This web page contains the Administrative Law notes of the 5 Year BALLB Hons course in Law Schools. These notes briefly discuss the history, philosophy, objectives, and laws concerning Law, Poverty, and development issues in India.
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If you have any doubts about any of the topics discussed in these notes, don’t hesitate to consult your learned Professors and other standard books for a better understanding and clarity.
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Central theme of Administrative Law
The central theme of the Administrative law is the reconciliation of stately power with the liberty of the common person.
It’s an interface between the government and the people.
It is not codified in India and is basically a judge made law.
It is a branch of public law that determines powers, the jurisdiction of public authorities’ rights, and liberties of individuals dealing with governments.
SCHOLARLY OPINIONS
Sir Ivor Jennings
Administrative Law is a law dealing with administration
Dicey
He was obsessed with Droit Administraff of France. According to him, Administrative Law contains remedies against the misuse of power by public officials.
Davis
he includes administrative rule-making and rule adjudication but excludes rule application and control mechanism from the scope of Administrative Law
Upendra Baxi
According to him, Administrative Law protects little man from the arbitrary exercise of public power. It’s a study of the pathology of power in a developing society.
A comprehensive definition
Admin Law is that branch of public law which deals with the organization and powers of administrative and quasi-administrative agencies and prescribes principles and rules by which official action is reached and received in relation to individual liberty and freedom.
HISTORICAL DEVELOPMENT
Earlier Times
Magna Carta 1215
Droit Administraff 1835
Modern Times
Rule of Law Conference 1957
It was held in 1957 at the University of Chicago
Delhi Declaration 1959
proposed to create a condition in which dignity of man as an individual is upheld.
And that dignity requires recognition of rights such as Political, Social, Economic, Educational, and Cultural rights, etc.
Lagos Declaration 1961
Third World Jurisprudence
Supreme Court decisions of India
Veena Sethi v State of Bihar 1982
Rule of law for poor, illiterate, downtrodden
Concerned unjustified and illegal detention of certain prisoners
Admin law is an interface between people and ruler
Distinction between public and private law
Private law deals with Rights in rem (Property)
In Public law, state is one of the parties
What is State?
Defined in Article 12 of constitution of India.
Primary and secondary liability
Article 300-State can be sued.
BASIC TENETS OF ADMIN LAW
Admin law is an interface between people and State.
State-Article 12 and deemed state.
Private and Admin Law-deemed state.
Regulates relationship between the state and people.
FACETS OF ADMINISTRATIVE LAW
There are various negative and affirmative facts of Admin Law (Upendra Baxi)
Rule of Law
Traditional concept and modern concept
Criticism of AV Dicey and Modern Thinkers.
Droit Administratif- can it be applied in India?
Power should never be exercised arbitrarily
Power should be exercised within the confines of statutory limits.
Separation of Powers
Montesquieu
Concentration of Power?
Impact of separation of powers and rule of law
Administrative Discretion
Control and limited mechanism
Principles of Natural Law
Delegation and sub-delegation of Power
Judicial and Parliamentary control
Principles of Natural Justice
The nature of administrative action should be fair both procedurally and substantively.
Ridge v Baldwin
A House of Lords decision on principles of natural justice.
Transparency and accountability in governance
Recognition by Indian Constitution 226, 227, 32, different writs-
Judicial Review
Review means review by same court. Judicial review means review by higher courts
The court looks into the reasonableness, legality, procedural impropriety, proportionality, legitimate expectations of administrative actions.
Exercise of Admin power should be accompanied by reasons.
Fairness in every exercise of governmental power.
Constitutional Provisions
Include but not limited to S.21, S.309, 310, 311of the Indian constitution.
1973: In the Keshawananda Bharti, Judicial review was recognized as part of basic structure.
1978: In the Maneka Gandhi v Union of India, the court recognized the concept of Post decisional hearing.
ATTRIBUTES OF ADMINISTRATIVE LAW
Branch of Public Law
Regulates relations between people and state
Protect liberties of people-Judicial review
Ensures accountability of state action
Regulates administrative actions of 3 organs of state.
RECOGNITION OF ADMINISTRATIVE LAW
United Kingdom
Unwritten constitution
Prof Albert Venn Dicey-Rule of law
Crown Proceedings Act 1947
Tribunals Act 2007
Separation of Power.
United States
Federal Laws-constitution of USA
Administrative Procedure Act 1946
FOI-Freedom of Information Act 1966
Federal Register Act 1936
FTA Act 1946
France
Civil Law system
Written constitution
The Droit Administratif of 1799 initially envisaged protection to administration but later turned into offering protection to people etc
India
Admin law is basically judge-made law in India. Courts take inspiration from constitutional provisions like Articles 14, 16, 19, 21, 226, 227, 32 and 136; 300, 323A, B, C & D
FACTORS RESPONSIBLE FOR THE GROWTH OF ADMINISTRATIVE LAW
Involvement of the State in Multifarious operations:
Trade, business, regulator, controller, etc
After industrial revolution state largely came to occupy the role of regulator of business.
Failure of organs of the State
The Judiciary:Access to justice, because Judiciary has failed in providing speedy and economical justice, various specialised tribunals have been created.
The Legislature: Law making process
Executive before 19th century: No specific differences
Arbitrariness/abuse of powers:Lack of accountability of the state
Revolutions
Demand for good governance
Accountability, VL, PA, etc
Transparency: E-governance etc
In earlier times, no one could question the King
Phenomenal growth in science and Technology
Demand by people that govt. should solve their problems and not merely define their rights.
Sources of the Administrative Law
CONSTITUTION
Part III, Articles 12, 14-32, 226, 227, 136, 299, 300, 309-11, 323A &B, Schedule VII, etc
323A & 323B were inserted in 1973-
323A empowers govt to create administrative tribunals to deal with service matters.
323B recognises all other tribunals
226-deals with the issues of violation, statutory, legal and fundamental rights
Article 12-State is the starting point of AL
Article 19(1)(a)-
Article 19(1)(c)-right to form Association.
Article 21 has recognised natural justice.
Article 300-state can be sued. IMP
Primary Laws: Major source.
Ordinance/rules/regulations/order/notifications/scheme/etc.
JUDICIAL PRONOUNCEMENTS
PIL, RTI, SOP, PNJ, JR, Admin Actions, etc.
State of UP v Rajnarain; 1975 Allahabad HC
A case heard by the Allahabad High Court found the Prime Minister of India Indira Gandhi guilty of electoral malpractices. Ruling on the case that had been filed by the defeated opposition candidate, Raj Narain, Justice Jagmohan Lal Sinha invalidated Gandhi’s win and barred her from holding elected office for six years.
MK Gupta v LDA;
The administrative law of accountability of public authorities for their arbitrary and even ultra vires actions has taken many strides.
It is now accepted that the State is liable to compensate for loss or injury suffered by a citizen due to arbitrary actions of its employees.
State of Gujarat v Memon Mahomed Haji Hasan
HC directed payment of compensation for disposal of seized vehicles without waiting for the outcome of decision in appeal was upheld both on principle of bailee’s legal obligation to preserve the property intact and also the obligation to take reasonable care of it.
Keshavananda Bharti 1973
Justice HR Khanna asserted through this doctrine that the constitution possesses a basic structure of constitutional principles and values. The Court partially cemented the prior precedent Golaknath v. State of Punjab, which held that constitutional amendments pursuant to Article 368 were subject to fundamental rights review, by asserting that only those amendments which tend to affect the ‘basic structure of the Constitution’ are subject to judicial review.
This judgement ruled that Article 368 does not enable Parliament in its constituent capacity to delegate its function of amending the Constitution to another legislature or to itself in its ordinary legislative capacity
Indira Gandhi v Raj Narain 1975 SC
According to Roscoe Pound, law, as distinguished from laws, is the system of authoritative materials for grounding or guiding judicial and administrative action recognized or established in a politically organized society.
Official duty would include not merely duties imposed by statutes but also those which have to be carried out in pursuance of administrative instructions.
The rule of law stands for the view that decisions should be made by the application of known principles of laws. Power should never be exercised arbitrarily. Power should be exercised within the confines of statutory limits.
In general such decisions will be predictable, and the citizen will know where he is. On the other hand there is what is arbitrary. A decision may be made without principle, without any rules. It is therefore unpredictable, the antithesis of a decision taken in accordance with the rule of law.
L Chandra Kumar v Union of India 1997
Issues–
Whether Administrative Tribunals constituted either under Article 323A or under Article 323B of the Constitution, as they are functioning at present, can be said to be effective substitutes for the High Courts in discharging the power of judicial review?
Held–
While the Tribunals constituted under Articles 323A and 323 B can be vested with the power of judicial review over administrative action, the power of judicial review of legislative action cannot be conferred upon them.
This proposition flows from Kesavananda Bharati’s case where it was held that under our constitutional scheme, only the constitutional courts have been vested with the power of judicial review of legislative action;
While the provisions of the Act do not purport to affect the sacrosanct jurisdiction of the Supreme Court under Article 32 of the Constitution, Articles 323A and 323B allow Parliament to pursue such a course in future and are therefore liable to be struck down.
Broadly speaking, judicial review in India comprises three aspects:
Judicial review of Legislative action,
Judicial review of Judicial decisions and
Judicial review of Administrative action.
We are, for the present, concerned only with understanding the first two aspects.
Has judiciary itself diluted the separation of power?
Red Light Theory; Green Light Theory; Amber Light Theory
Misfeasance in public office is explained by Wade in his book on Administrative Law
Even where there is no ministerial duty as above, and even where no recognised tort such as trespass, nuisance, or negligence is committed, public authorities or officers may be liable in damages for malicious, deliberate or injurious wrong-doing.
There is thus a tort which has been called misfeasance in public office, and which includes malicious abuse of power, deliberate maladministration, and perhaps also other unlawful acts causing injury.
Right to know and speak against state measures.
Necessity and Purpose of Administrative law
To take care of law and order problem.
Efficient functioning of governance mechanism.
To take care of abuse of power/state absolutism.
Control of administrative actions of authorities, ensure powers are exercised according to law-
Ranjit Thakur v Union of India
Ranjeet Thakur was a soldier and had some problem with his commanding officer so he wrote to the superior officer of his commanding officer.
But the soldier was chargesheeted and imprisoned for 28 days for not following proper procedure.
He sat on hunger strike.
He was again chargesheeted, dismissed from service.
Article 300-
Protect the interest of individuals from administrative authorities.
Bhim Singh v J&K 1885
On 17 August 1985 Bhim Singh was suspended as MLA in J&K.
After his suspension was stayed by High Court on 9 September, Bhim Singh left Jammu for Srinagar to attend the Legislative Assembly session. En route he was intercepted by the police and was kept as prisoner at an undisclosed location. After attempts to locate him proved futile, his wife and advocate Jayamala then moved the court to locate Bhim Singh.
On 13 September, the court ordered the inspector general of the police to inform Jayamala where her husband was being held in custody. Only after this was Bhim Singh brought before a magistrate for the first time on 14 September.
The court ruled that there “certainly was a gross violation of Shri Bhim Singh’s constitutional rights” and condemned the “authoritarian acts of the police.
The Supreme Court in a landmark judgement that impacted tort law in India, awarded Bhim Singh a compensation of fifty thousands rupees for his illegal detention and false imprisonment by the police.
Nilabati Behera v State of Orissa 1993,
Facts–
Petitioner’s son, aged about 22 years was taken from his home in police custody by Police in connection with the investigation of an offence of theft.
Next day the petitioner came to know that the dead body of her son was found on the railway track. There were multiple injuries on the body and his death was unnatural, caused by those injuries.
The petitioner alleged under Article 32 of the Constitution, that it was a case of custodial death since her son died as a result of the multiple injuries inflicted to him while he was in police custody and thereafter his dead body was thrown on the railway track.
It was prayed in the petition that award of compensation be made to her, for contravention of the fundamental right to life guaranteed under Article 21 of the Constitution.
Held–
A claim in public law for compensation for contravention of human rights and fundamental freedoms, the protection of which is guaranteed in the Constitution, is an acknowledged remedy for enforcement and protection, of such rights, and such a claim based on strict liability made by resorting to a constitutional remedy provided for the enforcement of a fundamental right is distinct from, and in addition to, the remedy in private law for damages for the tort resulting from the contravention of the fundamental right.
The defence of sovereign immunity being inapplicable, and alien to the concept of guarantee of fundamental rights, there can be no question of such a defence being available in the constitutional remedy.
Rudal Shah v State of Bihar 1983
Facts–
The petitioner who was detained in prison for over 14 years after his acquittal filed a habeas corpus petition under Art. 32 of the Constitution praying for his release on the ground that his detention in the jail was unlawful.
He also asked for certain other reliefs including compensation for his illegal detention.
Held–
The petitioner’s detention in the prison after his acquittal was wholly unjustified. Article 32 confers power on the Supreme Court to issue directions or orders or appropriate writs for the enforcement of any of the rights conferred by Part III of the Constitution.
Article 21 which guarantees the right to life and liberty will be denuded of its significant content if the power of this Court were limited to passing orders of release from illegal detention.
Secretary State Of Karnataka v Umadevi 2006
Public employment in a sovereign socialist secular democratic republic, has to be as set down by the Constitution and the laws made thereunder.
Our constitutional scheme envisages employment by the Government and its instrumentalities on the basis of a procedure established in that behalf.
Equality of opportunity is the hallmark, and the Constitution has provided also for affirmative action to ensure that unequals are not treated equals. Thus, any public employment has to be in terms of the constitutional scheme.
No protection to illegal benefits, appointments
Faculty appointment in Jodhpur NLU case.
Ganpat Singh v Gulbarga University 2013
Facts–
Gulbarga University, invited applications for appointment to the post of Lecturer in Masters in Computer Application MCA. The minimum qualification, was good academic record with at least 55% of marks at the Masters’ Degree level in the relevant subject.
Shivanand and Ganpath Singh besides other persons offered their candidature for the post of Lecturer in MCA. The appellant claims to have passed the M.Sc. examination in Mathematics with First Class with distinction.
Shivanand possessed a post-graduate degree in MCA and was eligible in terms of the advertisement.
The University, constituted a ‘Board of appointment’ for selecting suitable candidates which recommended ‘Ganpat’, who admittedly did not have a post-graduate degree in MCA, but had a Masters’ Degree in Mathematics. The recommendation so made was placed for consideration before the Syndicate which approved his appointment.
Shivanand challenged the aforesaid selection and appointment in a writ petition filed before the High Court, inter alia, contending that Masters’ Degree in Mathematics will not make Ganpat eligible in terms of the advertisement.
It was contended that Masters’ degree in Mathematics is a degree in a relevant subject and thus Ganpat possessed the basic qualification.
Held-
In our opinion, for appointment to the post of Lecturer, Masters’ degree in the Mathematics is not the relevant subject. The advertisement requires Masters’ degree in ‘relevant subject’ and not ‘appropriate subject’.
Upendra Singh v State Bihar 2018
Facts–
The main case set up by the appellant is that, no doubt, respondent No.8 was a private college when the appellant was engaged, however, it was ultimately taken over by the State Government and got affiliated to the Bihar University. It is stated that having regard to the long service rendered by the appellant, coupled with the decision of the University authorities itself to regularise such persons, he was also entitled thereto. However, the same is denied and he has not been paid his regular salary for last over a decade.
Promote good governance
Access to quality public administration, governance, public services etc.
Different Theories of Administrative Law
Red Light Theory
Propounded by scholars such as Prof Wade and Forsyth, etc
Primary function of administrative law is to control administrative actions.
Based on the principle that absolute power corrupts.
Advocacy of Judicial Review
Direct nexus between protection and judicial review.
Emerged from the fear of state absolutism; powers corrupt; control is needed to protect the interests
Various modes of control; keep the authorities within bounds: OUTSIDE Controls; needs checks.
Green Light Theory
Purpose is to facilitate administrative authorities
Propounded by scholars such as Clark and McCoy
Believes in self-governance
That Governance shall take care of all the issues.
That no external control is not required.
Tools–
Delegation of power
Discretionary power is given to admin authorities
According to John Austin, people will not follow law unless there is a sanction.
Facilitation of efficient operation of public admin
Self regulator, self governance, no outside interference
Amber Light Theory
Propounded by scholars such as Prof. Rollins
That both theories have limitations.
Combination of both theories-control as well as self-governance.
India and UK have approved the approach of the amber light theory
Provisions in the Indian Law-DL, AD and J&R
SEBI, FEMA.
Administrative Actions-
Actions performed by the organs of the state.
Judiciary-appointment of judicial officers, rules of procedure.
Legislature-election of speaker, in house rules of conduct etc.
Executive–
Interface between administrative law and administrative action-
Implementing the admin law is admin action.
Admin law regulates the admin action.
Whether one admin authority can perform all actions? SOP (Separation of Power)
GROWTH OF ADMINISTRATIVE LAW
Based on Chapter 2 of IP Massey
Rule of Law
The rule of law stands for the view that decisions should be made by the application of known principles of laws. Power should never be exercised arbitrarily. Power should be exercised within the confines of statutory limits. (Indira Gandhi v Raj Narain)
Not capable of exact definition but must include-
Principles of freedom,
Equality,
Non-discrimination,
Fraternity,
Accountability and
Non-arbitrariness
POSTULATES
Elements of Indian preamble
Equality–
Social, Economic and Political
Freedom–
Of thought, expression, belief, faith and worship
Association
Article 19
Accountability–
Rulers rule with the deference of people
To people
Holders of public power should be able to justify the exercise of public power
PRINCIPLES OF RULE OF LAW
Supremacy of Law
Equality
Judicial Review
Enforcement
As per Prof. AV Dicey-‘The law of the Constitution’, Part II, Chapter IV
Absence of discretionary/arbitrary power
Deprivation of life and property only as per due process of law
No special privilege for govt. servants
All person must be subject to same court
Law should apply to all
Rights of people should flow from customs and traditions recognised by courts.
