity of various delegating provisions with
reference to the doctrine of excessive delegation. Some of these cases are noted below. The cases have
been classified from the point of view of the nature of the power conferred under the following broad
heads:
(i) skeleton legislation;
(ii) power of inclusion and exclusion;
(iii) power of modification of the statute; and
(iv) removal of difficulties;
(v) power to impose tax.

(A) SKELETON LEGISLATION

In Bhatnagars & Co. v. Union of India, was involved S. 3(l)(a) of the Imports and Exports (Control) Act,
1947 authorizing the Central Government to prohibit or restrict the import or export of goods of any
specified description by order. The statute is skeletal and gives no indication as to what considerations
and policies are to be kept in view by the Government in controlling imports and exports. The whole
regulatory process over import and export of goods has been developed by the Administration through
delegated legislation under this statutory provision. The Supreme Court upheld the statute as valid
arguing that the underlying policy was to be found in the preceding statute, the Defense of India Act,
1939, whose provisions the statute i question purported to continue.
Further, the Defense of India Act was itself a skeletal piece of legislation. The whole complexion of
import and export control has changed in Independent India and differs very much in details and
fundamental approach from what it was in the 1940’s.

In Makhan Singh v. State of Punjab, the Supreme Court upheld, against the attack of excessive
delegation, S. 3 of the Defense of India Act, 1962. S. 3 empowered the Central Government to make
rules, as it “appeal expedient” to it, for Defense of India and maintenance of public order and safety.

(B) POWER OF EXCLUSION AND INCLUSION

A common legislative practice is to confer power on the Government to bring individuals, bodies or
commodities within, or to exempt them from, the purview of a statute. Several formulae are in vogue
for the purpose.
A usual legislative formula is to say that the Act applies to the items mentioned in the schedule annexed
but Government has power to alter the schedule by adding thereto or removing therefrom some items.
Thus, the range of operation of the Act can be expanded or reduced by making alterations in the
schedule through delegated legislation. To some extent, this provision involves delegation of power to
modify the parent Act, but invariably such a provision has been upheld as valid.
The Minimum Wages Act, 1948 has been enacted, as stated in its preamble, “to provide for fixing
minimum wages in certain employments”. The Act applies to employments mentioned in the schedule,
but Government is given power to add any other employment thereto and, thus, to extend the Act to
that employment.
The Act lays down no norms on which Government may exercise its power to add any employment to
the schedule. Nevertheless, in Edward Mills Co. v. State of Ajmer, the Supreme Court upheld the
provision arguing that the policy was apparent on the face of the Act which was to fix minimum wages in
order to avoid exploitation of labour in those industries where wages were very low because of
unorganized labour or other causes.

(C) REMOVAL OF DIFFICULTIES

Statutes usually contain a removal of difficulty clause, nick-named in Britain as the Henry VIII clause
because “that king is regarded popularly as the impersonation of executive autocracy”.
The provision is used usually when the Legislature passes a statute implementing a new socio-economic
scheme. Not being sure of what difficulties may crop up in the future implementation of the provisions
of the law, the Legislature introduces therein a “removal of difficulty” clause envisaging that
Government may make provisions to remove any difficulty that may arise in putting the law into
operation.
Generally, two types of “removal of difficulty” clauses can be identified in the Indian statutes:
(a) A narrow power under which “power to remove difficulties” has to be exercised consistent with
the provisions of the parent Act. In such a case, the Government cannot modify any provision of
the statute itself.
(b) The other, a broader version, may authorize modification of the parent Act, or any other Act, in
the name of removal of difficulties. Usually, such a power is limited in point of time, say two or
three years. In principle, such a power is objectionable as it vests a vast arsenal of power in the
Executive.

5. Nature & Scope of Administrative Law.

Definition:
Administrative Law is that branch of law that deals with powers, functions & responsibilities of various
organs of the State. There is no single universal definition of ‘administrative law’ because it means
different things to different theorists.
K. C. Davis defines Administrative Law is the law concerning the powers and procedures of
administrative agencies, including especially the law governing the judicial review of administrative
action.
Administrative law is the branch of the law governing the relationship between the individual and
the executive branch of the government when the latter acts in its administrative capacity.
Ivor Jennings defined administrative law as the law relating to administration. It determines the
organization, powers and duties of administrative authorities.
Administrative law deals with the powers of administrative authorities the manner in which the powers
are exercised and the remedies which are available to the aggrieved persons, when those powers are
abused by these authorities.
Primary function of administrative law is to keep governmental powers within the limits of law and to
protect private rights and individual interests.
Rule-making power (delegated legislation) and an authority to decide (Tribunal/Court) are described as
effective and powerful weapons in the armory of administration.
As Wade observed, all power have two inherent characteristics:
(i) They are not absolute or unfettered.
(ii) They are likely to be abused.
Administrative law attempts to control the power of the government, and its instrumentalities and
agencies. To achieve that objective, administrative law provides an effective mechanism and adequate
protection. It helps to strike between two conflicting force:
(i) Individual rights
(ii) Public interest.

Nature of Administrative Law

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

Scope of Administrative Law

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

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

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

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

Delegated legislation, indispensability, permissibility and constitutionality, modes of delegation,
procedural formality required to be observed by an administrative agency, safeguard against abuse of
power and judicial control.
In respect of judicial functions, it covers the judicial function of administrative agencies, Administrative
Tribunal, procedural guarantee, the finality of the decision, the jurisdiction of the Supreme Court and
the High Court over the administrative agencies and Tribunals.
It also includes immunities of administrative agencies and bodies from suits and remedies available
against the Union of India and the State instrumentalities.

