UNIT I: INTRODUCTION

Public bodies and Ministers must be compelled to observe the law; and it is essential that
bureaucracy should be kept in its place.
Bradbury v Enfield London BC (1967),
per Danckwerts LJ

1.1: Meaning and Definitions

The word administration is derived from Latin word; ad+minisitration which mean 'to minister'
or 'to serve' or 'to manage'.
Dictionary meaning of administration
the arrangements and tasks needed to control the operation of a plan or organization: Black's
Law dictionary : Administration means Management or conduct of an office or employment,
the performance of the executive duties of an institution, business or the like
The expression "Administrative Law" may mean two different things,
namely, a. law relating to administration, and it engages the attention of
lawyers.
b. law made by the administration. The latter one is of two kinds. Firstly, it may be rules,
regulations, orders, schemes, bye-laws, etc., made by the administrative authorities on whom
power to make such subordinate legislation is conferred by a statute. This may be called rule
making. Secondly, certain administrative authorities have power to decide questions of law
and/ or fact affecting particular person or persons generally, i.e., adjudication. Most of such
powers are exercised quasi-judicially. Such decisions apply a statute or administrative policy
and instructions to specific cases. In doing so, they create a body of administrative law. 1

Administrative law is primarily concerned with governmental and administrative actions and
process and puts in a control mechanism to prevent administrative agencies from spiraling out
of control. It is not codified law and rather has developed over time. It ensures that the
authorities don’t misuse or abuse the powers vested in them2.
Administrative law is part of the branch of law commonly referred to as public law, i.e. the law
which regulates the relationship between the citizen and the state and which involves the
exercise of state power.
Administrative law is that it is a branch of public law concerned with the composition,
procedures, powers, duties, rights and liabilities of the various organs of government that are
engaged in administering public policies 3. It refers to the body of laws, procedures and legal
institutions affecting government agencies as they implement legislation and administer public
programs. It concerns itself mainly with the legal control of the Government or of
administrative authorities. The legal authorities may be exercised by three authorities (1) the
legislature (2) higher authorities and (3) the judiciary.

1
[Link]
2
[Link] 3A W Bradley
And K D Ewing(2007). Constitutional and administrative law (14th ed.). England: Pearson Education Limited
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Administrative law encompasses laws and legal principles governing the
administration and regulation of government agencies 4

Definitions

Sir Ivor Jennings, a prominent British lawyer and academic who wrote popular books
like “the law and the Constitution”, defines administrative law as “Administrative law
is the law relating to administration. it determines the organization, powers and duties
of the administrative authorities

Difficulties

∙ it does not distinguish administrative law from constitutional law ∙

It does not include the remedies available to an aggrieved persons K.C.
Davis
Administrative is the law concerning the powers and procedures of administrative
agencies including especially the law governing judicial review of administrative action

Difficulties
∙ Emphasis on procedures but not on the substantive law made by these agencies

Griffith and Street

According to Griffith and Street, " The main object of Administrative law is the
operation and control of Administrative authorities."it deals with the following three
aspects: -
∙ What are the limits of those powers?

∙ What sort of power does the administration exercise?

∙ What are the ways in which the administrative is kept within those limits?

[Link]
Administrative law is concerned with the operation and control of the powers of
administrative authorities with emphasis of functions rather than structure.

Dicey
Administrative law is that portion of a nation's legal system, which determines the legal
status and liabilities of all state officials, secondly defines the rights and liabilities of
private individuals in their dealings with public officials and thirdly specifies the
procedure by which those right and liabilities are enforced.
M.P Jain and S.N. Jain

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Administrative law deals with the structure, powers and functions of the organs of
administration; the limits of their powers; the methods and procedures followed by
them in exercising their powers and functions, the methods by which their powers are
controlled including the legal remedies available to a person against them when his
right are infringed by their operation

According to this definition, administrative law deals with four aspects

Firstly, it deals with the composition and the powers of administrative authorities
power
Secondly it fixes the limits of the powers of those authorities
Thirdly it prescribes the procedure to be followed by these authorities in exercising such
powers
Fourthly it controls these administrative authorities through judicial and other means.

Concisely

∙ powers and functions

∙ procedures

∙ Methods of control(parliament and judiciary)

∙ Remedies (constitutional and others)

I.P. Messey
administrative law as 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 an official action is reached and reviewed in relation to individual
liberty and freedom.

According to him four basic bricks of foundation of any administrative law may be
identified as:

∙ To check abuse or detournment of administrative power

∙ to ensure to citizens an impartial determination of their disputes by officials ∙ to

protect them from unauthorized encroachment on their rights and interests and
 ∙ to make those who exercise pubic power accountable to the people

According to C.K. Thakwani(Thakker)

Administrative law is the branch of constitutional law which deals with powers and duties of
Administrative authorities, the procedure followed by them in exercise the powers and
discharging the duties and the remedies available to an aggrieved person when his rights are
affected by any action of such authorities.

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The primary propose of the administrative law is to keep the powers of government
within their legal bounds, so as to protect the citizen against their abuse. The operation
and control of administrative authorities being the chief purpose of administrative law
it deals with the following questions:

∙ What short of powers does the administration exercise?

∙ What are the limits of such powers?

∙ What procedures does it have to follow in the exercise of those powers ∙ What are

the ways in which the administration is kept within the above limits? ∙ What
remedies are available to the individual against the illegal action of the
administration?