Common Law
Fear that written constitution can be amended and abrogated
HISTORY OF RULE OF LAW
Ancient times–
Aristotle, Plato, Socrates, Kautilya
Earlier Times–
Magna Carta
Sir Edward Coke is said to be originator in 1610 case-
Absence of arbitrary power in governance. Punishment for a distinct breach of law before the ordinary courts of the land.
Droit Administraff-
Kings council (Council de Roi) crossed into the boundaries of ordinary court
After revolution Bonapart brought Council de Etat.
Mainly concerned with administrative disputes
Modern Times–
Rule of Law Conference-1957 University of Chicago
Delhi Declaration 1959
Create a condition in which dignity of man as an individual is upheld.
This dignity requires recognition of rights.
Political
Social
Economical
Educational
Cultural
Lagos Declaration 1961
Third World Jurisprudence-
SC of India
Veena Sethi v State of Bihar 1982
Rule of law for poor, illiterate, downtrodden
Concerned unjustified and illegal detention of certain prisoners
Bachan Singh v State of Punjab
Justice Bhagwati-para 10-rule of law is required to protect people from arbitrary exercise of power.
Connection between Rule of law and Judicial Review.
Connection between Rule of law and Separation of power.
Principle of Natural Justice is a main facet of rule of law.
PURPOSE OF RULE OF LAW
RoL is the base of democracy:
RoL is the sine quo non for democracy
Absence of arbitrary power in governance:LJE & Admin actions
Controls arbitrary exercise of powers for protection
Indian SC on rule of law.
RULE OF LAW IN PRACTICE
Absolute power corrupts absolutely
Arrogance of powers coupled with ignorance-disaster
Proprietors or owners of public offices-Abuse of public resources
EC/GC/AC resolutions/notification are supreme & can suspercede the law of the land.
Equality before law-
No preferential treatment: police, courts, etc
Status, connections and paying capacity
VIP/VVIP culture-public services
SC Cases-discrimination: Senior Advocates, status of parties, higher the bribe lower the conviction-corruption cases etc.
Hierarchy in governance etc.
IMPEDIMENTS IN RULE OF LAW
Hypocrisy and Sycophancy in governance
Lack of personal accountability
Reluctance of people to question illegality/abuse of public resources
High degree of opportunism
Ineffective remedy before courts: Judicial Review:Costly, complicated, etc
Disregard to ethical standards: Emotional Quotient?
Protection to corrupt official.
Principle: SEE-Sensitisation, Empowerment and Enforcement
Recognise Honesty & Integrity:SC case
Loyalty towards the nation/sense of belongingness
Fixation of personal accountability
Question/expose illegality/abuse
Effective speedy and economic justice
No protection to corrupt officials
Be the change agent.
JUDICIAL INTERPRETATION ON RULE OF LAW
In our constitutional system, central/characteristic feature is concept of ROL, means
All administrative actions tested by Standard of Legality
Administrative Action does not meet standards be set aside.
Fairness to women in police lock-up and prisons
Sheela Barse v Maharashtra 1983 2 SCC 96-
Facts-
The petitioner, a journalist, in her letter addressed to this Court stated that Five out of fifteen women prisoners interviewed by her in the Bombay Central Jail alleged that they had been assaulted by the police in the police lock up and two of them in particular alleged that they had been assaulted and tortured in the lock up. Treating the letter as a writ petition the Court issued notices to all concerned to show cause why the writ petition should not be allowed. In the meanwhile the Director of the College of Social Work, Nirmala Niketan, Bombay was directed to interview the women prisoners without any one else being present and ascertain whether the allegations made to the petitioner were correct.
The Director, in her report, stated among other things that there was no adequate arrangement for providing legal assistance to women prisoners and that two prisoners who were foreign nationals complained that a lawyer duped and defrauded them and misappropriated almost half of their belongings and jewellery on the plea that he was retaining them for payment of his fees.
Held–
Legal assistance to a poor or indigent accused, arrested and put in jeopardy of his life or personal liberty, is a constitutional imperative mandated not only by Art. 39A but also by Articles 14 and 21 of the Constitution.
It is a Necessary sine qua non of justice and where it is not provided, injustice is likely to result and every act of injustice corrodes the foundations of democracy and rule of law.
It is possible that a prisoner lodged in a jail does not know to whom he can turn for help to indicate his innocence or defend his constitutional or legal rights or to protect himself against torture and ill-treatment, oppression and harassment at the hands of his custodians.
It is also possible that he or the members of his family may have other problems where legal assistance is required but by reason of his being incarcerate.
It may be difficult if not impossible for him or the members of his family to obtain proper legal advice or aid.
It is therefore essential that legal assistance must be made available to prisoners in jails whether they be under-trials or convicted prisoners.
Fairness in Public employment, no undue reliance on POLICE VERIFICATIONS for jobs.
State of MP v Ramashankar Raghuvanshi 1982 2 SCC 145
Facts–
The Government took over a municipal school in which the respondent worked as a teacher, and he was absorbed in Government service. The order stated that his absorption in Government service was subject to verification of his antecedents. Sometime later, on the basis of the report of the Superintendent of Police that before being absorbed in Government service the respondent had taken part in RSS and Jan Sangh activities his services were terminated on the ground that he was not a fit person to be entertained in Government service.
Held–
The respondent cannot be turned back at the very threshold on the ground of his past political activities. Once he becomes a Government servant, a he becomes subject to the various rules regulating his conduct and his activities must naturally be subject to all rules made in conformity with the Constitution.
The action sought to be taken against the respondent was not any disciplinary action on the ground of his present involvement in political activities contrary to some service conduct rule nor was there any allegation that he ever participated in any illegal or subversive activity or that he was a perpetrator of violent deeds. All that was said was that before he was absorbed in Government service he had taken part of RSS and Jan Sangh activities. What those activities were had never been disclosed. Neither the RSS nor the Jan Sangh was alleged to be engaged in any subversive or other illegal activities, nor were they banned organisations. Most people may not agree with the programme and philosophy of the Jan Sangh or RSS but that is irrelevent. Everyone is entitled to his thought and views. Members of these organisations continue to be members of Parliament and State legislatures. They are heard often with respect both inside and outside the Parliament.
The whole idea of seeking a police report on the political faith and the past political activity of a candidate for public employment appears to cut at the very root of the fundamental RIGHTS OF EQUALITY OF OPPORTUNITY in the matter of employment and freedom of association.
It offends the fundamental rights guaranteed by articles 14 and 16 of the Constitution to deny employment to an individual because of his past political affinities, unless such affinities are considered likely to affect the integrity and efficiency of the individual’s service.
Union of India v Cyanamide India Ltd. AIR 1987 SC 1802
Facts–
Armed with authority under the Drugs (Prices Control) Order, 1979 the Central Government issued notifications fixing the maximum prices at which various indigenously manufactured bulk drugs may be sold by the manufacturers.
These notifications were questioned on several grounds by the manufacturers and they have been quashed by the Delhi High Court on the ground of failure to observe the principles of natural justice
Held–
So long as the method prescribed and adopted by the subordinate legislating body in arriving at the cost of production of bulk drugs was not arbitrary and opposed to the principal statutory provisions, it could not legitimately be questioned.
Where prices of essential commodities are fixed in order to maintain or increase their supply or for securing their equitable distribution and availability at fair prices, the court should not make any interim order staying the implementation of the notification fixing the prices. Such orders are against the public interest and ought not to be made by a court unless it is satisfied that no public interest is going to suffer.
In matters of fixation of price, it is the interest of the consumer public that must come first and any interim order must take care of that interest.
Menaka Gandhi v UOI 1978 (Withdrawal/impounding of passport)
Facts-The petitioner was issued a passport on June 1, 1976 under the Passport Act, 1967. On the 4th of July 1977, the petitioner received a letter dated 2nd July, 1977, from the Regional Passport Officer Delhi intimating to her that it was decided by the Government of India to impound her passport under S.10(3)(c) of the Act “in public interest”.
Held–
Public interest must actually exist in present and mere likelihood of public interest arising in future would be no ground for impounding the passport.
The observations in A.K.Gopalan’s case that due process with regard to law relating to preventive detention are to be found in Art. 22 of the Constitution because it is a self-contained code for laws. The tests of reason and justice cannot be abstract. They cannot be divorced’ from the needs of the nation. The tests have to be pragmatic otherwise they would cease to be reasonable.
The discretion left to the authority to impound a passport in Public interest cannot invalidate the law itself.
Even executive authorities when taking administrative action which involves any deprivation of or restriction on inherent fundamental rights of citizens must take care to see that justice is not only done but manifestly appears to be done. They have a duty to proceed in a way which is free from even the appearance of arbitrariness, unreasonableness or unfairness.
They have to act in a manner which is patently impartial and meets the requirements of natural justice.
The mere prescription of some kind of procedure cannot even meet the mandate of Article 21. The procedure prescribed by law has to be fair, just and reasonable, not fanciful, oppressive or arbitrary.
the mere prescription of some kind of procedure cannot even meet the mandate of article 21. the procedure prescribed by law has to be fair, just and reasonable, not fanciful, oppressive or arbitrary.
The question whether the procedure prescribed by law which curtails or takes away the personal liberty guaranteed by Art. 21 is reasonable or not has to be considered not in the abstract or on hypothetical considerations like the provision for a full-dressed hearing as in a court room trial but in the contest, primarily, of the purpose which the Act is intended to achieve and of urgent situations which those who are charged with the duty of administering the Act may be called upon to deal with.
Secondly, even the fullest compliance with the requirements of Art. 21 is not the journey’s end because a law which prescribes fair and reasonable procedure for curtailing or taking away the personal liberty granted by Art.21 has still to meet a possible challenge under the other provisions of the Constitution.
Constitution is the result of ordinary law of the land
Constitution result of ordinary law as developed by courts though common law tradition.
Provides for legal protection of individual not via a bill of rights but through development of common law.
Suppose strong majority govt. reverses all liberalisation and asks all BPO to leave the country
ADM Jabalpur v SS Shukla 1976 AIR 1207 (Habeaus Corpus case)
Facts–
On June 27, 1975, in exercise of powers conferred by Clause (1) of Art. 359 the President declared that the right of any person (including a foreigner) to move any court for the enforcement of the rights conferred by Articles 14, 21 and 22 of the Constitution and all proceedings pending in any court for the enforcement of the above mentioned rights shall remain suspended for the period during which the proclamation of emergency made under Clause (1) of Act. 352 of the Constitution on December 3, 1971, and on June 25, 1975, are both in force.
The respondents detained under S.3(IA)(ii) read with S.3(2) of the MISA Act 1975 challenged in the vires of the ordinance issued on June 27, 1975, by the President of India as unconstitutional and inoperative in law and prayed for the setting aside of the said order and for directing their release forthwith by the issuance of a writ of habeas Corpus.
Held–
The rule of law is not a mere catchword or incantation. The certainty of law is one of the elements in the concept of the rule of law. The essential feature of rule of law is that the judicial power of the State is, to a large extent, separate from the Executive and the Legislature.
(Per majority A.N. Ray C.J. M.H. Beg.Y.V. Chandrachud and P.N. Bhagwati JJ.)–In view of the Presidential Order. Dated June 27, 1975, under Clause (1) of Art. 359. no person has any locus standi to move any writ petition under Art 226 before a High Court for habeas corpus or any other writ or order or direction to challenge the legality of an order of detention on the ground that the order is not under or in compliance with the Act or is illegal or is vitiated by malafides factual or legal or is based on extraneous considerations.
As per AN Ray-The vital distinction between Arts. 358 and 359 is that Art 358 suspends the rights only in Article 19 to the extent that the Legislature can make laws contravening Art.19 during the operation of a Proclamation of emergency and the Executive can take action which The Executive is competent to take under such laws Article 358 does not suspend any Fundamental Right.
The argument that jurisdiction and powers of this Court under Art. 32 and of the High Courts under Art. 226 are virtually abolished by the Presidential order without any amendment of the Constitution is incorrect. No amendment to the Constitution is necessary because no jurisdiction and power either of this Court or of the High Court is taken away. When a Presidential order takes away the locus standi of the detenu to move any court for the enforcement of Fundamental Rights for the time being, the jurisdiction and powers of this Court and of the High Courts remain unaltered.
The theory of eclipse is untenable. The theory of eclipse refers to pre-constitutional laws which were inconsistent with Fundamental Rights. By reason of Art.13(1) such laws did not became void but became devoid of legal force. Such laws became eclipsed for the time being. The theory of eclipse has no relevance to the suspension of the enforcement of fundamental Rights under Art. 359(1).
The Presidential orders does not alter or suspend any law.
Keshawananda Bharti 1973 4 SCC 225
Rule of Law is part of basic structure along with, Separation of Power, Judicial Review and Equality before law.
General principles of constitution-
Result of judicial decisions determine
Rights of private persons in particular cases
Enrich/form new principles of constitution
Shankari Prasad v UOI 1951 case-acquiring lands of Zamindars.
Held–
Although “law” must ordinarily include constitutional law there is a clear demarcation between ordinary law which is made in the exercise of legislative power and constitutional law, which is made in the exercise of constituent power.
In the context of Art. 13, “law” must be taken to mean rules or regulations made in exercise of ordinary legislative power and not amendments to the constitution made in the exercise of constituent power with the result that Art. 13(2) does not affect amendments made under Art. 368.
Articles 31A and 3lB inserted in the Constitution by the Constitution (First Amendment) Act, 1951, do not curtail the powers of the High Court under Art. 226 to issue writs for enforcement of any of the rights conferred by Part III or of the Supreme Court under Arts. 132 and 136 to entertain appeals from orders issuing or refusing such writs; but they only exclude from the purview of Part III ‘certain classes of cases.
Articles 31A and 31B are not invalid on the ground that they relate to land which is a matter covered by the State List (item 18 of List II) as these articles are essentially amendments of the Constitution, and Parliament alone has the power to enact them.
SR Bommai case-dismissal of state governments.
Facts–
S.R. Bommai was the Chief Minister of the Janata Dal government in Karnataka between August 13, 1988 and April 21, 1989. His government was dismissed on April 21, 1989 under Article 356 of the Constitution and President’s Rule was imposed, in what was then a mostly common mode to keep Opposition parties at bay. The dismissal was on grounds that the Bommai government had lost majority following large-scale defections engineered by several party leaders of the day. Then Governor P. Venkatasubbaiah refused to give Bommai an opportunity to test his majority in the Assembly despite the latter presenting him with a copy of the resolution passed by the Janata Dal Legislature Party.
Held–
On March 11, 1994, a 9-judge Constitution Bench of the Supreme Court issued the historic order, which in a way put an end to the arbitrary dismissal of State governments under Article 356 by spelling out restrictions.
The verdict concluded that the power of the President to dismiss a State government is not absolute.
The verdict said the President should exercise the power only after his proclamation (imposing his/her rule) is approved by both Houses of Parliament.
Till then, the Court said, the President can only suspend the Legislative Assembly by suspending the provisions of Constitution relating to the Legislative Assembly.
“The dissolution of Legislative Assembly is not a matter of course. It should be resorted to only where it is found necessary for achieving the purposes of the Proclamation,” the Court said.
Separation of Power
Doctrine of SOP is traceable to Aristotle.
War between King and Parliament in England
Triumph of Parliament in 1688
John Locke-was influenced by British constitutional developments in those times.
Montesque
No concentration of Power-Spirt de laws
Legislative, Executive and Judicial
THREE FORMULATIONS
The same person should not form part of more than one of the three organs of govt.
One organ of govt. should not interfere with other organs
One organ of govt. should not exercise functions of other organ
US Example
Article 1-vests all legislative powers in Congress
Article 2-vests all executive powers in President
Article 3-vests all judicial powers in Supreme Court
India
DPSP, Article 50-Judicial Independence
Ram Jawaya Kapur v State of Punjab 1955 (Book case)
Constitution has not recognised SOP in absolute sense
But functions of different organs of govt. have been sufficiently differentiated
Facts–
It is alleged that the Punjab Government has in pursuance of their so-called policy of nationalisation of text books, issued a series of notifications since 1950 regarding the printing, publication and sale of these books which have not only placed unwarrantable restrictions upon the rights of the petitioners to carry on their business of preparing, printing publishing and selling text books for different classes in the schools of Punjab but have practically ousted them and other fellow-traders from the business altogether.
It is said that no restrictions could be imposed upon the petitioners’ right to carry on the trade which is guaranteed under article 19(1)(g) of the Constitution by mere executive orders without proper legislation and that the legislation, if any, must conform to the requirements of clause (6) of article 19 of the Constitution. Accordingly, the petitioners pray for writs in the nature of mandamus directing the Punjab Government to withdraw the notifications which have affected their rights.
Held–
It may not be possible to frame an exhaustive definition of what executive function means and implies.
Ordinarily the executive power connotes the residue of governmental functions that remain after legislative and judicial functions are taken away.
The Indian Constitution has not indeed recognised the doctrine of separation of powers in its absolute rigidity but the functions of the different parts or branches of the Government have been sufficiently differentiated and consequently it can very well be said that our Constitution does not contemplate assumption, by one organ or part of the State, of functions that essentially belong to another.
The executive function comprises both the determination of the policy as well as carrying it into execution. This evidently includes the initiation of legislation, the maintenance of order, the promotion of social and economic welfare, the direction of foreign policy, in fact the carrying on or supervision of the general administration of the State.
Under Article 53(1) of our Constitution, the executive power of the Union is vested in the President but under article 75 there is to be a Council of Minister with the Prime Minister at the head to aid advise the President in the exercise of his functions.
The president has thus been made a formal or constitutional head of the executive and the real executive powers are vested in the Ministers or the Cabinet.
Specific legislation may indeed be necessary if the Government require certain powers in addition to what they possess under ordinary law in order to carry on the particular trade or business. Thus when it is necessary to encroach upon private rights in order to enable the Government to carry on their business, a specific legislation sanctioning such course would have to be passed.