Administrative Law and Constitutional Law

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

Importance of Administrative Law

Administrative law plays an important role in changing the era of the administrative system. It can be
understood with the help of the following points:
In Changing Nature of State: The Police State has changed to Welfare State in the 20th Century. The
traditional functions of the State i.e. defence and administration of justice have undergone a drastic
change. The State undertakes various functions for the benefit of the people in the 20th century.
To Remove the Shortcomings of the Judicial System: The judicial system has proved to be inadequate
to decide all types of disputes. It was slow, expensive, complex, and having various other drawbacks that
lead to the enhancement of the importance of administrative law.
Remove the Inadequacy of Legislative Process: The legislative process is not capable of laying down
detailed rules and regulations for the functioning of the State. Thus, administrative law helps in
removing this issue.
Reform in Social Life: The social aspect has undergone a drastic change amongst the citizens of the
State. More and more laws were required to deal with complex situations in the daily life of citizens.
Increasing Demand from People: Merely defining the right of citizens was not sufficient, but also solving
their problem was important for the State.

Enhance the Scope for Experiment: The present law-making process is time-consuming and cannot deal
with all problems of the society. Therefore, it is necessary for a different aspect of making laws.
Preventive Measures: Administrative authorities also implement preventive measures like licensing to
liquor shops, rate fixing, etc.
State Economy: The administrative authorities frame national policies and plans for achieving goals
contemplated in the Constitution of India.
Regulatory Measures: Administrative authorities implement regulatory measures in relation to
industrial production, manufacturing, and distribution of essential commodities.
Industries: Industrialization leads to various labour issues. The administrative machinery was needed to
solve such issues.

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.
Functions of Administrative Law:
The primary function of administrative law is to keep governmental powers within the limits of law and
to protect private rights and individual interests. As already noted, the scope of activities of the
government have expanded. Today the state is “ the protector, provider, entrepreneur, regulator and
arbiter”. Rulemaking power and an authority and an authority to decide are described as effective and
powerful weapons of administration. All powers have two inherent characters 1) they are not absolute
or unfettered, and 2) they are likely to be abused. Administrative law attempts to control the powers of
the government, and its agencies. To achieve the object Administrative law provides an effective
mechanism and adequate protection. It helps to bring a balance between two conflicting forces
individual rights and public interest.

6. Ombudsman: -

The institution of 'ombudsman' came into existence in some countries to "register a small man's battle
against red tape and administrative injustice". Sweden tried it in 1809 first against the monarch and
then against the administration. It was copied by Finland in 1920, by Denmark in 1955 and by Norway
and NewZealand in 1962. Ombudsman literally means "a delegate or agent". In Sweden, Denmark and
Norway, he is chosen by the parliament and in consequence responsible only to that body. He watches
the public servants and sees that they do not injure the tax-payer. His office is a kind of national
Complaints Department. He can act very quickly and afford immediate redress. Naturally enough he is
endowed with enormous powers. He can seize State files and call even the Prime Minister to account.
He could seek to prosecute any official for good cause shown. In Sweden and Finland, he could take
steps even against the judges, although of course he could not reverse their decision.

Usually the ombudsman is a lawyer, professor or judge with no political or financial axe to grind. He is
paid very well and is elected for a four year term. He makes a detailed annual report of the parliament
and he sets out the reactions of people against the Government, their complaints against it together
with his recommendations for elimination the causes for the complaints. One important safeguard is
that all his decisions are published in the daily press. Naturally he is most popular personality, and he
becomes more so because he can interfere even in matters which are not investigated by the police.

In England, public opinion is growing that the common law has grown too old and stiff to deal with the
modern invasion of the rights of citizen by administrative powers which have assumed 'frightening'
propositions. It is being felt that a checking agency over the administrative authorities is necessary. A
committee was appointed called the Wyatts Committee by the international Commission of jurist and it
recommended, in the course of a very comprehensive report, the institution of a Parliamentary
Commissioner similar to the Ombudsman but the Government rejected the suggestion altogether on the
ground that it would conflict with the doctrine of ministerial responsibility.

In India, there is a paramount need of a powerful institution similar to that of an ombudsman to check
the growth of administrative lawlessness and corruption which is eating into the very vitals of the
nation. But it is doubtful whether such an institution is feasible because it may strike at the root of
ministerial responsibility, and some of the privileges and immunities enjoyed by the high officials may
also be called in question. Nevertheless in a big country like India, it will be better, if instead a council of
elders is set up to look into the irregularities of the administration.

The ombudsman (Lok Pal) can entertain a complaint from any person other than a public servant. The
bill has empowered the Lok Pal to require a public servant or any other person to give such information
as may be desired or to produce such documents which are relevant for the purpose of investigation.
The Lok Pal shall have the power of a Civil Court under the C.P.C., 1908 for the purpose of summoning
witness, etc. for securing evidence..

In office of Lokayukta v. Govt. of N.C.T of Delhi, , the case is that of inquiry by Lokayukta against public
functionary for summoning of records. The court observed that the provisions authorizing the Lokayukta
to decide his procedure and power to summon the record, does not require issuance of notice to the
public functionaries before summoning the records so as to satisfy himself that there is sufficient
material to proceed against the public functionaries.