In the present case, it is not disputed that the entire expenses necessary for carrying on the business of printing and publishing the textbooks for recognized schools in Punjab were estimated and shown in the annual financial statement and that the demands for grants, which were made under different heads, were sanctioned by the State Legislature and due Appropriation Acts were passed.
For the purpose of carrying on the business the Government do not require any additional powers and whatever is necessary for their purpose, they can have by entering into contracts with authors and other people.
This power of contract is expressly vested in the Government under ARTICLE 298 of the Constitution. In these circumstances, we are unable to agree with Mr. Pathak that the carrying on of the business of printing and publishing text books was beyond the competence of the executive Government without a specific legislation sanctioning such course.
Motilal v Uttar Pradesh (Bus Service case)
The point canvassed there was whether the Government of a State has power under the Constitution to carry on the trade or business of running a bus service in the absence of a legislative enactment authorising the State Government to do so.
Chief Justice Malik was of opinion that in a written Constitution like ours the executive power may be such as is given to the executive or is implied, ancillary or inherent.
Executive Power must include all powers that may be needed to carry into effect the aims and objects of the Constitution. It must mean more than merely executing the laws.
The State has a right to hold and manage its own property and carry on such trade or business as a citizen has the right to carry on, so long as such activity does not encroach upon the rights of others or is not contrary to law.
The running of a transport business therefore was not per se outside the ambit of the executive authority of the State.
Sapru, J., held that the power to run a Government bus service was incidental to the power of acquiring property which was expressly conferred by ARTICLE 298 of the Constitution.
Mootham and Wanchoo, JJ., who delivered a common judgment, were also of the opinion that there was no need for a specific legislative enactment to enable a State Government to run a bus service.
Indira Nehru Gandhi v Raj Narayan 1975
SoP in Indian constitution only in broad sense.
No rigid SoP as in US constitution
No constitution can survive without a conscious adherence to fine checks and balances.
Keshawananda Bharti 1973 4 SCC 225
SoP is part of of basic structure
Rule of Law is part of basic structure along with, Separation of Power, Judicial Review and Equality before law.
SC has power to declare laws as void on basis of Article 13.
Even Power to amend is subject to Judicial scrutiny
President of India enjoys both executive and law-making power
Article 103(1)-Decisions on questions as to the disqualification of members-members-decision of president to be final
217(3)-Judges to be appointed by President
Legislature too enjoys Judicial power
Impeachment of President
Impeachment of Judges
IR Cohello v TN AIR 2007 (9 Judges)
Pertains to Judicial Review of Schedule 9
NJAC Judgement
Separation of power is part of Basic Structure-NJAC Judgement.
L Chandra Kumar v Union of India 1997
Issues–
Whether Administrative Tribunals constituted either under Article 323A or under Article 323B of the Constitution, as they are functioning at present, can be said to be effective substitutes for the High Courts in discharging the power of judicial review?
Held–
While the Tribunals constituted under Articles 323A and 323 B can be vested with the power of judicial review over administrative action, the power of judicial review of legislative action cannot be conferred upon them.
SC amended the 226
Law commission Report 215-Need to revisit L Chandra Kumar.
Namit Sharma v UOI 2012 and was reviewed in 2013 (case is related to RTI and appointment of CIC)
SC said there is need to have some judicial person on board properly to accommodate post-retirement judges. There was no such provision in the Act.
Remedies–
Review Petition
Curative Petition
Appeal to higher appellate court.
CLASSIFICATION OF ADMINISTRATIVE ACTIONS
Why classification of administrative actions?
Present day Judicial Review employee conceptual classification of Administrative Action.
Quasi Legislative Actions (Rule making Action)
Quasi Judicial Actions (Rule decision/adjudication Action)
Administrative Actions (Rule Application Action)
Pure Administrative Actions (Ministerial Action)
Necessity of classification-
To know the nature and scope of action
For the purpose of determining the procedure to be followed.
To know the Ground on which the action may be challenged
QUASI LEGISLATIVE ACTION (RULE MAKING ACTION)
Law making power originally vested in the Union and States (combined reading of Articles 107-111 and 196 to 201)
This was the intention of the constitution makers.
But in todays times, these bodies cannot give the desired quality and quantity of laws required for the efficient functioning of a modern intensive form of a government.
So they delegate law-making power to the administration.
QLA possesses all characteristics of which a normal legislative function such as Generality and prospectivity.
PNJ does not apply to QLA but reasonableness and FairPlay in action must be observed.
UOI v Cynamide India Ltd,
Legislative Action has four characteristics-
Generality–
Promulgation–
Prospectivity–
Public Interest–
Rights and Obligation–
State of Punjab v Tehal Singh
That declaration determining the territorial area of a Gram Sabha is a Quasi-Legislative act of Administration.
QUASI-JUDICIAL ACTION
When An administrative authority has to act judicially: Judicial Mind: Judiciously
Application of Judicial mind, or acting Judicially.
Based on the facts of a case and declares a pre-existing right.
Distinction between QJA and QLA is difficult
Today bulk of decision affecting individual come from these bodies
Denotes Adjudicatory or decision making process
Following functions of Administration have been held to be QJA-
Disciplinary proceedings against students
Disciplinary proceedings against an employee for misconduct
Confiscation of goods under the customs Act
Cancellation, suspension, revocation of licence, permit etc
Determination of Citizenship
Determination of Statutory Disputes
Power to continue the detention or seizure of goods
Forfeiture of pensions and gratuity
Grant of permit by Regional Transport Authority
Registration of political party by Election commission.
Creation of Students committees
Creation of Deptt/centres/schemes
EC Resolution to supersede committee
Fixation/modification of price:MSP, Minimum wages etc
Fixation of Fee-application, admission, renewal, Examination, etc
Fixation of charges for services
Creation of Corporation by the State.
UOI v Cyanamide India Ltd. AIR 1987 SC 1802-dealt with price fixation.
Mangalam Organic Ltd v UOI 2017 7 SCC 221
Donoughmore Committee Report 1932 analysed the characteristics of QJA-
Pre-supposes a Lis between two parties
Presentation of the case
Ascertainment of questions of facts by means of evidence given by parties
Ascertainment of questions of law based on submission of legal arguments
A decision which disposes of the whole matter by applying laws to facts.
In case of Administrative decisions, there is no legal Obligation to consider and weight submissions and arguments. The grounds and procedure of decision making is left to the discretion of the authority.
Problems with Donoughmore Committee Report-
Judges not mere norm-producing slot machines
They do take into account policies, socio-economic and political consideration and philosophies.
Ridge v Baldwin was a landmark case of HoL-
Duty to act Judicially must arise from the very nature of function intended to be performed.
R v Electricity Commissioners 1924 1 KB 171 KBD-
Whenever any body of persons having legal authority to determine questions affecting rights of the subjects and having the duty to act judicially act in excess if their legal authority they are subject to the controlling jurisdiction of KBD exercised in these writs.
Province of Bombay v Kushal Das Advani 1950, para 160
That if a statute empowers an authority to being a court in ordinary sense to decide disputes arising out of a claim made by any party under the statute, then it is the duty of the authority to act judicially and the decision of the authority is a quasi-judicial act.
An admin action determines rights and liabilities of parties or adjudicate rights and liabilities
Ridge v Baldwin 1964-(PNJ was extended to Pure Admin Actions with civil consequences)
Brighton Police Authority dismissed its Chief Constable (Charles Ridge) without offering him an opportunity to defend his actions.
The Chief Constable appealed, arguing that the Brighton Watch Committee (headed by George Baldwin) had acted unlawfully (ultra vires) in terminating his appointment in 1958 following criminal proceedings against him.
The judges hearing the case extended the doctrine of natural justice (procedural fairness in judicial hearings) into the realm of administrative decision making. As a result, the case has been described as “the landmark case” that opened up decisions taken by the UK executive to judicial review in English law.
Radheshyam Khare v State of MP 1959 (Applying PNJ in administrative Actions)
Facts-The main point for decision in this appeal by the Municipal Committee of Dhamtari and its President was, whether in appointing an Executive Officer in exercise of its powers under S.53A of the C. P. and Berar Municipalities Act, 1922, the State Government acted in a judicial capacity or in an administrative.
Held–The real test whether the State Government functioned in a quasi-judicial capacity or in an administrative capacity in exercising its powers under S.53A of the Act was whether the statute required it to act judicially either expressly or by implication. The Act contained no express provision to that effect, nor could the determination of the fact of incompetency-as a condition precedent to any action under that section, by itself, carry such an implication. In making the notification under S.53A of the Act, therefore, the Government functioned in an administrative capacity and not in a quasi-judicial one.
AK Karaipak v UOI 1969
SC held that the action of making selection for government services is administrative, yet the selection committee is under a duty to act Judicially.
Very thin line between Administrative Power and Quasi-Judicial Power.
Facts–
In pursuance of the Indian Forest Service (Initial Recruitment) Regulation, 1966, a Special Selection Board was constituted for selecting officers to the IFS in the senior and junior scales from officers serving in the forest department of the State of J&K.
One of the members of the Board was the Chief Conservator of Forests of the State, as required by the Regulations. He was a Conservator of forests appointed as Acting Chief Conservator superseding another Conservator of Forests whose appeal to the State Government against his supersession was pending at the time the selections by the Board were made. The Acting Chief Conservator was also one of the candidates seeking to be selected to the IFS. The Board made the ‘selection of officers in the senior and junior scales. The Acting Chief Conservator’s name was at the top of the list of selected officers, while the names of three conservators, (including the officer who was superseded), who were the Acting Chief Conservator’s rivals, were omitted. The Acting Chief Conservator did not sit in the Selection Board at the time his name was considered, but participated in the deliberations when the names of his rivals were considered.
Issue-Whether violation of natural justice occurred?
Held–
The rules of natural justice operate in areas not covered by any law validly made, that is, they do not supplant the law of the land but supplement it.
They are not embodied rules and their aim is to secure justice or to prevent miscarriage of justice. If that is their purpose, there is no reason why they should not be made applicable to administrative proceeding also, especially when it is not easy to draw the line that demarcates administrative enquiries from quasi-judicial ones, and an unjust decision in an administrative enquiry may have a more far-reaching effect than a decision in a quasi-judicial enquiry.
State of AP v SMK Parasurama Gurukul; 1973 2 SCC 232 2 judges Para-03
Facts–
Whether power of govt. to appoint trustees under S.15 of the AP Charitable and Hindu Religious Institutions and Endowments Act 1966 is QJA or Admin?
Held–
The tests for determining whether a derision is administrative or quasi-judicial are :
There must be a lis;
The opinion of the tribunal should be formed on the objective and not on the subjective satisfaction of the tribunal; and
There must be a duty on the tribunal to act judicially.
In the present case, neither the respondent nor any of those appointed had a right to be appointed as a trustee. There was no proposition or opposition and hence there was no between the parties. Nor was there any question of contest between the authority proposing to do the act and the subject opposing it. Further, none of the other tests is satisfied in this case.
The legislature has left the matter to the discretion of the appointing authority subject to the guidelines laid down in Ss. 15 and 16.
Normally the appointing authority would exercise his own discretion as to who is best fitted to discharge the duties and functions of a trustee.
But that is not to say that the appointing authority must set out the reasons or record a speaking order as to why he has appointed a particular person as a trustee and not somebody else.
Indian National Congress v Institute of Welfare 2002 IMP
Issue-Whether function of EC to register a political party is Quasi-Judicial or Administrative?
Held–
If the authority has power to summon witnesses, enforce their attendance, examine them on oath and requires discovery and production of documents, its functions will be Quasi-Judicial.
Properties of QJA
There must be some a lis Dispute or differences: raised: grievances etc
Determination of rights and liabilities
Due process must be followed: No discretion
No delegation of such powers. IMP
Regulate its own process as per the Act or Rules: Informal process: Not CPC, CrPC, etc.
Objectivity in actions: Fairness-based on facts
Some trappings of civil courts: IPC & CrPC
Judicial And Quasi-judicial Action?
ADMINISTRATIVE ACTIONS (RULE APPLICATION ACTION)
Administrative Action and QJA do not have much difference.
In case of Administrative decisions, there is no legal Obligation to consider and weight submissions and arguments.
It is based onSUBJECTIVE SATISFACTION where decision is based on policy and expediency.
It does not decide a right, though it may affect someones right.
But PNJ cannot be ignored completely.
The grounds and procedure of decision making is left to the discretion of the authority.
AK Karaipak v UOI 1969 IMP
In order to determine whether the action of an administrative body is QJA or administrative, one has to see the nature of power conferred, to whom the power is given, the framework within which the power is conferred and the consequences.
State of AP v. SMK Parasurama Gurukul; 1973 2 SCC 232 2 judges Para-03
Facts–
Whether power of govt. to appoint trustees under S.15 of the AP Charitable and Hindu Religious Institutions and Endowments Act 1966 is QJA or Admin?
Held–
The tests for determining whether a derision is administrative or quasi-judicial are :
There must be a lis;
The opinion of the tribunal should be formed on the objective and not on the subjective satisfaction of the tribunal; and
There must be a duty on the tribunal to act judicially.
In the present case, neither the respondent nor any of those appointed had a right to be appointed as a trustee. There was no proposition or opposition and hence there was no between the parties. Nor was there any question of contest between the authority proposing to do the act and the subject opposing it. Further, none of the other tests is satisfied in this case.
The legislature has left the matter to the discretion of the appointing authority subject to the guidelines laid down in Ss. 15 and 16.
Normally the appointing authority would exercise his own discretion as to who is best fitted to discharge the duties and functions of a trustee.
But that is not to say that the appointing authority must set out the reasons or record a speaking order as to why he has appointed a particular person as a trustee and not somebody else.
Characteristics of Administrative Actions-
Administrative Action is a residuary action which is neither legislative nor Judicial.
It has no procedural obligation of collecting and weighting arguments.
It is based on SUBJECTIVE SATISFACTION where decision is based on policy and expediency.
It does not decide a right, though it may affect someones right.
But PNJ cannot be ignored completely.
Unless the statute provides otherwise, a minimum of the PNJ has to be followed depending on the facts and circumstances of each case.
Lists of Administrative Actions
Issuing directions to subordinate officers not having the focus of law.
Making a reference to a tribunal for adjudication under the Industrial Disputes Act.
Internement, Externment and Deportations.
Granting or withholding sanction to file under S.55(2) of Muslim Waqf Act 1954.
Granting or withholding sanction to file under S.92 of the CPC.
Fact finding action
Requisition, Acquisition and Allotment.
Entering names in Surveillance Register of Police
Power of Chancellor under the UP State Universities Act 1973 to take decision on the recommendation of the election committee in case disagreement of the Executive Council with such recommendation.
Functions of Selection Committee.
Decision to extend time for anti-dumping investigation etc.
Administrative Action may be statutory, having the force of law or non-statutory devoid of such legal force.
But the bulk of Administrative Action is statutory.
Violation of Administrative Action may be visited with disciplinary actions.
In all cases, Administrative Authority must Act Fairly, impartially and reasonably.
PURE ADMINISTRATIVE (MINISTERIAL ACTION)
It is further distillate of Administrative Action.
It is that action of Administrative agency, taken as a matter of duty imposed on it by the law DEVOID OF ANY DISCRETION OR JUDGEMENT.
The area of such action is limited as governmental function pre-supposes some kind of discretion.
When an authority is acting ministerially, it has no power to consult its own wishes.
Pure Administrative (Ministerial) Actions is of two types-
It can be of two types-
With civil consequences-
Appointment of any person to any post.
Without civil consequences-
Making some declaration, Notice etc on behalf of government.
Notification For Admission/ Appointment Etc
Notification for holding examination
Notification For Land Acquisition
Circulars
Resolutions
Commissions
No Determination of Disputes (may affect rights)
No Creation Of Rights
No Procedural Requirements can be Delegated;
Examples of Pure Administrative Actions-
Due Process
Notification For Admission/ Appointment Etc
Notification for holding examination
Notification For Land Acquisition
Notification For Appointment Of COI Under The Act Of 1952.
Collection of revenue.
Functions of committees and commissions
Mohinder Singh Gill v. CEC 1978 2 SCR 272 5 Judges bench Para- 71
Justice VR Krishan Iyer-
Civil consequences undoubtedly cover infraction of not merely property or personal right but of civil liberties, material deprivations and non pecuniary damages. In its comprehensive connotation, everything that affects a citizen in his civil life inflicts a civil consequences”
Ridge v. Baldwin Case of 1963 by House of Lords
The Brighton police authority dismissed its Chief Constable (Charles Ridge) without offering him an opportunity to defend his actions. The judges hearing the case extended the doctrine of natural justice (procedural fairness in judicial hearings) into the realm of administrative decision making. As a result, the case has been described as “the landmark case” that opened up decisions taken by the UK executive to judicial review in English law. (Wikipedia)
State of Orissa v. Dr Beena Pani; 1967 SC IMP
The first respondent joined the service of the State Government in 1958.
In 1961 the Government held an enquiry into her date of birth. She was then asked to show cause why a certain date should not be taken as her date of birth.
The report of the enquiry officer was not disclosed, and the first respondent was not given an opportunity to meet the evidence used against her. The Government refixed the date of birth of the first respondent and ordered that she be compulsorily retired. The first respondent then filed a writ petition in the High Court which was allowed. The State appealed.
AK Kraipak v. UOI ; 1969 5 judges SC
In pursuance of the Indian Forest Service (Initial Recruitment) Regulation, 1966, framed under R.4(1) of the Indian Forest Service (Recruitment) Rules made under the All India Services Act, 1951, a Special Selection Board was constituted for selecting officers to the Indian Forest Service in the senior and junior scales from officers serving in the forest department of the State of Jammu and Kashmir. One of the members of the Board was the Chief Conservator of Forests of the State, as required by the Regulations. He was a Conservator of forests appointed as Acting Chief Conservator superseding another Conservator of Forests whose appeal to the State Government against his supersession was pending at the time the selections by the Board were made. The Acting Chief Conservator was also one of the candidates seeking to be selected to the Indian Forest Service.