Lokayukta
The institution of Lokayukta has been established in several States by enacting statutes. In some States
Uplokayuktas have also been appointed.

In States in which Lokayukta has been established by enacting statute includes the States of U.P., Bihar,
H.P., Karnataka, Andhra Pradesh, Maharashtra, Orissa, Rajasthan, Gujarat, etc. The provisions of these
statutes are not same. However, the Lokayuktas have been given jurisdiction over the Ministers, public
servants and officers in all States. In Karnataka, Himachal Pradesh and Orissa, he has been given
jurisdiction over the Chief Minister also. In Maharashtra, Bihar, U.P. and Rajasthan, Lokayukta has not
been given jurisdiction over ex-ministers and ex-secretaries.

All India Conference of Lokayuktas and Uplokayuktas held at Simla in 1986 has made the following
suggestions for the improvement of the institution:

(a.) The institution of Lokayuktas and Uplokayuktas should be given a constitutional status.
(b.) Along with the ministers and public servants in office, the ex-ministers and ex-public servants
concurred in regard to the action complained against should also expressly be brought within
their purview.
(c.) The jurisdiction of the Lokayuktas and Uplokayuktas should extend not only to the allegations
and corrupt practices but also to the grievances and maladministration as defined in the Central
Lokpal and Lokayukta Bill of 1968.
(d.) In every State its nomenclature should be "Lokayukta."
(e.) The service conditions of the Lokayuktas and Uplokayuktas should be uniform throughout India.
(f.) There should not be provision for security deposit for making complaint before the Lokayuktas
and Uplokayuktas.
(g.) There should be a separate independent agency under the direct control of the Lokayuktas or
Uplokayuktas.
(h.) The Lokayukta or Uplokayukta should be given power to sanction search and seizure within the
meaning of the Code of Criminal Procedure.
(i.) Lokayuktas and Uplokayuktas should be empowered to investigate suo motu.
(j.) The Lokayukta and Uplokayukta should be deemed to be a High Court within the meaning of the
Contempts of Court Act.
(k.) The Lokayuktas and Uplokayuktas should be given discretion to dispense with the requirements
of filing an affidavit with the complaint.
(l.) The Representation of People's Act and similar other Central and State enactments should be
amended to enable the authorities concerned to take into consideration the finding and
recommendation of the Lokayuktas and Uplokayuktas in respect of persons holding effective
offices.
(m.) A time limit should be prescribed for placing the special and annual reports by the Governor
before the House of Legislature and this time limit should not exceed 4 months from the date of
the receipt of the Report by the Governor or till the Legislature meet next, whichever is earlier.
7. PIL :

Introduction:

In India, over the last three and half decades or so, the mechanism of Public Interest Litigation has
come to be recognized as a characteristic feature of the higher judiciary. The phrase 'Public law
Litigation' was first prominently used by American academic Abram Chayes to describe the practice of
lawyers or public spirited individuals who seek to precipitate social change through court-ordered
decrees that reform legal rules, enforce existing laws and articulate public norms He identified four
inimitability of public law litigation in the United States which is common to PIL actions in India. First,
the joinder of parties has been liberalized today, all parties with an "interest" in the controversy can
join the litigation. Though "interest" has been defined narrowly sometimes to preserve efficiency
concerns, the courts have responded by allowing class-action claims that are more flexible with
regards to the parties. Second, the courts have given increasing importance to equitable relief.

PIL in India :
Public Interest Litigation can be broadly defined as 'litigation for the protection of public interest'. Its
unequivocal purpose is to estrange the suffering of all those who have borne the burnt of insensible
treatment at the hands of fellow human being. Perspicuity in public life & fair judicial action are the
right answer to check increasing peril of infringement of legal rights. It develops a new jurisprudence
of the accountability of the state for constitutional and legal violations adversely affecting the
interest of the weaker elements in the community.

Till 1960s and seventies, the concept of litigation in India was still in its elementary form and was seen
as a private pursuit for the vindication of private vested interests.

However, the entire scenario changed during Eighties with the Supreme Court of India led the
concept of public interest litigation (PIL).

PIL is necessary rejection of "laissez faire" of traditional jurisprudence.

The splendid efforts of Justice P N Bhagwati and Justice V R Krishna Iyer were instrumental of this
juristic revolution of eighties as a result any citizen of India or any consumer groups or social action
groups can approach the apex court of the country seeking legal remedies in all cases where the
interests of general public or a section of public are at stake.

Further, public interest cases could be filed without investment of heavy court fees as required in
private civil litigation.

Significance of Public Interest Litigation in India: Landmark Decisions

The unique model of public interest litigation that has evolved in India not only looks at issues like
consumer protection, gender justice, prevention of environmental pollution and ecological
destruction, it is also directed towards finding social and political space for the disadvantaged and
other vulnerable groups in society.
For instance, in People's Union for Democratic Rights v. Union of India a petition was brought against
governmental agencies which questioned the employment of underage labourers and the payment of
wages below the prescribed statutory minimum wage-levels to those involved in the construction of
facilities for the then upcoming Asian Games in New Delhi. The Court took serious exception to these
practices and ruled that they violated constitutional guarantees.
Similarly, in Bandhua Mukti Morcha v. Union of India the Indian Supreme Court explained the need to
abandon the traditional approach to the judicial process in order to 'forge new tools' to give
meaningful content to the fundamental rights of the large masses of the people.
Among other interventions, one can refer to the Shriram Food & Fertilizer case Court through Public
Interest Litigation directed the Co. Manufacturing hazardous & lethal chemical and gases posing
danger to life and health of workmen & to take all necessary safety measures before re-opening the
plant.
In the realm of environmental protection, many of the leading decisions have been given in actions
brought by renowned environmentalist M.C. Mehta. He has been a tireless campaigner in this area
and his petitions have resulted in orders placing strict liability for the leak of Oleum gas from a
factory in New Delhi directions to check pollution in and around the Ganges river, the relocation of
hazardous industries from the municipal limits of Delhi, directions to state agencies to check
pollution in the vicinity of the Taj Mahal and several forestation measures.

In a landmark judgment in of Delhi Domestic Working Women's Forum v. Union of India in year
1995 Supreme Court issued guidelines for rehabilitation and compensation for the rape on working
women.

Another crucial intervention was made in Council for Environment Legal Action v. Union of India
wherein a registered NGO had sought directions from the Supreme Court in order to tackle
ecological degradation in coastal areas.
An important step in the area of gender justice was the decision in Vishaka v. State of Rajasthan. The
petition in that case originated from the gang-rape of a grassroots social worker. In that opinion, the
Court invoked the text of the Convention for the Elimination of all forms of Discrimination against
Women (CEDAW) and framed guidelines for establishing redressal mechanisms to tackle sexual
harassment of women at workplaces.

A recent example of this approach was the decision in People's Union for Civil Liberties v. Union of
India where the Court sought to ensure compliance with the policy of supplying mid-day meals in
government-run primary schools. The mid-day meal scheme had been launched with much fanfare a
few years ago with the multiple objectives of encouraging the enrolment of children from low-income
backgrounds in schools and also ensuring that they received adequate nutrition. However, there had
been widespread reports of problems in the implementation of this scheme such as the pilferage of
food grains. As a response to the same, the Supreme Court issued orders to the concerned
governmental authorities in all States and Union Territories, while giving elaborate directions about
the proper publicity and implementation of the said scheme.

One of the earliest cases of public interest litigation was that reported as Hussain ara Khatoon (I) Vs.
State of Bihar. This case was concerned with a series of articles published in a prominent newspaper -
the Indian Express which exposed the plight of under-trial prisoners in the state of Bihar. A writ
petition was filed by an advocate drawing the Court's attention to the deplorable plight of these
prisoners. Many of them had been in jail for longer periods than the maximum permissible sentences
for the offences they had been charged with. The Supreme Court accepted the locus standi of the
advocate to maintain the writ petition. Thereafter, a series of cases followed in which the Court gave
directions through which the 'right to speedy trial' was deemed to be an integral and an essential part
of the protection of life and personal liberty.
In another matter, a journalist, Ms. Sheela Barse, took up the plight of women prisoners who were
confined in the police jails in the city of Bombay. She asserted that they were victims of custodial
violence. The Court took cognizance of the matter and directions were issued such as the detention of
female prisoners only in designated female lock-ups guarded by female constables and that accused
females could be interrogated only in the presence of a female police official.

Public interest litigation acquired a new dimension - namely that of 'epistolary jurisdiction' with the
decision in the case of Sunil Batra v. Delhi Administration. It was initiated by a letter that was written
by a prisoner lodged in jail to a Judge of the Supreme Court. The prisoner complained of a brutal
assault committed by a Head Warder on another prisoner. The Court treated that letter as a writ
 petition, and, while issuing various directions, opined that:

"...technicalities and legal niceties are no impediment to the court entertaining even an informal
communication as a proceeding for habeas corpus if the basic facts are found".

In Municipal Council, Ratlam v. Vardichand the Court recognized the locus standi of a group of citizens
who sought directions against the local Municipal Council for removal of open drains that caused
stench as well as diseases. The Court, recognizing the right of the group of citizens.

In Parmanand Katara v. Union of India the Supreme Court accepted an application by an advocate
that highlighted a news item titled "Law Helps the Injured to Die" published in a national daily, The
Hindustan Times. The petitioner brought to light the difficulties faced by persons injured in road and
other accidents in availing urgent and life-saving medical treatment, since many hospitals and
doctors refused to treat them unless certain procedural formalities were completed in these medico-
legal cases. The Supreme Court directed medical establishments to provide instant medical aid to
such injured people, notwithstanding the formalities to be followed under the procedural criminal
law.

In many other instances, the Supreme Court has risen to the changing needs of society and taken
proactive steps to address these needs. It was therefore the extensive liberalization of the rule of
locus standi which gave birth to a flexible public interest litigation system.

A powerful thrust to public interest litigation was given by a seven-judge bench in the case of S.P.
Gupta v. Union of India. The judgment recognized the locus standi of bar associations to file writs by
way of public interest litigation. In this particular case, it was accepted that they had a legitimate
interest in questioning the executive's policy of arbitrarily transferring High Court judges, which
threatened the independence of the judiciary.

8. Sources of Administrative Law

Introduction
Administrative Law is the law relating to the administrative operation of government. It deals with the
powers and duties of administrative authorities, the procedure followed by them in exercising the
powers and discharging the duties and the remedies available to an aggrieved person when his rights
are affected by any administrative action.