Latest cases of the SC: ACR-(Annual Confidentiality Report), etc,
Conducting Inquiry: deletion of name: ACR.
Reference of disputes by A/G to Labour Courts.
Promotion and Selection list: Rejection issue.
Termination of employment/suspension.
Transfer of a person to a subordinate post.
Cancellation of license, admission etc.
Dev Dutta v UOI 2008 8 SCC 725 (ANNUAL CONFIDENTIALITY REPORT)
Issue–
Whether non-communication of entry in ACR of an employee on pretext of any Govt. order or memorandum amounts to arbitrariness and violative of natural justice?
Held–
Every entry (not merely poor or adverse) relating to an employee under State or instrumentally of state.
Whether uncivil, judicial, police or other service (except military) must be communicated with in a reasonable time.
Object of writing ACR+making entries give an opportunity to improve his performance
Fairness and transparency in public administration.
Neelima Mishra v. Harvinder Kaur; AIR 1990 SC 1402-
LKO University invited application for scholars. Candidates were short-listed. Neelima Mishra had not done PHD but had high publications in her name. She was also selected.
Executive council rejected the application as she had no phd degree. The matter was refereed to the Chancellor. He without issuing any SPEAKING ORDER accepted her candidature. So others approached HC challenging Chancellor.
UP State Universities Act 1973 Section 31 (8) (a) : admin action or quasi-judicial action.
Tejshree Ghagh v Prakash Parashuram Patil 2007-
In the Education Department of the State of Maharastra there exists a cadre of Assistant Teachers. There are 16 categories of posts in the said cadre. Respondents were directly appointed as Assistant Deputy Education Inspector (for short, “ADEI”) pursuant to an advertisement issued by the State of Maharashtra on 01.10.1992. Advertisements for other posts in the same cadre were also issued, namely, for the posts of Asstt. Teacher, Physical Education Teacher, Science Supervisor etc. pursuant whereto appointments were made in the said post. However, no seniority list was published for a long time. A purported seniority list was published only on 09.08.2001. Allegedly, before publishing the said final seniority list objections were invited.
Respondents, as noticed hereinbefore, who were appointed as Assistant Deputy Education Inspector, were transferred to the post of Asstt. Project Officer/Asstt. Teacher and those who had been working as Asstt. Teacher/Asstt. Project Officer were transferred to the posts of ADEI. Indisputably, by reason of such orders of transfer, the respondents suffered civil consequences as the quantum of their pay was reduced.
Held-
The orders of transfer impugned before the Tribunal in any event could not have been passed without complying with the principles of natural justice.
ADMINISTRATIVE INSTRUCTIONS
Notes attached to the Rules which are not referable to any statutory authority.
They do not have force of law.
This is issued by the Superior Administrative Authorities to their subordinates.
Most efficacious technique for achieving uniformity in Administrative Discretion.
May be specific, general, directory or mandatory. It depends upon the provisions of the statute.
Directory instructions do not come from statute and hence unenforceable.
Even where admin instructions have statutory source, their bindingness depends upon several factors.
Raman and Raman Ltd v State of Madras 1959
Admin instructions issued under S.43-A of MV Act 1939 do not have force of law.
Jagjit Singh v State of Punjab 1978 (SC candidate case)
State of Punjab requested the public commission to select and recommend six candidates for filing vacancies in the PCS.
Exam was held. Appellant (SC Candidate) secures third rank amongst the SC candidates. Since only 20% of the reserved Quota was available, the first two SC candidates were selected. However one of them later resigned. The appellant who was next in merit on the selection list applied for the Job basing his claim on the State Government’s circular. Govt. rejected the claim.
HC dismissed the appeal.
SC accepted the appeal and held that if Administrative instructions do not run counter to the statutory rules, they are binding and their violation can be enjoined through a court of law.
Amitabh Srivastava v State of MP 1982
Court allowed the enforceability of administrative instructions even in view of the fact that they modified Statutory rules.
Bishambhar Dayal Mohan v State of UP 1982 (Telegraphic seizure of grans)
Facts-Grains of petitioners were seized by teleprinter message sent by the secretary to state government. Petitioners claimed violation of Article 19(1)(g) and 301.
Issue-Whether fundamental right can be curtailed by administrative instructions?
Held-SC evaded this question and held that the remedy lies in a suit for damages for wrongful seizure.
Amarjit Singh Ahluwalia v State of Punjab 1975 IMP
Even if Administrative instructions have no force of law but if they are consistently followed for a long time, government cannot depart from them at sweet-will without rational justification. Otherwise it would be violation of Articles 14 and 16 of the Constitution.
However no specific administrative instructions can be issued to a body exercising QJA.
UOI v Charanjit S Gill 2000 IMP
Summarised the law as-
The administrative instructions or the Notes attached to the Rules which are not referable to any statutory authority cannot be permitted to bring about a result which may take away the rights vested in a person governed by the Act.
The Government, however, has the power to fill up the gaps in supplementing the rules by issuing instructions if the Rules are silent on the subject provided the instructions issued are not inconsistent with the Rules already framed.
Administrative Discretion
INTRODUCTION
In layman’s word, discretion means choosing from amongst the various available alternatives without reference to any pre-determined criteria.
In Administrative sense, it means choosing from various alternatives available but with reference to the Rule of Reason and Justice and not according to personal whims and fancies.
The government cannot function without discretion.
Humanly impossible to lay down rules for every conceivable eventuality.
But absolute discretion is a ruthless master.
Misuse of discretionary power is an evil.
No set pattern of conferring discretion on an administrative authority-
Modern drafting techniques use the the following words to denote discretion-
Adequate, advisable, appropriate, beneficial, reputable, safe, sufficient, wholesome, deem fit, prejudicial to safety and security, satisfaction, belief, efficient, public purpose.
DIFFERENT THEORIES ON ADMINISTRATIVE DISCRETION
Green Light theory- Facilitation for governance
Discretion inevitable or inseparable or inalienable of admin: Powers or authorisation?
Cannot imagine of quality functioning without Administrative Discretion
Indicates, availability of Freedom or liberty or choices or alternatives : To act or not to act in one or the other ways: Different terms: may, deem fit, appropriate,
Controlled and limited Discretion
Nature of administrative actions and Discretion: Connection:
Necessity of Discretion
Part and parcel of the Administration
No Modern State can functions without Administrative Discretion
The government cannot function without discretion.
Humanly impossible to lay down rules for every conceivable eventuality.
SC Decision Bangalore Medical Trust v Teachers Union 1991: an effective tool in administration
Necessity:
For Effective and efficient governance:
Better decision and quality governance: Actions taken
To Meet Emergency: need immediate action:
To Facilitate Executive: to use expertise, promote independence:
Important factors for discretion
Factors: powers: Nature and Scope
SC Clarient International Ltd- 2004:
Purpose for which it is given
Objectives sought to be achieved
Reasons for the grant of discretion
Parameters of the Discretion
HOL on the issue: (Sharp v. Wakefield)
Susannah Sharp v. Wakefield , 1881 AC 173
Lord Halsbury: limitations of use of discretionary powers
CONTROLS OVER ADMINISTRATIVE DISCRETION
PARLIAMENTARY CONTROL
The Master controls servants: delegation control
JUDICIAL CONTROL
Judicial behaviour and Administrative Discretion in India-
Developed some parameters but lack the the activism of US courts.
Judicial Control Mechanism of Administrative Discretion is exercised at two stages-
Control at the stage of delegation of discretion.
Control at the stage of exercise of discretion.
Failure to exercise Discretion
Non application of mind
Acting under Dictation
Non- application of mind for discretion:
Refusal to use its discretion
Transfer its discretion to other:
Use of discretion on dictation
Abuse or Misuse of Discretion
Various grounds: improper use, irreverent consideration, mala fide, unreasonable, ultra vires
Improper use: different purposes:
Control at the stage of delegation of discretion–
Courts do this by adjudicating upon the constitutionality of the law under which such powers are delegated with reference to FR.
If the law confers vague and too wide discretionary power on any administrative authority, it may be declared as ultra-vires of Article 14, 19 etc.
Notable Instances of Administrative Discretion and Article 14–
State of WB v Anwar Ali Sarkar AIR 1952 IMP
Facts–
In order to speed up the trial for certain offences, S.5(1) of the WB Special Courts Act 1950 conferred discretion on the State Government to refer any offence for trial by Special court.
Since the procedure of trial before the Special court was stringent in comparison to normal courts, the respondents contended it to be unconstitutional under Article 14.
Held–
The court held the law to be invalid, on the ground ground that the value expressions like ‘speedier trial’ confers a wide discretion on the government and can be basis of unreasonable classification.
Kathi Rani Rawat v State of Gujarat 1952
Facts–
Saurashtra State Public Safety measures Ordinance 1949 (S.11)-4 types of
offences/classes of offences-empowered State government-direst for trial-special court.
Held–
Preamble-ordinance-referred-need to provide for public safety/maintenance of
public order/preservation of peace+Affidavit filed-State Government.
Similar provisions in S.173 CrPC.
Virendra v Punjab AIR 1957 SC 896.
Facts–
S.2(1)(a) Punjab Special Powers (Press) Act 1956 empowered
Prohibit publication of any matter relating to particular subject for maximum of 2 months was satisfied (Intelligence Report) that such action is necessary for the purpose of communal harmony.
Aggrieved party could make representation- government could modify/rescind order.
S.3(1) government prohibit bringing newspaper-if its contents prejudicial-maintenance of communal harmony.
Issue–
Broad powers curtail freedom of speech?
Discretion conferred arbitrary & unreasonable Art. 19(2)?
State of Punjab v Khem Chand 1974 IMP (Truck case)
Truck of Khem Chand was requisitioned by the DM Rohtak for famine relief work.
He challenged the constitutionality of the Act under which DM was given such power on the ground of violation of Art. 14.
Court upheld the contention that Act conferred wide discretionary powers upon authorities by not laying down proper guidelines for requisitioning of movable properties.
Manohar Lal v State of Maharashtra 1971
S.187A of Sea Customs Act gave wide discretionary powers to authorities to either refer a case of smuggled goods to a magistrate or to look into the matter for themselves.
Court held the validity on the ground that that discretion was to be exercised by senior officers and that will be a guarantee against its misuse.
Notable Instances of Administrative Discretion and Article 19
State of Bihar v KK Mishra 1969
S.144(6) CrPC gave discretionary power to State govt. to extend the life of an order passed by a magistrate beyond the period of 2 months if it was necessary for preventing damage to human life, health and safety or for preventing riot and affray.
It was held to be unconstitutional as it conferred blanket discretionary power capable of being exercised arbitrarily and would amount to unreasonable restriction on exercise of freedom under Article 19.
Himmat Lal K Shah v Commr of Police 1973 IMP (Public meeting case)
S.44(7) of Bombay police Act gave unguided discretionary power to police to grant or refuse permission for any public meeting to be held on public street.
Was held to be unconstitutional.
State of Madras v VG Row AIR 1952 (declaring any association unlawful case)
An amendment gave wide discretionary power to govt. to declare any association as unlawful.
Held to be unconstitutional for evading Judicial scrutiny.
State of Maharashtra v Kamal S Durgule 1985 (acquisition of vacant land)
Legislature had given wide power to an authority without any guidelines to declare any land vacant and thereafter acquire it. No provision was made to give notice or hearing to the owner.
Was held to be violative of Art.14.
SC observed that the fact that this power was given to senior officers makes no difference.
In certain situation, statute may not give discretionary power to authorities to take action but to frame rules and regulations affecting the rights of the citizens. Even such discretion can be controlled by the court on the ground of excessive delegation.
Control at the stage of exercise of discretion–
In India, unlike USA, there is no Admin Procedure Act providing for Judicial Review on the exercise of Admin Discretion.
TF power of JR arises from the constitutional configuration of courts.
Judicial proof discretion is negation of rule of law.
Courts have developed various formulations to control admin discretion-
failure to exercise discretion-That the authority is deemed not to have exercised its discretion at all.
abuse of discretion-That the authority has not exercised its discretion properly or.
These clause are not mutually exclusive and may overlap at times.
That the authority is deemed not to have exercised its discretion at all or failure to exercise discretion–
Court exercises Judicial control if the authority has either abdicated its power or has put fetters on its exercise.
Purtabpore Co Ltd v. Cane Commissioner of Bihar, 1970
Facts-The 5th respondent—a sugar mill situate on the Bihar side of the order-sought to have the area reserved for itself but by order dated November 30, 1966 the request was rejected by the State Government. In December 1966 the Cane Commissioner, Bihar passed an order reserving the said area of 208 villages for the appellant for the seasons 1966-67 and 1967-68. The 5th respondent made representations to the Chief Minister. Acting on directions given by the Chief Minister the Cane Commissioner, Bihar passed orders on November 14, 1967, whereby by a notification in the Bihar Government Gazette of the aforesaid villages were reserved for the appellant and 99 villages for the 5th respondent. The appellant filed a writ petition in the High Court challenging this order of the Cane Commissioner but the petition was rejected.
Held–From the material on record the only conclusion possible was that the Chief Minister imposed his opinion on the Cane Commissioner. The power exercisable by the Cane Commissioner under Clause 6(1) is a statutory power. He alone could have exercised that power. While exercising that power he cannot abdicate his responsibility in favour of anyone–not even in favour of the State Government or the Chief Minister. It was not proper for the Chief Minister to have interfered with the functions of the Cane Commissioner. In this case what had happened was that the power of the Cane Commissioner had been exercised by the Chief Minister, an authority not recognised by el.(6) read with Clause (11) but the responsibility for making those orders was asked to be taken by the Cane Commissioner. The executive officers entrusted with statutory discretions may in some cases be obliged to take into account considerations of public policy and to some context the policy of a Minister or the Government as a whole when it is a relevant factor in weighing the policy but this will not absolve them from their duty to exercise their personal judgment in individual cases unless explicit statutory provision has been made for them to be given binding instructions by a superior.
That the authority has not exercised its discretion properly or abuse of discretion–
This includes everything which English Courts include in ‘Unreasonable’ exercise of discretion and US courts include in ‘Arbitrary and Capricious’ exercise of discretion.
Indian Railway Construction Co. v Ajay Kumar 2003
A discretion must be exercised only by that authority on which it is conferred.
It must act under dictates of another body.
It must act in good faith.
Must have regard to all relevant considerations.
Must not be induced by irrelevant considerations.
Must promote the letter and spirit of the legislation.
Must not act arbitrarily or capriciously.
Test of Reasonableness
Not to be in defiance of logic and moral standards.
Exercise of discretion can be set aside if there is manifest error in the exercise of such power.
Must not be mala-fide.
S.R.Venkataraman v. Union of India 1979
Facts-
A government servant was prematurely retired from service in public interest under Rule 56(j) on attaining the age of 50 years.
She made a representation, but it was rejected.
In her writ petition under Art. 226 of the Constitution she alleged that she had a long and clean record of nearly three decades but that baseless allegations had been made against her, because of malicious vendetta of the then Chairman of the CBFC. She also alleged that the impugned order was arbitrary and capricious and that the retiring authority had not applied its mind to the record of her case.
Held–
There was nothing on the record to show that the Chairman of the Central Board of Film Censors was able to influence tho Central Government in making the impugned order.
It was not therefore the case of the appellant that there was actual malicious intention on the part of the Government in making the alleged wrongful order so as to amount to malice in fact.
Malice in its legal sense means malice such as may be assumed from the doing of a wrongful act intentionally but without just cause or excuse or for want of reasonable or probable cause.
It was not necessary to examine the question of malice in law as it was trite law that if a discretionary power had been exercised for an unauthorised purpose, it was generally immaterial whether its repository was acting in good faith or in bad faith.
When a public body is prompted by a mistaken belief in the existence of a non-existing fact or circumstance it will be an error of fact. That is so clearly unreasonable that what is done under such a mistaken belief might almost be said to have been done in bad faith.
When the respondent conceded that there was nothing on record to justify the impugned order, that order must be set aside for it amounts to an abuse of the power which was vested in the authority concerned as it had admitted the influence of extraneous matter.
It will be a gross abuse of legal power to punish a person or destroy her service career in a manner not warranted by law by putting a rule which makes a useful provision for the premature retirement of Government servants only in the “public interest”, to a purpose wholly unwarranted by it, and to arrive at quite a contradictory result.
An administrative order which is based on reasons of fact which do not exist must be held to be infected with abuse of power.
RD Shetty v International Airport Authority of India 1979
Facts–
The issue was the awarding of contact for running a second class restaurants and snacks bar by the International Airport Authority-a statutory corporation.
Tenders were invited from second-class hoteliers and it was clearly stipulated that the acceptance of tender would rest with the Airport director and may accept or reject the tender without assigning any reason.
The highest tender was accepted.
The only snag was that the tenderer was not an hotelier at all.
A writ petition was filed by a person who himself was neither tenderer not hotelier.
He grievance was that had he known earlier, he would have applied too.
Held–
SC accepted his locus standi and PN Bhagwati held that-
Exercise of discretion is inseparable part of sound administration and state cannot shed its limitation.
An Executive authority must be rigorously held to the standards by which it professes its actions to be judged and it must scrupulously observe those standards.
Officers cannot have arbitrary power in a democracy governed by the rule of law.
Every action of executive must be informed with reason and should be free from arbitrariness.
Govt. cannot take actions on whims and fancies like a private individual.
BHEL v M Chandrashekhar Reddy 2005 (Employee fraud case)
Issue-An employee had taken a housing loan by depositing the title deeds of the land. Later he tried to get the title deeds back on forged documents with the intention of selling the property. After inquiry his services were terminated. Labour court reinstated him on mitigating factors.
Held–
If reasons for exercise of discretion are not judicious, it is abuse of discretion. Mitigating factors are neither reasonable not judicious.
Authority must act in bonafide manner.
Discretion of quasi-judicial authorities must be hedged by policy, standards and procedural safeguards.