Sources of Administrative Law

Source means the origin of the material content of rule or the formal stamp of authority as law. In India,
the Administrative Law forms part of the ordinary law of the land. The main sources of administrative
law in India are as follows:

The Constitution of India

India has a written Constitution which is the supreme law of the land. It conditions and overrides all
legislative and administrative actions. The Constitution demarcates the legislative and administrative
power of the Union and the States conferring on the courts, the power to review legislative and
administrative action and adjudge their constitutionality. All the legislative actions of the administration
have been expressly brought by the Constitution within the purview of Article 13. All these features of
the Constitution influence and shape the nature and content of administrative law in India.

Statutes
Statute is the principal source of administrative power. Statute emanates from the Constitution. Under
the Constitution, law-making power has been given to Parliament and State Legislatures. Administration
is given powers by statutes. All the statutes have to conform to the constitutional patterns.

Ordinances
The ordinance-making power relates to the legislative powers of the Chief Executive in Union and
States. Article 123 of the Constitution of India which deals with the legislative powers of the President
empowers the President to promulgate ordinances during the recess of Parliament, and Article
213 confers a similar power on the Governor to promulgate ordinances during the recess of state
legislature.

Delegated Legislation
Law-making is the primary function of the Legislature. Yet, in no country does the legislature monopolise
the whole of legislative power. A good deal of legislation is made by the administration under the
powers conferred by the Legislature. This type of administrative legislation is called delegated or
subordinate legislation. The delegated legislation is subject to Judicial and Parliamentary control. In this
way, delegated legislation is an important source of law.

Judicial Opinions
Most, but not all of the doctrine that includes and controls administrative powers are found in Judicial
Analysis from other sources. Most Administrative Law is not just found in legal opinions.
The legal perspective is by no means considered the least administrative source. The problem is
unknown to judges, lawyers, and officials, much less to the poor and laity who are expected to appeal
against illegal government acts and abuse of power by officials. Hopefully, given the current preceding
rules, the legal perspective may play a limited role as one of the sources of Administrative Law in India.

Case Laws
The basis of Indian Administrative Law is judge-made law. This means that it is subject to all the
strengths and frailties of judicial law-making. In the absence of special administrative courts, new norms
of administrative law have been evolved. The function of courts is two-fold, regulative and formative.
The rules laid for controlling the actions of administration by various devices namely, reasoned
decisions, quasi-judicial function, rules of natural justice, for instance, rule of hearing and rule against
bias have been developed. The new principles laid down form guidelines for the future course of action.

Reasons for Expansion of Administrative Law

The rapid growth of administrative law during the twentieth century owes much to the change in the
concept of role and function of the modern government. The doctrine of laissez faire has given place to
the doctrine of welfare state and this has led to the proliferation of administrative powers and
functions.
 It is demanded by the people that the government must solve their problems rather than merely
define their rights. It is felt that the right of equality under the Indian Constitution will be a sterile
right unless the government comes forward to actively help the weaker sections of the society to
bring about equality in reality.
 The regulation of the patterns of ownership, production and distribution is considered the
responsibility of any good government to ensure the maximum good of the maximum number. This
again has led to the growth of administrative process and administrative law.
 A welfare state has necessarily to undertake legislation on an ever widening front, if the ultimate aim
of a socialistic pattern of society operating within the domain of the rule of law is to be evolved by
democratic process.
 The inadequacy of the traditional type of judicial system to give that quality and quantity of
performance which is required in the twentieth century for the functioning of welfare and functional
government is the biggest single factor which has led to the growth of administrative process and
law. Like medicine, in law there is a shift from punitive to preventive justice. Litigation is no more
 considered a battle to be won but a disease to be cured. Inadequacy of the traditional type of judicial
process to respond to this new challenge has led to the growth of administrative adjudication.

9. Distinguish between Administrative Law and Constitutional Law.

Constitutional Law and Administrative Law

In his magnum opus, The British Constitution, Ivor Jennings believes that Administrative law is
concerned with Administrative authorities’ organization, functions, powers, and responsibilities.
 On the other hand, he opines that Constitutional law is concerned with the broad principles
guiding the structure and powers of the various state organs and their relationship with the
citizens.
 The difference between administrative law and constitutional law is that in countries with a
written constitution, Constitutional law is derived from the constitution.
 However, Administrative law is derived from legislation, Administrative regulations, executive
decrees, circulars, letters of instruction, conventions, etc.
What is Constitutional law?
The liberties, rights, and powers established by a charter or a legally passed constitution are dealt by
Constitutional law. It comprises the rights of the people and powers of the several.
 Constitutional law is the highest law in India and is considered supreme.
 Prof. S P Sathe stated that Administrative law is a subset of Constitutional law, and all the
concerns related to Administrative law are considered to be Constitutional law issues.
 This points out that Constitutional law has a broad scope, with many Administrative laws
accounting for a sizable component of the Constitutional law.
 This is the difference between Administrative law and Constitutional law.
What is Administrative law?
Administrative law governs the establishment of government entities, and the administration of these
entities is also concerned with this law. It defines the authorities concerning the Administrative
agencies, their created substantive regulations, and the legal relationships binding them to the general
public and other government organizations.
 Administrative law has become essential in a developed society because the connection between
the public and administrative authorities has grown increasingly complicated.
 A law that could bring about regularity and clarity and could also control the abuse of
administrative authority was required to manage these intricate relationships; this legislation is
known as administrative law.
Relationship Between Constitutional Law and Administrative Law
Constitutional law is the most essential origin of Administrative law in the country. The relationship
between Constitutional law and Administrative law is that Constitutional law is the source and soul of
Administrative law. In short, Constitutional law is the parent of Administrative law.
 It is evident that Administrative law cannot perform its roles and responsibilities without the
presence of a constitution.
 Administrative law is completely dependent on the Constitutional law of India.
The difference between Administrative law and Constitutional Law is that administrative law is
subordinate to Constitutional law. In contrast, Constitutional law is the highest law in India and is
considered supreme. Constitutional law is responsible for dealing with various state organs, and
Administrative law is concerned with the organs of the state in motion.
The difference between constitutional law and administrative law is that both constitutional and
administrative law, concerned with the functions of the government, are components of public law in
the modern nation-state. More specifically, Administrative law is an addition to the supreme law of the
land, the Constitutional law. Let us check the detailed overview of the differences between
administrative law and constitutional law.
Difference Between Administrative law and Constitutional Law
In his seminal work, Ill-Assorted Musings about Regulatory Takings and Constitutional Law, Maurice J
Holland emphasizes that the main difference between administrative law and constitutional law is that
Constitutional law governs the legislative and executive branches, but Administrative law governs their
operations.
 The reach of constitutional law is greater. For instance, it concerns people, governments, and
human rights.
 However, administrative law is more specialized.
 While administrative law provisions are not as well recognized as constitutional law since they
are not incorporated in a single text like the constitution, they are generally understood and
explicitly stated in the constitution.

Constitutional Law vs. Administrative Law: Understanding the Key Differences

Points Constitutional Law Administrative Law

Meaning Constitutional law is the body of law that Administrative Law is the law
evolves from a constitution, setting out the concerning the powers and
fundamental right and duties for its citizens and procedures of administrative
also the principles according to which a State is agencies, including especially the
governed and defining the relationship law governing the judicial review of
between the various branches of government administrative action.
within the State.

Class Constitutional law is genus. It is the mother of Administrative law is a species of

all law of India. the Constitutional Law.

Deals with Constitutional law deals with various organs of Administrative law deals with those
the State. It also deals with structure of the organs as in motion/function. Thus,
State. it deals with functions of the State.

Superiority Constitutional law is the supreme and highest Administrative law is subordinate
law in the country. to Constitutional Law.

Type Constitutional law is theoretical one. Administrative law is practical and

functional.

Conclusion:
Key Difference Between Administrative Law and Constitutional Law
The key difference between administrative law and constitutional law is that Administrative law deals
with moving organizational structures, whereas constitutional law deals with permanent ones.
Constitutional law deals with creating the administrative body. Administrative law deals with limiting
administrative bodies to their lawful functions and authority.

10. Principles of Natural Justice

The word natural justice is derived from the Roman word ‘jus-naturale’ and ‘lex-naturale’ which
planned the principles of natural justice, natural law and equity.
“Natural justice is a sense of what is wrong and what is right.”
In India, this concept was introduced at an early time. In the case of Mohinder Singh Gill vs. Chief
Election Commissioner, the court held that the concept of fairness should be in every action whether it
is judicial, quasi-judicial, administrative and or quasi-administrative work.
Purpose of the principle
 To provide equal opportunity of being heard.
 Concept of Fairness.
 To fulfil the gaps and loopholes of the law.
 To protect the Fundamental Rights.
 Basic features of the Constitution.
 No miscarriage of Justice.
The principles of natural justice should be free from bias and parties should be given fair opportunity to
be heard and all the reasons and decision taken by the court should be informed by the court to the
respective parties.
Supreme court said that arriving at a reasonable and justifiable judgement is the purpose of judicial and
administrative bodies. The main purpose of natural justice is to prevent the act of miscarriage of justice.
A committee i.e. “Ministers Power” gave 3 essentials procedure related to the principles of natural
justice.
1. No one should be a judge in his own matter.
2. No one can be condemned unheard.
3. The party is entitled to know each and every reason and the decision taken by the authority.

No person should be made a judge in his own cause

 It is a fundamental principle that no man shall be a judge of his own cause. The principle
is that a Judge is disqualified from determining any case in which he may, or may fairly be
suspected to have an interest in the subject matter. The underlying principle is that
‘justice should not only be done, but should manifestly and undoubtedly be seen to be
done.
 The first requirement is that the Judge should be impartial and natural and must be free
from bias. One cannot act as judge of a cause in which he himself has some interest
either pecuniary or otherwise as it affords the strongest proof against neutrality. One
must be in a position to act judicially and to decide the matter objectively. If the judge is
subject to bias in favour of or against either party to the dispute or is in a position that a
bias can be assumed, he is disqualified to act as a judge and the proceedings will be
vitiated. It is a well settled principle of law that justice should not only be done but
manifestly and undoubtedly be seen to be done.
Example: In the case of A. K. Kraipak v. Union of India, the facts show that one of the members of a
selection board constituted to make the selection to a Central cadre, was also a candidate for the
interview. After the interview, the name of the candidate appeared at the top of the list. This was
challenged as infringing the principles of natural justice. It was held that as the member was one of the
persons to be considered for selection it was against all canons of justice to make him judge of his own
cause. Though he did not participate in the deliberation of the committee when his name was
considered, his presence in the selection board must have had its own impact on the decision of the
board. It was also held that it was his interest to keep out his rivals in order to keep his position safe.