Air India Ltd v Cochin International Airport Ltd 2000
That decision making process and not decision which is amenable to Judicial Review.
Muni Suvrat Swami Jain Sangh v Arun Nathuram Gaikwad : 2007
Facts-This appeal is directed against the final judgment passed by the High Court directing the Municipal Corporation to demolish the entire illegal and unauthorised construction carried on by respondent.
Held–
Judicial discretion cannot be guided by expediency. Courts are not free from statutory fetters. Justice is to be rendered in accordance with law. Judges are not entitled to exercise discretion wearing robes of judicial discretion and pass orders based solely on their personal predilections and peculiar dispositions. Judicial discretion wherever it is required to be exercised has to be in accordance with law and set legal principles.
Court cannot direct an admin authority to exercise discretionary power in a particular manner.
Swaran Singh v State of UP 1998
The court remanded the case back to the governor who had granted remission of sentence in a situation when adverse material against the petitioner was not brought to his notice.
Thus apex court deviated from its earlier stance that there is a presumption against abuse of power vested in a high-ranking official.
Discretionary power has to be exercised to advance the purpose for which the power has been given.
Commissioner of Police v Gordhan Das (Cinema case)
Facts–
An application by the respondent for permission to build a cinema on a site within the City of Bombay was rejected by the Commissioner of Police, Bombay. The respondent applied for reconsideration of his application and the Commissioner, acting on the advice of the Cinema Advisory Committee, granted the application on the 16th July, 1947, though he indicated in an affidavit flied later that but for this advice he would have refused the application again. Subsequently, under instructions from Government the Commissioner withdrew the permission.
Held–
That there was nothing in the letter dated 16th July, 1947, to indicate that the decision was not that of the Commissioner himself given in the bona fide exercise of the discretion vested in him. The sanction was not consequently invalid merely because the Commissioner decided to accept the advice of the Cinema Advisory Committee even though without that advice he would not have granted the permission. There was no valid cancellation of the license because-
The order of cancellation communicated to the respondent ‘was one made by the Government of Bombay and not by the Commissioner on his own authority; he acted in the matter only as a transmitting agent;
Under the rules framed under S.22 of the Bombay Police Act 1902 the Government of Bombay had no power to cancel the license once issued. The only person vested with authority to grant or refuse a license for the erection of a building to be used for purposes of public amusement is the Commissioner of Police.
The other relief asking for an injunction directing the commissioner to withdraw the cancellation also could not be granted because Rule 250 vests the Commissioner with an absolute discretion in the matter.
Public orders, publicly made, in exercise of a statutory authority cannot be construed in the light of explanations subsequently given by the officer making the order of what he meant or of what was in his mind, or what he intended to do.
As such orders are meant to have public effect and are intended to affect the acting and conduct of those to whom they are addressed they must be construed objectively with reference to the language used in the order itself.
US and UK cases-
Padfield v Minister of Agriculture 1968
Laid down the parameters of Judicial control of admin discretion in UK.
Padfield and other milk producers in the South East Region argued they should get more milk subsidies to reflect growing transport costs.
They asked the Minister of Agriculture, Fisheries and Food to appoint a committee of investigation.
Exercising his unfettered discretionary power refused to direct the complaint.
Petitioners then applied to court to compel the Minister to appoint an investigation.
HOL held that ministers reasons were unsatisfactory and his decision was unreasonable.
Metropolitan Police Commissioner v Blackburn 1968
Illegal gambling had increased considerably in London.
Due to shortage of police personnels, Police Commr, by confidential instructions ceased observation of these clubs.
Thereafter a policy of not prosecuting these clubs was adopted.
One individual applied for the writ of mandamus to direct the police to do their duty and enforce the law.
Court held that the discretion of police was not absolute and uncontrollable.
Although the chief officers of police are answerable to the law, there are many fields in which they have a discretion with which the law will not interfere.
For instance, it is for the Commissioner of Police of the Metropolis, or the chief constable, as the case may be, to decide in any particular case whether inquiries should be pursued, or whether an arrest should be made, or a prosecution brought.
It must be for him to decide on the disposition of his force and the concentration of his resources on any particular crime or area.
No court can or should give him direction on such a matter.
He can also make policy decisions and give effect to them, as, for instance, was often done when prosecutions were not brought for attempted suicide.
Abuse of Discretion
Improper use: different purposes:
SC and HOL cases,
RL Arora v State of UP, 1962
The petitioner is the owner of certain land in Kanpur, U.P. On a previous occasion land acquisition proceedings were taken regarding this land for acquiring it for an industrialist. The petitioner questioned’ the validity of these proceedings and this Court by its judgment quashed the notification made under S.6 of Land Acquisition Act, 1894.
Thereafter certain amendments were made to Sections 40 and 41 of that Act by the Land Acquisition (Amendment) Act, 1961. The petitioner thereupon filed before this Court a petition under Art. 32 of the Constitution challenging the validity of the amended ss. 40, 41 and s. 7 of the amending Act.
The petitioner contended that the said sections violated Art. 31(2) and Art. 19(1)(f) of the Constitution inasmuch as Clause (aa) of the amended S.40 provided that all
acquisitions made for a company for construction of some building are permissible even though the building may not be for a public purpose.
Irreverent consideration:
State of Bombay v KP Krishnan, 1960
The appeals arose from an industrial dispute between the company and its workmen (respondents). It appears that the respondents addressed four demands to the company; they were in respect of gratuity, holidays, classification of certain employees and for the payment of an unconditional bonus for the financial year 1953. The management, however, told the conciliator that the said employees had received very liberal increments and had reached the maximum of their scales and so the management saw no reason to accede to the demand for classification.
State of Punjab v Gurdyal 1979
In 1962, a site was chosen for a grain market and the foundation stone for it was laid. This spot belonged to a cousin of Respondent No. 22, an ex-Minister and an influential politician.
This spot was eventually abandoned in favour of the lands of Respondents Nos. 1 to 21, which were notified in 1971.
The landowners resisted and successfully impeached the acquisition on the ground of mala fides before the High Court.
The Respondents Nos.1 to 21 assailed the acquisition before the High Court on the ground that the statutory power to acquire land had been misused to satisfy the personal ends of Respondent No. 22 and that the acquisition was not for a legitimate statutory purpose.
The High Court struck down the ‘declaration’, and invalidated the acquisition.
State of Punjab v VK Khanna 2000 (Prakash Singh Badal CBI case)
Facts–
Whereas the former Chief Secretary of the State of Punjab upon obtaining approval from the then Chief Minister of Punjab initiated proceedings against two senior colleagues of his in the Punjab State Administration but with the new induction of Shri Prakash Singh Badal as the Chief Minister of Punjab, not only the Chief Secretary had to walk out of the administrative building but a number seventeen officer in the hierarchy of officers of IAS was placed as the Chief Secretary and within 10 days a notification was issued, pertaining to cancellation of two earlier notifications initiating a (CBI) enquiry – The charges being acquisition of assets much beyond the known source of income and grant of sanction of a Government plot to Punjab Cricket Control Board for the purposes of Stadium at Mohali.
A worthwhile recapitulation thus depict that a Government servant in the Indian Administrative Service being charged with acquiring assets beyond the known source of income and while one particular Government initiates an enquiry against such an acquisition, the other Government within 10 days of its installation withdraws the notification is this fair?
Held–
The concept of fairness in administrative action has been the subject matter of considerable judicial debate but there is total unanimity on the basic element of the concept to the effect that the same is dependant upon the facts and circumstances of each matter pending scrutiny before the Court and no straight jacket formula can be evolved therefor.
As a matter of fact, fairness is synonymous with reasonableness: And on the issue of ascertainment of meaning of reasonableness, common English parlance referred to as what is in contemplation of an ordinary man of prudence similarly placed-it is the appreciation of this common mans perception in its proper perspective which would prompt the Court to determine the situation as to whether the same is otherwise reasonable or not.
Pratap Singh v State of Punjab; (Malafide suspension of doctor)
Facts–
The appellant was a civil surgeon in the employment of the State of Punjab. In 1956 he was posted to Jullundur where he remained till he proceeded on leave preparatory to retirement sometime in December 1960.
His leave was sanctioned on December 18, 1960, and was notified in the Punjab Gazette dated January 27, 1961.
On June 3, 1961, the Governor of Punjab passed orders suspending the appellant with immediate effect and revoking his leave as the Government had decided that a departmental enquiry be instituted against him under S.7 of the Punjab Civil Services (Punishment and Appeal) Rules, 1952.
The Governor further passed an order under Rule 3.26(d).
The order was that in view of the appellant’s reaching the age of superannuation on June 16, 1961, he should be retained in service beyond that date till the completion of the departmental enquiry.
By a writ petition filed under Art. 226 of the Constitution of India before the High Court of Punjab, the appellant challenged the legality of the orders of suspension, revocation of leave, retention in service after the date of superannuation and institution of the departmental enquiry, on the grounds inter alia,
That the rules governing his service did not empower the Governor to pass the impugned orders, and
That the impugned orders were passed mala fide by or at the instance of the Chief Minister, who was in-charge of the department of Health and who was personally hostile to him by reason of certain incidents, and that the orders were promoted by the desire on the part of the Chief Minister to wreak personally his vengeance on the appellant.
Held–
On the facts, the dominant motive which induced the Government to take action against the appellant was not to take disciplinary proceedings against him for misconduct which it bonafide believed he had committed, but to wreak vengeance on him for incurring his wrath and for the discredit that he had brought on the Chief Minister; the impugned orders were vitiated by mala fides, in that they were motivated by an improper purpose which was outside that for which the power of discretion was conferred on Government; and the said orders revoking the leave granted and placing the appellant under suspension and directing an enquiry into the charges against him, should be set aside.
Delegated Legislation
DL difficult to define-refers to all law-making which happens outside the legislature and is generally expressed as rules, regulations, bye-laws, orders, schemes, directions, notifications etc.
So Legislature only lays down the policy and guidelines of the law. (IMP)
DL simply means which proceeds from any authority other than the sovereign power and is dependent for its continued existence on some higher authority.
DL is also known as-
Rule Making power of Administration or
Quasi Legislative Action QLA or
Subordinate Legislation.
It includes all law-making which happens outside the legislature.
Today bulk of laws come form QLA.
Between 1973 to 1977, Indian parliament enacted only 302 laws compared to 25,404 enacted by delegated legislation in forms of rules, regulations etc.
Classification of Legislative Activities-
Primary legislative activities
Law making, modify, repeal etc.
Secondary legislative activities
To make rules, regulations, orders, notifications, notice, creating rights and liabilities
Need for DL-
Exigencies of modern state especially social and economic reforms.
Parliament only passes skeleton legislation.
Classic example is Imports and Exports Act 1947
Contains only 8 sections.
Rest power delegated to competent authorities.
Complexities of modern administration so baffling and intricate.
To meet emergency situations.
ODP suffers from limitation of lack of viability and experimentation.
Factors leading to the growth of DL-
Legislation on ever widening front of a Modern Welfare and Service State not possible.
Today legislation has become highly technical. TC continent for legislation to confine themselves to policy matters only.
Ordinary legislation process suffered from limitations of viability and experimentation.
To meet emergency situations, crisis etc
In some situations, it is necessary that law is not known to everyone till it comes into operation.
Where govt. action involves discretion ie expansion of public utility services.
Idea of direct participation in structurisation of law as indirect participation through election is difficult.
Problems-
Too much DL can be exploitative.
Since there is no democratic pressure on bureaucrats they may make rules isolated from popular pressure and which is socially less communicable, acceptable and effective.
TF for effective functioning of DL, the norms of jurisprudence of DL must be observed.
These norms include- VVV IMPORTANT
Clear statement of Policy
Procedural Safeguards
Control Mechanism
CLASSIFICATION OF DELEGATED LEGISLATION
DL has been classified in the following manner-
Title based classification-
Discretion based classification (Subordinate and conditional)
Purpose based classification-
Authority based classification (Sub-delegation)
Nature based classification (normal and exceptional)
Title based classification–
Most of them are defined in the General Clauses Act 1897.
Most of them are also used interchangeably.
Rules-They are made in exercise of power conferred by any enactment and shall include a regulation made as rule under any enactment.
Regulations-An instrument by which decisions, orders, and act of the government are made known to the public.
Power to fix the date for enforcement of an act or to grant exemptions from the Act or to fix prices.
Order-used to cover legislative and quasi-judicial decisions.
Bye-Laws-rules made by a semi-semi-governmental authorities established under the act of legislature.
Directions-This is used in two sense-
Constitution gives power to central govt. to give directions to state govt for execution of its laws.
Expression of admin rule making under the authority of law.
Schemes-refers to a situation where the law authorises an admin agency to lay down a framework within which the detailed admin action is to proceed.
Discretion based classification–
May be further classified as-
Subordinate/Delegated–
This is discretionary.
The admin authority is to manufacture the gun and then pull the trigger.
Some portion of the legislative power is delegated to the admin authority.
Open to attack on the ground of excessive delegation.
Contingent/Conditional–
This is fact finding.
Gun is provided by the legislature and admin is only required to pull the trigger.
The Statute is complete in itself but its operation is to depend upon fulfilment of certain conditions.
Contains no element of Delegated power.
This classification is based on the US decision of Field v Clark 1892
Inder Singh v State of Rajasthan 1957
Upheld the validity of Tenants protection Ordinance on the ground that it is conditional legislation. Ordinance was promulgated for 2 years but S.3 gave powers to governor to extend its life by issuing notification if required.
ITC Bhadrachalam v Mandal Revenue Office 1996
SC held that power conferred on govt. to bring an act into existence to grant exemption under it is a conditional legislation and not delegated legislation.
UOI v Gajanan Maharaj Sansthan 2002 IMP
That statute providing that its certain portion would come into force on a date to be notified by govt. is a conditional legislation and such a power did not enable the govt. to decide whether or not to bring that provision into force.
Re Delhi Laws Act AIR 1951 SC 332 IMP
IMPORTANT-This case is known as the Bible of Delegated Legislation–
Doctrine of SOP is not part of the Indian Constitution
Indian Parliament was never considered an agent of anybody and therefore the doctrine of delegatus non potest delegare has no application.
Parliament cannot abdicate or efface itself by creating a parallel legislative body.
Power of delegation is ancillary to the power of legislation.
The limitation upon delegation of power is that the legislature cannot part with its essential legislative power that has been expressly vested in it by the constitution.
Essential legislative power means laying down policy of the law and enacting that policy into a binding rule of conduct.
Conditional legislation is classified into 3 categories-
Statute enacted by the legislature, future applicability to a given area left to the subjective satisfaction of the Delegate as to the conditions indicating the proper time for that purpose.
Act enforced but power to withdraw it from operation given to the subjective satisfaction of the Delegate.
Power exercisable upon subjective satisfaction of the Delegate on objective facts by a class of persons seeking benefit of such power to deprive the rival class of statutory benefits.
Purpose based classification–
In accordance with the different purposes which it is made to serve-
Enabling Act-such Act contains an “appointed day” clause under which the power is delegated to the executive to appoint a day for the Act to come into operation.
Prescribes the gun and the target but leaves it to the executive to press the trigger.
Aimed at giving the executive the time to equip itself for the administration of the law.
Extension and Application of the Act-in respect of any territory or for duration of time or for nay other such object.
Dispensing and Suspending Acts–
Indian Registration Act 1908 delegated power to State government to exempt any carriage or class of carriage from all or any provision of the Act.
Such delegation must satisfy the test of Article 14.
Alteration Acts-Amounts to amendment in some cases and hence has been held to be unconstitutional.
Taxing Acts-Only if the policy of taxing has been clearly laid down in the legislation.
Supplementary Acts-Power is delegated to the authority to make rules to carry out the purpose of the Act.
The defence of India Act 1939-delegated power to make such rules as appear to be necessary or expedient for securing the defence of India, public safety, public order, prosecution of war, maintaining supplies and services essential to the life of the community, etc.
Such wide powers are also delegated to govt. under the Essential Commodities Supplies Act 1946.
Approving and Sanctioning Acts–
Power is delegated not to make rules but to approve the rules framed by other specified authority.
Classifying and Fixing standards Acts–
To fix standard of purity, quality or fitness for human consumption etc.
Penalty and Violation Acts-prescribe punishment for violation of certain rules.
Clarify the provisions of the statute Acts–
To issue interpretations on various provisions of the enabling Act.
These interpretations are generally not binding on anyone.
Authority based classification (Sub-delegation)–
Sometimes the rule-making authority delegates to itself or to some other subordinate authority a further power to issue rules.
Rule making authority cannot delegate its unless the power of delegation is contained in the Enabling act.
Such authorisation may be express or implied.
Courts have generally taken the stance that sub-delegation is invalid unless authorised by the parent Act.
AK Roy v State of Punjab 1986 (Food Adulteration Act case)
Power to initiate prosecution for offences under Prevention of Food Adulteration Act 1954 had been given to State Govt.
The Act did not provided for sub-delegation.
Nonetheless State govt, under the framed rules delegated this power to the Food Inspector.
It was held to be unconstitutional.
State v Amir Chand 1953
Authorisation of sub-delegation must be express and it cannot be inferred.
Essential Commodities Act 1955provides a unique sub-delegation fo power.
Under the Act sub-delegation is authored at two stages-
S.3 empowers the Central govt. to make rules.
S.5 authorises the sub-delegation of this power to State Governments
State Govts. Have been furthered empowered to sub-delegate this powers to their officers.
Maxim- ‘Delegatus non potest delegare’ means sub-delegation of power is normally not allowed though legislature can always provide for that.
Criticism–
Makes parliamentary control illusory
Postpones the rule making process
Makes publication of rules difficult
Must only be resorted in unavoidable situations
Committee on Subordinate Legislation in India suggested that sub-delegation is improper and some safeguard must be be provided before the delegate is allowed to sub-delegate his authority.
Nature based classification (Exceptional Delegation)–
The committee on Ministerial Powers distinguished two types of parliamentary delegations
Normal Delegation–
Positive-Limits of delegation are clearly defined in the enabling Act.