Rule against bias (nemo judex in causa sua)

According to this rule no person should be made a judge in his own cause. Bias means an operative
prejudice whether conscious or unconscious in relation to a party or issue. It is a presumption that a
person cannot take an objective decision in a case in which he has an interest.
The rule against bias has two main aspects – one, that the judge must not have any direct personal stake
in the matter at hand and two, there must not be any real likelihood of bias.
Bias can be of the following three types:
1. Pecuniary bias
2. Personal bias
3. Subject matter bias
4. Departmental bias
5. Policy notion bias
6. Bias on the account of the obstinacy

1. Pecuniary bias
Pecuniary bias arises, when the adjudicator/ judge have monetary/ economic interest in
the subject matter of the dispute/ case. The judge, while deciding a case should not have
any pecuniary or economic interest. In other words, pecuniary interest in the subject
matter of litigation disqualifies a person from acting as a judge.
Relevant leading cases on this point are:
Dr. Benham's case - Dr. Benham was fined for practicing in the city of London without
license of the college of Physicians. According to the statute, the college is entitled to half
of the amount and the remaining goes to the King. Coke CJ. Dis- allowed the claim (fine)
on the ground that the college had a pecuniary interest. (Fine against Dr. Benham was
dismissed). The rule of pecuniary bias was laid down in the case of: Dimes v. D. J Canal.
A company filed a suit against a landowner. Lord Chancellor (judge), who was a
shareholder of the plaintiff company heard the case and decided in favour of the
company. On appeal, the House of Lords quashed this decision on the ground that no
man shall be judge of his own cause. R. v. Hendon Rural District Council, Ex parte
charley.
In this case, one of the members of the planning commission was an estate agent and he
was acting for the applicant to whom permission was granted by the planning
commission. The decision of the planning commission granting the permission was
quashed on the ground of pecuniary bias.
Jeejeebhoy v. Asst. Collector. In this case, it was found that one of the members of the
bench of the court was also a member of the co-operative society for which the disputed
land had been acquired.
The bench was reconstituted. Similarly, Visakhapatnam Co-operative Motor Transport
Ltd. v. G. Bangar Raju. In this case, the district collector as the chairman of the regional
transport authority granted motor permit to the above co-operative society, to which he
was also the president. The court set aside the collector's action on the ground of
pecuniary bias.
2. Personal bias
Personal bias arises from near and dear i.e. from friendship, relationship, business or
professional association. Such relationship disqualifies a person from acting as a judge.
Relevant cases on this point is A.k. kripak v. Union of India [8]. The Supreme Court
quashed the selections made by the selection board on the ground that one of the
candidates appeared before selection committee was also a member of the selection
board.
 Meenglass Tea Estate v. Their Workmen [9]. In this case, the manager of the factory
conducted inquiry against the workmen who were alleged to have assaulted him. The
court disqualified the manager on the ground of personal bias.
State of U.P v. Mohd. Nooh [10]. In this case a departmental inquiry was held against an
employee and one of the witnesses against the employee turned hostile. The inquiry
officer then left the inquiry and gave evidence against him and thereafter resumed to
complete the inquiry and passed the order of dismissal. The order of dismissal was
quashed on the ground of personal bias.
Mineral Development Ltd. v. State of Bihar [11]. In this case, the petitioner company was
owned by Raja Kamakshya Narain Singh. The petitioner was granted mining license for 99
years. The license was cancelled by the minister of revenue acting under Bihar Mica Act.
Raja Kamakshya Narain Singh, the owner of the company had opposed the minister and
filed a criminal case under section 500 of the Indian Penal code. The case was political
rivalry between the minister and Raja Kamakshya Narain Singh. The cancellation order
was set aside on the ground of personal bias.
Kirti Deshmankar v. Union of India [12]. In this case, the mother- in- law of a student
selected for the admission to the medical college was vitally interested in her admission.
The mother in law was a member of the college and hospital council and she participated
in the meeting of the council. On this ground the court held that the selection of the
student for the admission to the medical college was vitiated. The court made it clear that
it was not necessary to establish bias.
Reasonable likelihood of bias was considered sufficient to vitiate the selection for
admission. In short, for vitiating the decision on the ground of bias, it is not necessary to
establish bias. It is sufficient to invalidate the decision if it can be shown that there has
been reasonable likelihood of bias.
3. Subject matter bias
A judge may have a bias in the subject matter, which means that he himself is a party, or has
some direct connection with the litigation. To disqualify on the ground of bias there must be
intimate and direct connection between adjudicator and the issues in dispute. To vitiate the
decision on the ground of bias as for the subject matter there must be real likelihood of bias.
Example: In Baidvanath Mahapatra v. State of Orissa, Committee recommended for the
Premature retirement of a Government Servant at the age of 50 years. One of the members of
the Review Committee who recommended premature retirement of the Appellant was
appointed as the Chairman of the Tribunal and confirmed the Order of premature retirement.
The Supreme Court held that the Order of the Tribunal was vitiated since the member,
“Who had administratively taken a decision against the Appellant, considered the matter
judicially as a Chairman of the Tribunal, thereby he acted as a judge of his own cause”.
4. Departmental bias
The problem or issue of departmental bias is very common in every administrative process and it
is not checked effectively and on every small interval period it will lead to negative concept of
fairness will get vanished in the proceeding.
5. Policy notion bias
Issues arising out of preconceived policy notion is a very dedicated issue. The audience sitting
over there does not expect judges to sit with a blank sheet of paper and give a fair trial and
decision over the matter.
6. Bias on the account of the obstinacy
 Supreme court has discovered new criteria of biases through the unreasonable condition. This
new category emerged from a case where a judge of Calcutta High Court upheld his own
judgement in appeal. A direct violation of the rules of bias is done because no judge can sit in
appeal against in his own case.

Rule of ‘audi alteram partem’

The second principle of natural justice is audi alteram partem.
Hear the other side is the essence of the principle.
The authority –
– Must not hear one side in absence of other, or
– Must not make decision without hearing the other side.
Being part of natural justice, it was made applicable even to administrative authority adjudicating
matter having civil consequences. In practice it is more frequently invoked than the rule against bias. No
proposition can be more clearly established than that a man cannot incur the loss of liberty or property
for an offence by a judicial proceeding until he has had a fair opportunity of answering the case against
him.
Essential ingredients of the rule of fair hearing: Following are the ingredients of the rule of fair hearing:
(a) Right to Notice: Notice is the first limb of a proper hearing. Notice should be definite. It should
specify the authority issuing the notice. The notice must give sufficient time to the person concerned to
prepare his case. Whether the person concerned has been allowed sufficient time or not depends upon
the facts of each case. The notice must be adequate and reasonable. The notice is required to be clear
and unambiguous. If it is ambiguous or vague, it will not be treated as reasonable or proper notice.
The Courts insist that sufficient time should be given to the person against whom action is proposed to
be taken to prepare his defence. The Court has struck down a notice which stated that an enquiry would
be held in the next morning. Notice need not be reissued if the concerned party acquires knowledge of
the proceeding and appears before the authority. But if the statute specifically provides for a notice the
proceeding may be struck down for failure to issue the notice.
Example 1: In R v. University of Cambridge, Dr. Bentley was deprived of his degrees by the Cambridge
University on account of his alleged misconduct without giving any notice or opportunity of hearing. The
Court of King’s Bench declared the decision as null and void.
Example 2: In Swadeshi Cotton Mills v. Union of India, taking over the management of a company by
the Government without proper notice or hearing was held to be bad and contrary to law.
(b) Right to present case and evidence: The party against whom proceedings have been initiated must
be given full opportunity to present his or her case and the evidence in support of it. The reply is usually
in the written form and the party is also given an opportunity to present the case orally.
The question whether hearing to be effective, a personal hearing to be given or only an opportunity to
file an explanation is sufficient deserves attention. Hearing does not ordinarily include a personal
hearing unless the statute expressly or impliedly indicates so. The Supreme Court spoke in favour of
personal hearing in Travancore Rayons v. Union of India. The Court expressed the view that if personal
hearing was given in cases involving complex and difficult questions, it would conduce to better
administration and more satisfactory disposal of the grievances of citizens.
(c) Right to rebut adverse evidence: Principle of natural justice also requires that every party shall have
the right to present his case or defense by oral or documentary evidence, to submit rebuttal evidence,
and to conduct such cross examination as may be required for a full and true disclosure of the facts.
For the hearing to be fair the adjudicating authority is not only required to disclose to the person
concerned the evidence or material to be taken against him but also to provide an opportunity to rebut
the evidence or material.
(i) Cross-examination: Examination of a witness by the opposite party is called cross-examination. The
main aim of cross-examination is the detection of falsehood in the testimony of the witness. The rules of
natural justice say that evidence may not be read against a party unless the same has been subjected to
cross-examination or at least an opportunity has been given for cross examination.
(ii) Legal Representation: Ordinarily the representation through a lawyer in the administrative
adjudication is not considered as an indispensable part of the fair hearing. However, in certain situations
denial of the right to legal representation amounts to violation of natural justice. Thus, where the case
involves a question of law or matter which is complicated and technical or where the person is illiterate
or expert evidence is on record or the prosecution is conducted by legally trained persons, the denial of
legal representation will amount to violation of natural justice. In such conditions the party may not be
able to meet the case effectively and therefore he must be given the opportunity to engage professional
assistance to make his right to be heard meaningful.
(d) Disclosure of evidence: A party must be given full opportunity to explain every material that is
sought to be relied upon against him. Unless all the material (e.g. reports, statements, documents,
evidence) on which the proceeding is based is disclosed to the party, he cannot defend himself properly.
(e) Reasoned Decision or Speaking Orders: Till recently, it was considered that the requirement to give
reasons was not part of the principles of natural justice. In India there is no general statutory provision
which requires the authority to give reasons. But, the Courts have entrusted the duty on the
administrative authorities to give reasons. When a statute imposes the requirement of giving reasons it
is considered to be mandatory.
Example 1: In Padfield v. Minister of Agriculture, the Minister gave reasons for refusing to refer the
complaint to the Committee and gave detailed reasons for his refusal. It was admitted that the question
of referring the complaint to a committee was within his discretion. When his order was challenged, it
was argued that he was not bound to give reasons and if he had not done so, his decision could not have
been questioned and his giving of reasons could not put him in a worse position. The House of Lords
rejected this argument and held that the Ministers’ decision could have been questioned even if he had
not given reasons. It is submitted that the above view is correct.
Example 2: In Sunil Batra v. Delhi administration, the Supreme Court while interpreting section 56 of
the Prisons Act, 1894, observed that there is an implied duty on the jail superintendent to give reasons
for putting bar fetters on a prisoner to avoid invalidity of that provision under Article 21 of the
Constitution. Thus the Supreme Court laid the foundation of a sound administrative process requiring
the adjudicatory authorities to substantiate their order with reasons.