Negative-Power delegated does not include power to do certain things such as power to legislate on matters on policy.
Exceptional Delegation (Generally unconstitutional)
Instances of Exceptional Delegation are-
Power to legislate on matters of principles
Power to amend acts of parliament
Power conferring such a wide discretion that it is almost impossible to know the limits
Power to make rules without being challenged in the court of Law.
Such Exceptional Delegation is also known as Henry VIII clause to indicate executive autocracy. Henry VIII was king of UK in 16th century and he imposed his autocratic will through the instrumentalities of the Parliament so he is described as the ‘despot under the law’
Under this very wide powers are given to admin agencies including the power to amend and repeal.
Classic example in India is Article 372(2) of Constitution-President has been given power to adapt, amend and repeal any law in force to bring it in line with the provisions of the constitution and the exercise of such power has been made immune from the scrutiny of courts.
Another Example is-
State of WB v Brojo Nath Ganguly 1986
Regulation 34 of the WB Electricity Act authorised the board to terminate the services of any permanent employee on three months notice or pay in lieu thereof.
SC invalidated this ‘Naked hire and fire rule.’
Exceptional delegation had always been held unconstitutional.
CONSTITUTIONALITY OF DELEGATED LEGISLATION
When federal court became the highest court of appeal
The constitutionality of delegation of legislative power came before the federal court in-
Jatindra Nath Gupta v Province of Bihar AIR 1949
Bihar Maintenance of Public Order Act 1948 authorised the provincial government to extend the life of the Act for one year with such modification as it may deem fit.
Court held it to be unconstitutional for being an essential legislative Act which cannot be delegated.
In this case, court held that legislature can delegate its legislative power in India.
But later in Re Delhi laws case, court held that ESSENTIAL LEGISLATIVE POWERS cannot be delegated by legislature in India.
When Supreme court became the highest court of appeal
The decision of Jatindra Nath Gupta hadcreated doubt about limits of delegation of legislative power. Hence president under Article 143 sought advice of SC on the constitutionality of 3 Acts-
S.7 of Delhi Laws Act 1912-delegated to the provincial government to extend to Delhi any law in force in any part of British India.
Section 2 of Ajmer-Merwara Act 1947-delegated to the provincial government to extend to Ajmer Merwara Province any law in force in any other Province of British India.
Section 2 of Part C States 1950-delegated to the Central government to extend to Part C states any law in force in any Part A State.
TF in Re Delhi Laws Act v Part C States 1951 SC laid down the following principles-
IMPORTANT-This case is known as the Bible of Delegated Legislation–
Held that Legislature cannot delegate its essential legislative powers.
Doctrine of SOP is not part of the Indian Constitution
Indian Parliament was never considered an agent of anybody and therefore the doctrine of delegatus non potest delegare has no application.
Parliament cannot abdicate or efface itself by creating a parallel legislative body.
Power of delegation is ancillary to the power of legislation.
The limitation upon delegation of power is that the legislature cannot part with its essential legislative power that has been expressly vested in it by the constitution.
Essential legislative power means laying down policy of the law and enacting that policy into a binding rule of conduct.
On that basis-
S.7 of Delhi Laws Act 1912 is valid.
Section 2 of Ajmer-Merwara Act 1947 is valid
Section 2 of Part C States 1950 is valid.
Excessive delegation is unconstitutional
Legislature must discharge its ESSENTIAL LEGISLATIVE FUNCTIONS which includes-
Laying down the policy of the law and
Enacting that policy into a binding rule of conduct.
And then can delegate the ancillary or subordinate legislative functions to fill up details.
After laying down policy and guidelines, legislature may confer discretion on administration to execute the legislative policy and work out the details within the framework of the policy and guidelines.
Whether a particular legislation suffered from excessive delegation has to be decided by–
Subject matter of the law
Provisions of the statute including its preamble
Factual and circumstantial background in which it was enacted.
Whenever a statute is challenged on such ground-
Presumption shall always be the in favour of the constitutionality of the provision
If two interpretations are available, then that interpretation shall be taken into account which upheld its constitutionality.
What is an essential legislative function and where is the policy of the law to be found?
In Re: Delhi laws act-
Essential legislative power means laying down policy of the law and enacting that policy into a binding rule of conduct.
Rajnarain Singh v Chairman Patna Admn Committee AIR 1954
A provision empowered the Patna local admin to select any provision of the Bengal Municipal Act 1884 and apply it to Patna area with such restriction and medication as the govt. may deem fit.
Was held it to be unconstitutional.
Power to pick a section for application to another area amounts to delegating the power to change the policy of the Act which is an essential legislative power and cannot be delegated.
Harishankar Bagla v State of MP AIR 1954
S.3 of the Essential Supplies Act 1946 empowered the central government to make rules for the purpose of maintaining or increasing the supply of essential commodities and for securing equitable distribution at fair price.
S.6 furthered empowered that such orders shall have effect notwithstanding anything contained in the law.
SC held them both as valid.
That S.3 lays down the legislative policy with sufficient clarity within which the govt. can operate.
S.7 is not delegation of power to repeal but only attempt to bypass difficulty.
DS Gerewal v State of Punjab AIR 1959 (Civil Services case)
All India Services Act 1951 is a skeletal legislation having only four sections. S.3 of the Act empowered the central govt. to frame rules for the recruitment and regulation of conditions of service personals. On this basis govt. framed the All India Services Rules.
The court upheld the delegation as valid and found the policy of the act for the guidance of the admin rule making in the existing rules on the subject.
Hamdard Dawakhana v UOI AIR 1960 SC 554 IMP (excessive delegation)
Parliament passed the Drugs and Magic Remedies Act 1954 to check the mischief done on innocent patients by fraudsters.
S.3 laid down a list of diseases for which advertisements were prohibited and also authorised the govt. to include any other disease in the list.
SC stuck down the whole Act on the ground of excessive delegation of legislative powers.
That nowhere the legislature laid down the policy for guidance to the govt. in matters of selection of diseases being included in the list.
Avinder Singh v State of Punjab 1979 1 SCC 137 IMP (Levy on Liquor case)
Petitioners were licence holders for trade in foreign liquor.
State of Punjab in view of the powers vested in it by Section 90 of Municipal Act required Municipal bodies to impose a tax at the rate of 1/- per bottle of liquor.
Since Municipalities failed to take any action, State itself issued a notification imposing the tax.
It was challenged on the basis that State did not lay down the policy and purpose of the Act.
Court held that the words “for the purpose of the Act” laid down a clear policy of the Act and hence valid delegation of legislative powers.
Charan Lal Sahu v Union of India AIR 1990
The court found the legislative policy in the purpose of the Act. In this case, the Bhopal Gas Disaster (Processing of Claims) Act 1985 had been challenged on the ground that without laying down any policy and guidelines the government has been authorised to conduct suits and enter into compromises.
Gwaliar Rayon Silk Mfg v CST 1974 IMP
Justice KK Mathew find the act of SC finding the legislative policy from somewhere as undignified and laid down a new test to determine the constitutionality of the delegated legislation.
So long as legislature can repeal the enabling Act delegating law making power, it does not abdicate its legislative function.
But the majority led by Justice Khanna did not agree to this abdication test and reiterated the well established test of “Policy and guidelines”
Whatever may be the test, the fact remains that due to compulsions of modern administration, courts have allowed extensive delegation of legislative powers especially in the area of tax and welfare legislation.
The conclusive sum-up on this issue happened in the-
Mahe Beach Trading Co. v Union Territory of Pondicherry 1996 3 SCC 741 IMP
SC held that-
If there is abdication of legislative power or there is excessive delegation or of there is total surrender by the legislature of its legislative functions to another body, then that is not permissible.
There is no abdication, surrender or excessive delegation so long as legislature has expressed its will on a particular subject matter, indicated its policy and left the effectuation of that policy to subordinate or subsidiary or ancillary legislation provided that legislature has retained the control in its hand with reference to it so that it can check and prevent or undo the mischief by subordinate legislation.
It may be noted that the broad delegation of legislative powers in USA are counterbalanced by the effect procedural and legislative controls which are very feeble in India.
Indian SC in Food Corp of India v Bhanu Lodh 2005, said that no straitjacket formula is desirable and it will depend upon the facts and circumstances of each case.
Ishwar Singh v State of Rajasthan 2005 2 SCC 334
That sub-delegation of rule-making power does not imply parting with the power /authority.
NORMS OF JURISPRUDENCE OF DELEGATED LEGISLATION emerging from the decisions analysed above–
The power of delegation is a constituent element of the legislative power as a whole under Article 245 of the constitution and other relative Articles.
Delegation of some part of legislative power has become a compulsive necessity due to the complexities of modern legislation.
Essential legislative functions cannot be delegated.
ESSENTIAL LEGISLATIVE FUNCTIONS
Laying the policy of the Act and enacting that policy into a binding rule of conduct.
Legislature must lay down the legislative policy and purpose sufficient to provide a guideline for administrative rule-making.
The policy of the law may be express or implied and can be gathered form the History, preamble, title, scheme of Act to object and reason clause.
After the legislature has exercised its essential legislative functions, it can delegate non-essentials, however numerous and significant they may be.
In order to determine the constitutionality of the delegation of legislative powers, every case is to be decided in its special setting.
Courts have travelled to the extreme in holding very broad general statements as sufficient policy of the Act to determine the general question of constitutionality.
There are various forms of administrative rule-making. However the parameter for determining the question of constitutionality is the same, namely the legislature must lay down the policy of the Act.
The delegated legislation must be consistent with the parent Act and must not violate legislative policy and guidelines. Delegate cannot have more legislative powers than that of the delegator.
Sub-delegation of legislative powers in order to be valid must be expressly authorised by the parent Act.
The DL in order to be valid must not be unreasonable and must not violate any procedural safeguards if provided in the parent Act.
In determining the validity of delegated legislation if it is within the competence of the authority then motive of delegated legislation is not valid.
When the law allows delegation of admin power by an officer to another officer subordinate to him, he does not divest himself of all the power. The delegating authority will retain not only power to revoke the grant but also the power to ac concurrently on matters within the area of delegated authority, except insofar as it may already have bound himself by an act of the delegate.
While deciding on the constitutionality of delegated legislation court may take into consideration relevance of context and background in which power of rule making has been exercised.
Court has imported the PRINCIPLE OF PROPORTIONALITYin determining the constitutionality of delegated legislation especially in cases involving serious violation of public interest where this new doctrine may produce better results.
If the parent act is repealed, notification issued under it would also stand repealed unless saved by the repealing Act.
Constitutionality of delegation of Taxing power–
An analysis of the case suggest the following outcome-
Taxing power is an essential legislative power that cannot be delegated.
However the power to levy tax can be delegated only subject to the legislature itself exercising essential legislative function, namely laying down the policy of the Act which permits sufficient guideline for the imposition of tax.
Wide expressions like “for the purpose of the Act” have been held to be sufficient policy matrix only when power is delegated to a responsive and representative authority.
Within these limitations, the following powers may be validly delegated-
Power to exempt any item from tax
Power to bring certain items within the ambit of tax
Power to determine rate of tax within the minimum and maximum laid down in the act.
Power to determine rate of tax where no maximum and minimum limits are prescribed.
Power to select different rates of tax for different commodities provided there is a rational justification for it.
A change under a taxing statute can only be under the Act and not under the rules.
These principle show that direct control of Parliament over taxing power is on the decline.
One must remember that the first big battle of democracy was fought in Britain on the question of the right to impose taxes on his subjects at will.
Retrospective operation of delegated Legislation–
Before the landmark case of BS Yadav v State of Haryana 1980, the proposition was that an admin authority can make its rules with retrospective effect if the parent statute authorised that either expressly or impliedly.
For example-S.36-A of Admin Tribunals Act 1985 expressly authorised to frame rules with retrospective effect.
Article 309
In Mithilesh Kumari v Prem Behari Khare 1989, SC held that Benami Transactions Act 1988 shall apply to all pending suits including appeals as it serves a just public purpose.
But now under the BS Yadav v State if Haryana 1980–
It is not enough that parent statue authorise retrospective application of rules.
The authority must also show that there was sufficient, reasonable and rational justifications for applying the rules retrospectively.
Facts–
Governor of Punjab under Article 309, amended the seniority rules in 1976 and gave them retrospective operations.
Its effect was that the ‘date of confirmation’ which was the basis to determine the seniority in judicial services was replaced by the ‘length of continuous service in the post’ criteria.
SC stuck down the retrospective operation of this rule on the ground that there was no nexus or rational relationship between the rule and its retrospectivity.
Doctrine of promissory estoppel applies to DL.
So by giving a retrospective operation to a delegated legislation, admin authority cannot takeaway a right accrued in a person.
If the law does not provide for it, there can be no retrospective operation.
Retrospectivity of DL is subject to Article 20(1) of the constitution.
Unless the words in statute sufficiently show the intention of the legislature to affect existing rights, DL shall be deemed to be prospective only.
CONTROL MECHANISM OF DELEGATED LEGISLATION
Control mechanism of delegated legislation or administrative rule making in India comprises of three components-
Parliamentary Control
Procedural Control
Judicial Control
PARLIAMENTARY CONTROL
Every delegate is subject to the authority and control of the principal and the exercise of delegated power can always be directed, corrected or cancelled by the principal.
Direct General Control
This is exercised-
Through Debates on the Act containing DL, its necessity, extent, type etc
Through questions and notices. Rule 59 of the Procedure and conduct of business in Lok Sabha rules.
Through moving resolutions and notices.
Through vote on grant. (In case of budget demands)
Through a private members bill seeking modifications in the parent Act.
Direct Special Control
By laying on the table of the house, rules and regulations framed by the administrative authority.
In US, this technique is extensively used.
Laying may take various forms-
Laying with no further directions-they come into effect as soon as they are laid.
Laying, subject to negative resolution.
Laying in draft but subject to negative resolution
Laying in draft but subject to affirmative resolution
Earliest instance of Laying provision found in India are-
Immigration Act 1922.
Insurance Act 1938
Motor Vehicle Act 1939
Central Excise and Salt Act 1944.
Representation of the People Act 1951
Indian Services Act 1951
By the Delegated Legislation Provisions Act 1983, parliament has amended 40 Indian statutes and inserted provisions for laying before the State or Parliament as the case may be.
Narendra Kumar v UOI AIR 1960 SC 430
SC held that S.3(5) of Essential Commodities Act 1955, which provided that the rules framed under the Act must be laid before the Houses of Parliament has to be mandatorily followed.
Indirect Control
This is exercised by Parliament through its Committees.
In the 1950, Law Minister made a suggestion for the establishment of a committee of the House to examine DL.
Such a Committee on Subordinate Legislation of Lok Sabha was appointed in 1953.
Consisted of 15 members nominated by the Speaker
Tennure is one year
The committee has made the following recommendations-IMP
Power of Judicial Review should not be curtailed by DL/Rules
A financial levy should not be imposed by rules.
Language of the rules should be simple
Rules should not generally be given retrospective operation.
Legislative policy must be formulated by the legislature
Sub-delegation in a very wide sense is improper
Discriminatory rules should not be framed by the administration
Rules should not travel beyond the rule making power conferred by the parent Act.
There should not be inordinate delay in the making of the rules.
The defects pointed out to the administration should be cured ASAP.
The rules framed by the admin and required to be laid before the Parliament should be laid ASAP.
The final authority for the interpretation of rules should not rest with the admin.
Rules should contain short titles, explanatory notes, references to earlier amendments for proper understanding.
Sufficient publicity should be given to Statutory Rules and Orders.
PROCEDURAL CONTROL
Parliamentary control is often weak as legislators are sometimes innocent of legal skills. So an alternate mechanism is needed and procedural control mechanism has the potential to meet this requirement.
Procedural control mechanism operates in four components-
Drafting
Antenatal Publicity
Consultation
Post-Natal Publicity
Drafting
Drafting of DL by an expert draftsman is a valuable safeguard.
Language of the Rule should be plain and simple.
Antenatal Publicity
In India, there is no separate law governing the procedure of the administrative rule making and the parent may or may not provide for procedural requirement.
However in some cases, parent act have provided for antenatal policy.
S.43 of the Cooperative Societies Act 1912.
Antenatal publicity required by the Enabling Act attracts the application of S.23 of the General Clauses Act 1897 which requires-
That the rules be published in draft form in the gazette
That objections and suggestions be invited by a specific date mentioned therein.
That those objections and suggestions be considered by the rule making authority.
US experience shows that antenatal publicity is most beneficial in practice because those subject to administrative regulations tend to be the members of trade or business organisations which perform the routine task of scanning the FEDERAL REGISTER and alert their members about the proposed rule making.
American lobbying then wakes up to rally the originations viewpoint before the administration.
Consultation
This control mechanism makes admin rule making a democratic process and therefore increases its acceptability and effectivity.
In India there is no general law which provides for prior consultation with affected persons before rules and regulations are framed by administrative authorities.
Therefore the provision of prior consultation is sometimes provided in the enabling Act itself.
S.16(5) of the Electricity Act 1948 makes provision for consultation with the State Electricity Consultative Council before raising tariffs.
SC in Hindustan Zinc Ltd. v APSEB 1991 held that-
Failure to consult does not render the exercise of power invalid because consolation with the council has not been mandatory in the sense that no consequence is provided in the absence of such consolation.
In India, prior consultation made in the enabling Act may be grouped in 5 categories-
Official consultation with the named body.
Banking Companies Act provides for prior consultation with RBI before making rules under the Act.
Consultation with Administrative boards.
Mines Act 1901 sets up Admin Boards to advice the govt. and govt. has to mandatorily consult the Board before making rules under the Act.
Consultation with Statutory Board in the charge of a particular subject.
Under the Tea Board Act, Tea board has been constituted.
Consultation with interested persons.
For example in Land Acquisition cases.
Preparation of the rules by the affected interests.
Post-Natal Publicity
Postnatal publicity is a necessary element in the rule making process because the dictum that ignorance of law is no excuse is based on the justification that laws are accessible to the public.
In India there is no general law prescribing the mode of publication of rules.
TF publication of rules differs from statute to statute.
In some case, the law lays down publication in the Official Gazette.
SC in State of Orissa v Sridhar Kumar 1985, quashed the publication which had been made in the local newspaper but not in the local language.
Harla v State of Rajasthan 1951
Laws cannot be enforced unless published
In USA, they have the Federal Register Act 1935.
JUDICIAL CONTROL
In India, Judicial review of admin rule making is subject to normal rules governing the review of the admin actions.
Grounds of invalidity may arise on the following grounds-
That the Enabling/Parent Act is ultra-vires of the Constitution.
Article 13
Implied limits of the constitution were laid down in the case of-
Re Delhi Laws Act 1951
Legislature has to lay down the policy and admin has to bring that policy into action.
Legislature cannot delegate its essential legislative power and if does, the enabling act will be ultra-vires of the constitution.
Anwar Ali Sarkar v State of West Bengal
The whole West Bengal Special Trial Act was held unconstitutional in absence of clear policy and guidelines.
Hamdard Dawakhana v UOI 1960
S.3(d) of Drugs and Magic Remedies Act was held to be unconstitutional as the legislature has not provided sufficient guidelines for the exercise of the admin discretion.
Mohini Jain v State of Karnataka 1992
That defining the ‘Capitation Fee’ is an essential legislative function which cannot be delegated.
Chintamanrao v State of MP 1951 (Bidi case)
Court held that CP Regulation of Manufacturing of Bidis Act 1948 and the rules framed thereunder are ultra-vires Article 19(1) hence unconstitutional. The impugned act gave wide discretionary powers to the deputy commissioner to fix the agricultural season and prohibit the manufacture of Bidis in the notified areas in that season.
Whether a particular legislation suffers from ‘excessive delegation’ is a question to be decided by the court with reference to certain factors which may include-
Subject matter of the law
Scheme of the law
Provisions of the statute including the preamble
Factual and circumstantial background in which the law has been enacted.
Complexity of the problems which State has to face.
Liberal construction be given to the statute, its policy and guidelines
Statute even if skeletal will be valid.
Presumption of constitutionality
Where two interpretations is possible, the one that makes it constitutional shall be taken.
Article 13-Part III violation.
Liberal Construction
Pith and substance
Doctrine of severability
Reading Down
That the Administrative Rule is ultra-vires of the Constitution.
It may happen that the Enabling Act is not ultra-vires of the constitution yet the rules and regulations framed thereunder may violate any provision of the constitution.
Narendra Kumar v UOI 1960
That even if the enabling Act is intra-vires the constitutionality of the DL can still be considered because the law cannot be presumed to authorise anything unconstitutional.
Dwarka Prasad v State of UP 1954 (UP Coal case)
S.3(1) of the UP Coal Control Order issued under the State Coal Controller can exempt any person from licence requirement.
Was held to be unconstitutional under Article 19(1)(g) as it places unreasonable restriction by giving arbitrary powers to the executive in granting exemptions.
Himmat Lal Shah v Commissioner of Police 1973 (public gathering)
S.33(1) of Bombay Police Act had authorised the Commissioner of Police to make rules for the regulation of conduct and behaviour of assemblies and processions by prescribing the time and route.
Rule 7 framed thereunder provided that no public meeting shall be held without the prior permission of the commissioner.
Was held to unconstitutional under 19(1)(b)
K Pandurang v State of AP 1985
Quashed the AP Catering Establishment Order 1978 which made it compulsory for hoteliers to sell all seven items provided in the schedule.
Ultra vires of 19(1)(g)
Labh Chandra v State of Bihar AIR 1969 IMP
HC held that the rule providing for the management of Jain temples to be discriminatory and hence violative of Article 14.
The impugned Act had restricted the voting rights to person who had attained the age of 21 and had made a donation of not less than 500 to the temple and were also living within the state for the last 10 years.
Kerala Samsthana Union v State of Kerala 2006
That a rule making it compulsory for every toddy shop owner to employ one retrenched worker is arbitrary and hence violative of Article 14.
Prag Rice and Oil Mills v Union of India 1978
Mustard Oil Price Control Order 1947 passed under the Essential Commodities Act 1955 was challenged on the ground that it violated Article 14, 19 and 31 (omitted by 44th amendment). The Act had been place in the 9th schedule and got protection of Article 31(b) of the constitution and therefore could not be challenged for any alleged inconsistency with any provision of the constitution.
SC held that Article 31(b) saves only the Act and not the administrative rule making under it.
But both majority and minority held the constitutionality of the impugned order.
That the Administrative Rule is ultra-vires of the Enabling Act.
That it is in excess of the power conferred by the enabling Act.
Ibrahim v Regional Transport Authority 1953
That rules framed by the admin authority for fixing sites for the bus stand as invalid being in excess of power conferred by the Enabling Act which authorised the agency to make rules for the control of transport vehicles.
Ajay Kumar Banerjee v Union of India 1984
General Insurance Scheme 1980 which fixed salary patterns of employees was held to be violative of the General Insurance Business Act 1972.
The act authorised govt. to frame rules for the reorganisation of general insurance whereas the rules had provided for salary pattern for employees.
Tata Iron and Steel Co. Ltd. v Workmen 1972
That rules relating to the creation of a quasi-judicial tribunal for deciding certain disputes are not in excess of the power conferred by Section of the Coal Mines Provident Fund Act 1948 which authorised the govt. to make rules relating to bonus.
That it is in conflict with the Enabling Act.
That it is conflict with the prescribed procedure of the Enabling Act.
That it is unreasonable, arbitrary and discriminatory.
That it is mala-fide.
That it encroaches upon the rights of private citizens derived from the common law in the absence of an express authority in the Enabling Act.
That it conflicts with the terms of some other statute.
Validity and the vires if the legislation-primary or delegated has also to be tested on the anvil of the law-making power of the legislature.
Effect of an ultra-vires administrative legislation.
Waiver of the rule.
Vagueness.
Cases–
GOC v Dr. Subhash Chand 1988
DDA v Joint Action Committee 2008
JB Chopra 1987
Chintaman Rao v MP 1951 (Bidi case)
Administrative Adjudication
Massey Chapter 5, Page 165
Need for Admin Adjudication-
It is by-product of intensive form of government and consequential socialisation of law.
Today bulk of decision making comes from Admin Authorities.
Courts are overburdened
Admin Adjudication acts as a preventive justice rather than punitive justice. It is necessary that any spurious drink or rotten article of food must be destroyed or sealed before being offered for public sale. This can be done only by admin agencies exercising adjudicatory powers.
Court of Law and Admin Adjudication-
Americans put a lot of faith in Judges and therefore in judicialisation of admin process. British on the other hand, lay great emphasis on laymen and the informality of the admin process.
Some admin agencies exercising adjudicatory powers apply law to facts in the same manner as a court. For example-Tax Tax tribunals in India.
Distinction between formal courts and admin courts can be made on the basis of powers, discretion, functions, procedure, precedents, structure and qualification etc
The only difference between a court and admin agency seems to be the legislative classification.
Problems of Admin Decision making in India-
Lots of controversies exist in India.
While people are not alarmed when admin authorities are given law-making powers but brows are certainly raised when they are given adjudicatory powers.
Because people doubt in the independence of administrators as Judges and also fear their non-legal approach.
Police fear.
Other Problems include-
Number and complexity–
Bewildering variety of procedure–
Sometimes the procedure is laid down in the Act under which the agency is constituted and sometimes the agency is left free to develop to its own procedure. But in some cases, an agency is required to follow only minimum procedure of PNJ.
Unsystematic system of appeal-An appeal is a safeguard against an accident in the admin of justice. However no uniform system of appeal exists in Admin adjudication. MV Act, Land Acquisition Act etc.
Invisibility of decisions-Unlike courts, not all agencies publish their decision.
Unpredictability of decisions-Due to absence of bindingness of precedents. Predictability of decisions is an essential ingredient of the Rule of law which insists that justice must be done through known principles of law.
Anonymity of decisions-Many a times, no one knows where the decision came from. One fine morning a person receives a communication that President or governor is pleases to take such and such decision in his case.
Combination of functions-In most of disciplinary proceedings the functions of a prosecutor and the judge are either combined in one person or the same department. In such situations, situation bias cannot be ruled out.
No evidence rule-In India, technical rules of Evidence Act do not apply to admin adjudications.
State of Haryana v Rattan Singh 1977
A bus of HRTC with Rattan Singh was taken over by a flying squad and 11 persons were found to be without tickets though they claimed to have paid the money. However the inspector did not record the statements of those persons as required under the rules. After the formality of inquiry, the services of the conductor were terminated. HC quashed the decision on the ground of insufficiency of evidence and violation of PNJ.
SC reversed HC finding and said that the simple point in the case was whether some evidence there or no evidence at all. Because in admin adjudication evidence is required not in technical sense governing the regular court proceedings but in a fair common sense way as a man of understanding and worldly wisdom would accept.
Barely Electricity Supply Co. v Workmen 1971–
SC held that admin tribunals are not bound by the strict rules of evidence and procedure. But PNJ is still required.
Official perspective– This perspective include presumption of guilt rather than innocence.
Official bias–
Plea Bargaining-It means the bargaining of ‘plea of guilt’ with lesser charges and punishment. It is very common that a poor employee is bullied by an overbearing superior to accept the charge against him on the promise that a lesser punishment will be awarded.
Political interference– It is no hidden fact to people in India that officials act on dictate of politicians.
Off-the record consultation-
Reasoned decision-In India, generally there is no requirement for the administrative authority to give reasons.
Legal representation and cross-examination-This is generally absent.
Administrative versus Judicial Action-
Modes of Admin decision making-
Statutory Tribunals
The dictionary meaning of tribunal is ‘Seat of the Judge’ but in admin law, this term is used in a special sense and refer to adjudicatory bodies outside the sphere of ordinary courts of the land.
Under the constitution, in Articles 136, 226, and 227, the term court and tribunal have been used to mean different things.
ADMIN TRIBUNAL is the creation of a statute and thus has a statutory origin.
It has some trappings of court but not all.
It is entrusted with the judicial powers of state and thus performs judicial and quasi-judicial functions as distinguished from pure administrative or executive functions and is bound to act judicially.
Kihoto Hollohan v Sri Zachillu 1992
Whether an authority exercising adjudicatory powers is a tribunal or not the test is whether-
There is a lis-an affirmation by one party and denial by other party.
The dispute involved decisions on the rights and obligations of parties.
The authority is called upon to decide it.
In Indian context, the tribunal may be used in four different senses–
Firstly, all admin bodies exercising quasi-judicial functions whether as part and parcel of the department or otherwise may be termed as tribunals.
Secondly, all those admin adjudicatory bodies may be regarded as tribunals which are outside the control of the department involved in the dispute and hence decides the dispute like a judge free from any departmental bias. Income
Principles of Natural Justice
Based on IP Massey Chapter 6, Page 195
PNJ are basically judge made laws and are prime example of judicial activism
In India, no statute lays down the minimum procedure to be followed by the admin agencies.
In such a case, courts insist that admin should follow a minimum of fair procedure.
This minimum fair procedure refers to PNJ.
PNJ developed with the growth of growth of civilisation.
To protect him from the excesses of the organised power, man always looked to someone beyond his own creation. Such someone could only be god and his laws the natural and Devine laws to which all temporal laws should confirm to. This is the origin of PNJ.
PNJ Implies-
Fairness
Reasonableness
Equity
Equality
PNJ is a concept of ‘Common Law’ and its US counterpart is ‘PROCEDURAL DUE PROCESS’
PNJ is another name for ‘Common Sense Justice’.
PNJ is based on natural ideals and values which are universal.
Whenever the ‘Legal Justice’ fails to secure the substance and ends of ‘Justice’, PNJ is called in aid of ‘Legal Justice’
Role of Renaissance, reformation, humanitarianism in the development of PNJ
Individualisation of Justice led to the development of general principles for universal application which came to be known as PNJ
Historical Examples of PNJ
Roman concept of ‘Jus Naturale’
To be discovered by rational intelligence
Beyond customary and legal laws
Arthashashtra?
Islamic Law
Common Law
PNJ is pervasive facet of secular law to make fairness a creed of life.
PNJ has enriched law and constitution all over the world
PNJ in Indian Constitution-
Preamble-social and economic justice
Article 311-
Article 14-Equality before law
Applies not only to discriminatory class legislation but also to arbitrary or discriminatory State Action.
Because violation of PNJ results in arbitrariness, therefore violation of PNJ is violation of equality clause of Article 14 and 21.
Article 21-Substantive due process.
Olga Tellis v Bombay Municipal Corp 1985
Court barely saved S.314 of Bombay Municipal Corp Act 1888, which empowered the commissioner to get illegal constructions and structures removed or demolished without notice by holding that S.314 does not contain command, it only gives discretion to the commissioner which must be reasonably exercised.
Hindustan Petroleum Corp v HL Trehan 1889
Even when the authority has statutory power to take action without hearing, it would be arbitrary to take action without hearing and thus violative of Article 14.
DK Yadav v JMA Industries Ltd 1993
Even where statutory standing orders empowered the management to terminate the services of an employee who overstayed the leave period, without hearing, the termination of services without hearing would be violative of Article 21.
Procedure of law which deprives a person of his livelihood without hearing cannot be just, fair and reasonable under Article 21.
SBI v KP Narayan Kutty 2003
PNJ have to be read into relevant service rules.
In this case, enquiry officer had found certain charges against an officer of the bank as partly proved, yet passed an order for his dismissal.
Situations in which PNJ are attracted-
Whenever a person suffers a civil consequence or a prejudice caused by any administrative action.
Civil consequence includes-
Infraction of personal or property rights.
Violation of civil liberties.
Pecuniary or non-pecuniary damages.
Material deprivation.
Loss of legitimate expectation.
Tejshree Ghagh v Prakash P Patil
Where an employee is transferred to a non-equivalent post resulting in loss of pay he suffers a civil consequence as his status and salary are adversely affected, hence PNJ is attracted.
PNJ is attracted in both admin order and quasi-judicial order.
For 400 years Anglo-American courts have applied 2 principles of PNJ-
NEMO IN PROPRIA CAUSA JUDEX, ESSE DEBET
It means the Rule against Bias
No one should be made a judge in his own case as he/she will be biased against the other party.
AUDI ALTERAM PARTEM
It means the Rule of fair hearing
Hear the other Party or the rule of fair hearing or the rule that no one should be condemned unheard.
SPEAKING ORDER
Involves giving reasons for any decision
When u are giving the decision, give reasons and justifications for arriving at that decision. For the reasons aforesaid, it must be concluded that except in cases where the requirement has been dispensed with expressly or by necessary implication, an administrative authority exercising judicial or quasi-judicial functions is required to record the reasons for its decision (SN Mukharjee v UOI 1990)
Neelima Mishra v. Harvinder Kaur; AIR 1990 SC 1402-
LKO University invited application for scholars. Candidates were short-listed. Neelima Mishra had not done PHD but had high publications in her name. She was also selected.
Executive council rejected the application as she had no phd degree. The matter was refereed to the Chancellor. He without issuing any speaking order accepted her candidature. So others approached HC challenging Chancellor.
GOOD FAITH
Decision must be made according into factual matrix and the law. The person himself is not involved in any capacity. Eg. caste, poverty bias.
SN Mukharjee v UOI 1990
“The concept of natural justice has undergone a great deal of change in recent years. In the past it was thought that it included just two rules namely
(i) no one shall be a Judge in his own cause (nemo dabet esse judex propria causa) and
(ii) no decision shall be given against a party without affording him a reasonable hearing (audi alteram partem).
Very soon thereafter a third rule was envisaged and that is that quasi-judicial enquiries must be held in good faith, without bias and not arbitrarily or unreasonably. But in the course of years many more subsidiary rules came to be added to the rules of natural justice.”
RULE AGAINST BIAS (RAB)
Conflict of interest
Bias means an operative prejudice whether conscious or conscious which may result from-
Preconceived notion,
Predisposition or
Predetermination to decide a case in a particular manner.
Partiality
Means a preference which is not founded on reason and is actuated by self-interest whether pecuniary or personal.
Judge should be impartial and must decide the case objectively on the basis of the evidence on record and merits of the case.
Predisposition to decide for or against one party without regard to the merit of the case is bias.
Decision should be based on evidence on record.
Rationale is that a person cannot take an objective decision in a case in which he has a self-interest for human psychology tells us that very rarely people take decisions against their own interests.
Crawford Bayley v UOI 2006
Doctrine of RAB comes into play if it is shown that the officer concerned has a personal connection or personal interest or has personally acted in the manner concerned and has taken taken decision on way or other which he may be interested in supporting.
Rule of disqualification in case of personal bias is also to secure public confidence in the adjudicatory process.
Not only must ‘no man be a judge in his own cause’ but also ‘justice should not only be done but should manifestly and undoubtedly be seen to be done’
Minimal requirement of PNJ is that the authority must be composed of impartial person acting fairly without prejudice or bias.
Inference of bias can be inferred from factual matrix.
CASES WHERE RAB IS NOT ATTRACTED
Principle of RAB will not apply where the authority has no personal lis with the person concerned.
Electricity Board deciding the case of malpractice and pilferage by consumers of electricity is not not violation of RAB.
If the preference is rational and unaccompanied by considerations of personal interest pecuniary or otherwise, it would not vitiate a decision.
For example-a senior officer expressing appreciation of the work of a junior in the confidential report, it would not amount to bias not it would it preclude that officer from being part of the departmental promotion committee.
TYPES OF BIAS
Personal Bias–
Aries from a certain relationship equation between the deciding authority and the parties which incline him favourably on the side of one party.
Mineral Development Corp. Ltd v State of Bihar 1960
Petitioners were granted mining licence for 99 years in 1947. But in 1953 Secy of Revenue board sent a show cause notice to them as to why the licences should not be cancelled and some times later they were cancelled.
Action was challenged on the ground of personal bias.
Raja Kamakshya Narayan Singh-owner of Mineral Development Corp had opposed the Minister in the general election in 1952.
SC quashed the cancellation order.
Reasonable likelihood of Bias/Reasonable suspicion of bias.
To successfully challenge an admin action on grounds of personal bias, one has to prove that there is a reasonable suspicion of bias.
Difficult to prove the state of mind of a person
Can be proved from cumulative circumstances of the case.
Reasonable apprehension
Test of ‘Real Likelihood of Bias’ is whether a reasonable man in possession of relevant information would have thought that bias was likely and whether the authority concerned was likely to be disposed to decide the matter in a particular way.
AK Karaipak v UOI 1969
Naquishband was the acting Chief conservator of forests, a member of the selection board and also the candidate for selection to all India cadre of the forest service.
Charanjit Singh v Harinder Sharma 2002
That there is a real likelihood of bias when in a small place there is a relationship between selectees and the members of the selection committee.
DC Aggarwal v SBI 2006
That the interview committee in which certain members were those who had been impleaded as respondents in a litigation by the appellant be reconstituted and the case of his promotion be considered afresh. However when the reconstituted committee again rejected his claim for promotion on ground of poor performance, it cannot be presumed that all of them were working hand in gloves.
Manak Lal v Prem Chand AIR 1975
Disciplinary proceedings before BCI, Chairman of disciplinary committee had earlier represented respondent in a case
Chairman had no recollection of respondent
No reasonable likelihood of bias, but chairman was nonetheless disqualified
J Mahapatra v Orissa AIR 1984 (Book wala case)
Assessment committee recommended books.
Persons whose books were recommended were also members of committee.
But ordinarily members would withdraw when their book was to be assessed.
Whether there is any chance of bias in selection or non-selection of books?
SC held that in such a case, there is every likelihood of bias.
Element of quid-pro-quo with other members cannot be eliminated.
Gangabai Charities v CIT 1992 IMP
A lawyer acting as a special counsel for the IT Department opined that the assessee trust was not entitled to tax exemption. Later on he was elevated as Judge of HC and 7 years later he decided the same case against the Trust.
SC held that there was no real likelihood of bias as opinion had been given 7 years ago and judge may not have remembered the routine opinion given as a busy lawyer after a long lapse of time.
But in-
Fakharuddin v Principal Custodian 1995
SC held that when a judge who was formerly the lawyer of the client whose case he decides even after objection there is a real likelihood of bias.
Pecuniary Bias
Judicial approach is unanimous and decisive that any financial interest however small it may be would vitiate administrative action.
R v Hendon Rural District Council 1933
Court quashed the decision of the planning commission where one of the members was an estate agent who was acting for the applicant to whom permission was granted.
J Mahapatra v Orissa AIR 1984
Assessment committee recommended books
Persons whose books were recommended were also members of committee
But ordinarily members would withdraw when their book was to be assessed
Whether there is any chance of bias in selection or non-selection of books?
SC held that in such a case, there is every likelihood of bias. Element of quid-pro-quo with other members cannot be eliminated.
Subject-Matter Bias
Where the deciding officer is directly or indirectly involved in the subject matter of the case.
Mere involvement would not vitiate the administrative action unless there is a real likelihood of bias.
R v Deal Justices 1881
A magistrate was not declared disqualified to try a case of cruelty to an animal on the ground that he was a member of the Royal Society for the prevention of cruelty to animals as this did not prove a real likelihood of bias.
Murlidhar v Kadam Singh 1954
Court refused to quash the decision of the Election Tribunal on the ground that the wife of the Chairman was a member of the Congress Party whose candidate the petitioner defeated.
Sub-committee on Judicial Accountability v UOI 1991
Court did not allow challenge of bias against the speaker for his actions under the Judges Enquiry Act 1968 on the basis that he was affiliated to a particular political party.
Gullapalli N Rao v APSRTC AIR 1959 (IMPORTANT)
Petitioner challenged the order of government nationalising road transport on the ground that secy of transport department who gave the hearing was biased, being the person who initiated the scheme and also being the HoD whose responsibility it was to execute it.
SC quashed the decision of AP Govt, nationalising road transport on the ground that secy of Transport Department who was given a hearing was interested in the subject matter.
Departmental/Institutional Bias
Gullapalli N Rao v APSRTC AIR 1959
Petitioner challenged the order of government nationalising road transport on the ground that secy of transport department who gave the hearing was biased, being the person who initiated the scheme and also being the HoD whose responsibility it was to execute it.
SC quashed the decision of AP Govt, nationalising road transport on the ground that secy of Transport Department who was given a hearing was interested in the subject matter.
Problem of departmental bias also arise in different context-when function of judge and prosecutor are combined in the same department.
Many times, the same department which initiates the matter also decides it, therefore at times departmental fraternity and loyalty militates against the concept of fair hearing.
Krishna Bus Service v State of Haryana 1985
SC quashed the notification of govt. which had conferred powers of DSP on the general manager of Haryana Roadways in matters of inspection of vehicles on the ground of departmental bias.
Private bus operators alleged that the general manager of Haryana roadways who was also a rival in business in the state could not be expected to discharge his duties in a fair and reasonable manner and would be too lenient in inspecting the vehicles belonging to his own department.
Preconceived Notion Bias (GOOD FAITH)
Bias emnating from one’s preconceived notions.
Judges are human beings and they may have their own biases.
Bias emnating from strong convictions as to policy may operate as serious threat to fair action.
Govindraja Mudaliar v State of TN 1973
Govt decided to nationalise road transport and appointed a committee headed by Home Secretary who made a report in favour of nationalisation.
Later scheme of nationalisation was finalised and objections were heard by home secretary.
It was contended that hearing was vitiated by RAB as secy already had made up his mind regarding nationalisation.
Court rejected the argument on the ground that secy as a member of the committee did not finally determine nay issue so as to foreclose his mind.
Bias on account of Obstinacy
It implies unreasonable and unwavering persistence and the deciding officer would not take no for an answer.
This kind of bias discovered in a situation where a judge of Calcutta HC upheld his own judgement while sitting in appeal against his own judgement.
Doctrine of necessity-
Bias would not disqualify an officer from taking an action if no other person is competent to act in his place.
The term bias must be confined to its proper place. If bias arising out of preconceived notions means the total absence of preconceptions in the mind of the judge, then no one has ever had a fair trial and no one ever will.
Crawford Bayley Co v UOI 2006 6 SCC 25
Sheonandan Paswan v Bihar AIR 1983
Withdrawl of Criminal cases held valid u/s 321 CrOc 1973 against former CM.
One deciding judge resigned 46 days prior to retirement.
Nominated as election candidate.
Won+became minister in ruling govt.
Hari v DCP AIR 1956
ECI v Subramaniam Swamy 1996 4 SCC 104
Issue-Adjudication of qualification of MLA, bias was alleged against CEC because he is close to complaint.
Court-If suspicion of bias, CEC should excuse himself from participating, other two EC’s decide.
Difference of Opinion<>two EC’s then CEC have to participate on ground of necessity.
WB v Shivananda Pathak AIR 1998 SC 20150
Unreasonable, unwavering persistence of deciding officer.
Judgement set aside by superior courts, must submit to that judgement.
Cannot rewrite overruled judgement in same or collateral proceedings.
TG Mudaliar v TN 1973
Govt decided in principle to nationalise road transport, secretary being member of committee+later heard objections to scheme.
Issue-is hearing vitiated as secretary being member had made up his mind already being part of policy decision?
AUDI ALTERAM PARTEM
The rule of fair hearing.
This is the second long arm of PNJ which protects common man from arbitrary administrative actions whenever his right to personal property is jeopardised.
AAP is the basic concept of NJ.
Rationale is that no one should be condemned unheard.
To ensure fair play and justice to affected persons.
Justice should not only be done but should manifestly and undoubtedly be seen to be done.
Article 14 and 21 of Indian constitution.
Bank of Patiala v SK Sharma 1996
Distinction between a total violation of the rule of fair hearing and violation of a facet of that rule.
In former case, order passed would undoubtedly be invalid and the authority may be asked to conduct the proceedings afresh but in the latter case it will be seen whether in totality of circumstances the person has suffered a prejudice.
Cooper v Wandsworth Board of Work 1861
Laws of God and man both give the party an opportunity to make his defence if he has any.
Even God himself did not pass sentence upon Adam before he was called upon to make his defence.
Civil consequence-cover infraction of not merely property or personal rights but also of civil liberties, material deprivations and non-pecuniary damages. In its comprehensive connotation everything that affects a citizen in his civil life inflicts a civil consequence.
When persons enjoy certain benefits under a policy of government, even though they may not have a legal right, still they cannot be deprived of their legitimate expectations by changing the policy without following the principle of fair hearing.
Piara Singh v State of Punjab 2000
Before setting aside auction sale on ground of defective proclamation, the authority ought to give notice and hearing to the highest bidder as his right would be adversely affected.
SL Kapoor v Jagmohan 1980 (IMP)
Earlier the rule was that PNJ will apply only where an admin action has caused some prejudice to the person as a result of which he suffered civil consequences.
But in this case court took a bold step by saying that a separate showing of prejudice caused is not necessary.
Non-observance of PNJ is in itself a prejudice caused.
Duty to act Judicially/Fairly
Law is clear that in all cases classified as quasi-judicial there is a duty to act judicially ie to follow PNJ.
But in cases classified as administrative, there is only a duty to act fairly which means that admin authority should not act arbitrarily or capriciously.
AK Karaipak v UOI 1969.
Dividing line between quasi-judicial and admin authority became thin.
Keshav Mills Co Ltd v UOI 1973
Govt. on the basis of a report of an inquiry committee had taken over the management of the mill company, which had been closed down without supplying the copy of the report to the management and without affording an opportunity of hearing.
Court held that admin authority concerned should act fairly, impartially and reasonably.
RIGHT TO NOTICE
Originated from latin word ‘Notitia’ which means being known.
Notice embodies rule of fairness and must precede an adverse order.
It should be clear and precise so as to give the party adequate information of the case he has to meet.
Adequate time should be give to to the person so that he can respond effectively. (30 days)
Denial of notice and opportunity to respond make admin decision completely vitiated.
If statutory requirement then must be given in a manner provided by law.
Court held that if a cheque has been dishonoured proper notice as required under the negotiable instrument act must be given either by post or courier and just personal information to the drawer will not suffice.
Notice is the starting point of any hearing.
An adequate notice must contain the following–
Time, place and nature of hearing
Legal authority under which hearing is to be held
Statement of specific charges which the person has to be meet.
Content of notice and time of notice is also essential.
State of J&K v Haji Wali Mohammad 1972
When only 24 hours were given to demolish a structure allegedly in a dilapidated condition, court held that notice was not proper.
Govind Singh V Subbarao 1971
Where the notice contained only one charge the person cannot be punished for any other charge for which the notice was not given.
Shiv Sagar v UOI 1997
If notice is to be given to a large class persons who are educated, it may be given by publishing it in a newspaper.
A notice published in newspapers to enable the out-of-turn allottees of govt. quarters in Delhi to represent before the SC against proposed cancellation of allotments is sufficient and adequate notice.
Keshav Mills v UOI 1973
Where the party concerned already knows the case against it, requirement of notice will not insisted upon as a mere technical formality.
State of Karnataka v Mangalore University Non-teaching Employees Association 2002 IMPORTANT
That where no prejudice is caused to the person on account of non-affording of opportunity to make representation, violation of PNJ cannot be insisted upon.
In this case house house rent and city compensatory allowance were given to employees at a much higher rate. A latter date the government wanted to recover excess payment.
Court held that action taken for the recovery of excess payment without notice and affording opportunity to make representation did not vitiate the action.
UOI v Narendra Singh 2008 IMPORTANT
Even if a mistake in decision making process is to be corrected which has adverse consequences for a person, he must be given notice.
In this case, an erroneous promotion had been cancelled without following the due process of law.
However if the error is apparent on the face of record, the opportunity of hearing may not be given.
State of Bombay v Atma Ram 1951
Article 21 requires that a detenu must be furnished with the grounds of detention and if the grounds are vague, the detention order may be quashed by the court.
Abdul Latif v Commissioner 1978
A notice is vague if does not disclose/specify the action proposed to be taken or the grounds on which licence is to be cancelled.
Consequence of Non-Issuance of notice?
In CST v Subhash Chandra, following principles emerged-
Non-issuance of notice does not affect the jurisdiction of authority, if otherwise reasonable opportunity of being heard has been given.
Issue of notice as prescribed by law constitutes a part of reasonable opportunity of being heard.
If prejudice has been caused by non-issue or invalid/irregular service of notice, proceedings would be vitiated.
In case of non-issue of notice or defective notice which violates PNJ, an admin authority may decide the case de-novo with proper notice.
Show cause notice if contains unspecified, vague or unintelligible allegations would imply a denial of proper opportunity of being heard.
Right to know the evidence against him
Right to present case and evidence
Right to rebut adverse evidence
Cross-examination
Legal Representation
No evidence should be taken at the back of other party
Report of the enquiry to be shown to the other party
REASONED DECISIONS OR SPEAKING ORDER
Tarcholan Dev State 2001 (IMP)
Parties to dispute are entitled to now the reason for the decision.
Institutional decision or ONE WHO DECIDES MUST HEAR
Rule against dictation
Financial incapacity to attend enquiry
Decision post-haste
Should the third party to dispute be heard
Post Decisional Hearing
Menaka Gandhi
Hiranath Mishra case v Rajendra Medical College.
Origin of Natural Justice-
Divine attribution.
Useless Formulation Theory
Aristotle
Kautilya
Roman law
Development-
Dr. Bonham case (1610)
Due process clause-US Constitution
Court:
Decide:question without bias
Opportunity:adequately presenting case.
Local Govt. Board v Arlidge (1915) AC 120
Art. 14
Satyavir Singh v UOI 1985 4 SCC 252
Canera Bank v DK Awasthi (para 11)
AK Karaipak v UOI (para 20)
Applicability
Ridge v Baldwin
Maneka Gandhi v UOI
Mohinder Singh Gill v CEC
Rajesh Kumar v Deputy CIT
Bihar v PP Sharma 1992 1 SCC 222
Where right to heard at stage of registering FIR
Board of HS & Inter v Chitra AIR 1970 SC 1039 (Expulsion or suspension or cancellation of exam result entail civil consequences)
Hira Nand Mishra case
Kuldeep Dhingra v MTNL 1992
UP Singh v Maulana Azad College AIR 1982
Rule against Bias
Painter v Liverpool Gas Co, 1836
Nobody should be condemned unheard
Protect-man from arbitrary state actions
Reasonable opportunity-defending himself
Party is not to suffer in person or in purse without an opportunity of being heard’
Olga Tellis v BMC 1985
In spite of statutory provisions about removal of unauthorised constructions without notice, commissioner held liable to follow PNJ
Balco Employees v UOI 2002
Taking policy decisions, relating to economic matters, govt. not bound to observe NJ or afford hearing to employees.
UOI v Jesus Sales Corporation 1996
No right of oral hearing in all circumstances, submission of written representation is sufficient compliance of PNJ.
Travancore Rayons v UOI 1971
Excise duty imposed on company manufactured a particular chemical composition, company disputed but govt. did not give an opportunity for personal hearing before upholding levy of duty.
Action quashed<>technical questions<>should have been decided<>taking expert advice.
UOI v Chand Putli 1973
Determining question of citizenship decided
Before passing a deportation order, personal hearing is necessary.
Re:An Advocate 1989
Personal hearing is necessary in disciplinary actions against professionals by their concerned association.
UOI v Mohd Ramzan Khan 1991
Adjudicatory Body: Decide basis of relevant materials placed before it.
Affected person apprised of such materials given an opportunity to rebut+explain.
Whether copies of material relied upon must be supplied.
Canera Bank v VK Awasthy 2005
Natural Justice is another name for common sense justice.
Rules of natural justice are not codified canons.
Natural Justice is the admin of justice in a common sense liberally.
Justice is based substantially on natural ideals and human values.
Golak Patel Volkart Ltd v Collector Belgaum 1987
Fair Trial:Fair Justice
Notice and trial or hearing
Rajendra Singh v State of MP
Canera Bank v Debasis Das 2003
Notice is required to be clear and unambiguous-If it is ambiguous to vague it will not be treated as reasonable or proper notice
Notice must specify the action proposed to be taken
Example-Where the notice served on an employee against who disciplinary action is proposed to be taken does not mention the date time and location of incident
Notice must give sufficient time.
State of Karnataka v Mangalore University Non-Teaching Employees Association 2002 (IMP)
UOI v TR Verma 1957
Rule of NJ require that a part should have the opportunity of adducing all relevant evidence on which he relies that the evidence of the opponent should be taken in his presence.
That he should be given the opportunity of cross examination of witness
UOI v Tulsiram Patel 1985
State of Karnataka v Mangalore University Non-Teaching Employees Association 2002
HC Sarin v UOI 1976 (IMP)
Right to be represented.
In domestic inquiry the delinquent’s right to be represented by a counsel
Suk Das v Arunachal Pradesh 1986
DG RPF v K Raghuram Babu 2008
Managing Director ECIL Hyderabad v B Karunakar 1995
Right to copy of inquiry report.
Jammu and Kashmir Banks v BR Gupta 1994
Tarcholan Dev State 2001 (IMP)
Parties to dispute are entitled to now the reason for the decision.
JNU v BS Narwal 1980
Administrative Tribunals
Perform quasi judicial action
Bharat Bank v Emps 1950
L Chandra Kumar v UOI
KK Dutta v UOI
Administrative Tribunals Act 1987
Show-cause Notice structure
Name
You are hereby informed.
Details of misconduct.
Proposed Action.
Reasonable time to reply (30 days)
Analytical Approach