1.2: Functions and characteristics

Certain functions and characteristics of administrative law

∙ It has a control function, acting in a negative sense as a brake or check in respect of the
unlawful exercise or abuse of governmental/administrative power.
∙ It can have a command function by making public bodies perform their public duties,
including the exercise of discretion under a statute.
∙ It embodies positive principles to facilitate good administrative practice, for example in
ensuring that the rules of natural justice or fairness are adhered to.
∙ It operates to provide for accountability and transparency, including participation by
interested individuals and parties in the process of government, e.g., through
membership of a pressure or interest group such as Greenpeace.
∙ It may provide a remedy for grievances occasioned at the hands of public authorities.

1.3: Objectives of the administrative law

The objectives of administrative law are to :
∙ Control of government powers,

∙ Remedy to aggrieved person,

∙ Equal status of state and public,

∙ Effective use of government power,

∙ Public utility,

∙ Determination of government and public disputes,

∙ Determination of social problems,

∙ Performance of administration – improvement,

∙ Maintenance of Rule of law.

1.4: Nature of Administrative Law

Administrative law is related to administration. It determines the organization, powers and
duties of administrative authorities. Administrative Law is a new branch of law tht deals with
the powers of the Administrative authorities, the manner in which powers are exercised and the
remedies which are available to the aggrieved persons, when those powers are abused by

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administrative [Link] Administrative process has come to stay and it has to be
accepted as a necessary evil in all progressive societies.

Friedman’s view on the nature of Administrative law is widely accepted and includes 5 points
as follows:

∙ it includes the legislative powers of the administration, both at common law and under
the statute

∙ the administrative powers of administration under both common law and statutes ∙
the judicial and quasi-judicial powers all under statutory provisions

∙ the legal liability of public authorities

∙ the powers of the ordinary courts to supervise the administrative authorities

1.5: Scope of administrative law

Administrative law is that branch of public law which deals with the organization and powers
of administrative and quasi administrative agencies and prescribes the principles and rules by
which official action is reached and reviewed in relation to individual liberty and freedom
There are several branches of the science of law. The Administrative Law is a recent branch of
the science of law. It deals with the structure, functions and powers of the Administrative
organs. It also lays down the methods and procedures which are to be followed by them during
the course of remedies which are available to the persons whose rights and other privileges are
damaged by their operations.

The main object of the study of administrative law is to unravel the way in which these
administrative authorities could be kept within their limits so that the discretionary powers
may not be turned into arbitrary.

Its concept founded on the following:

∙ Principles of natural justice

∙ Rule of law

∙ Power is conferred on the administration by law

∙ No power is absolute or uncontrolled howsoever broad the nature of the same might be ∙
There should be reasonable restrictions on exercise of such powers depending on the
solution.

Schwartz divides administrative law in three parts

∙ The power vested in administrative agencies

∙ The requirement imposed by law upon the exercise of those powers

∙ Remedies available against unlawful administrative action

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Therefore, the scope of Administrative law can be narrated as under: -
∙ The methods and procedures of these Administrative organs are also studied by this
new branch of law.
∙ It covers the nature of structure, powers and functions of all these administrative organs. ∙
It also makes available all the relevant remedies to the persons whose rights are infringed
by the operations of these organs during the course of Administration. ∙ Why and How the
Administrative Organs are to be controlled is also viewed by the Administrative law.
Administrative Law as a law is limited to concerning powers and procedures of administrative
agencies. It is limited to the powers of adjudication or rule-making power of the authorities.
Thus, it is limited to:
∙ Establishment, organization and powers of various administrative bodies ∙
Delegated legislation - the Rule-making power of the authorities
 ∙ Judicial functions of administrative agencies such as tribunals

∙ Remedies available such as Writs, Injunction etc.

∙ Procedural guarantees such as the application of principles of Natural Justice ∙

Government liability in tort
∙ Public corporations
Luther Gullick has developed POSDCORB as scope of administrative law which means
P= Planning
O=Organization
S= Staffing
D=Direction
Co= Co-ordination
R= Reporting
B= Budgetting

1.6. Sources of Administrative law

Sources of administrative law can be classified into two types;
∙ Primary sources

∙ Secondary sources

a. Primary sources

The Constitution:The Constitution is the supreme law of the land . it conditions and
overrides all legislative and administrative actions. Besides providing for functional
organization and consequential growth in administrative process, the Constitution has also
provided for an elaborate control mechanism. The Constitution demarcates the legislative and
administrative power of States conferring on the courts, the power to review legislative and
administrative action and adjudge their constitutionality.

Acts/Statutes: Acts and Statutes passed by legislature are important sources of administrative
law because they elaborately detail the powers, functions and modes of control of several
administrative bodies. Statute emanates from the Constitution. Under the Constitution, law
making power has been given to Parliament and State Legislatures. Administration is given
powers by statutes. All the statutes have to conform to the constitutional patterns.
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Ordinances, Notification and Circulars: Ordinances are issued by the President or Governor
and are valid for a particular period of time. These ordinances give additional powers to
administrators in order to meet urgent needs. Administrative directions, notifications and
circulars provide additional powers by a higher authority to a lower authority. In some cases,
they control the powers.

Judicial decision: Judicial decisions or judge-made law have been responsible for laying
down several new principles related to administrative actions. They increased the
 accountability of administrative actions and acted as an anchor between the notifications,
circulars etc. to be linked and complied directly or indirectly with the constitutional or
statutory provisions.

Delegated Legislation: Law-making is the primary function of the Legislature. Yet, in no

country does the legislature monopolies the whole of legislative power. A good deal of
legislation is made by the administration under the powers conferred by the Legislature. This
type of administrative legislation is called delegated or subordinate legislation. In this way,
delegated legislation is an important source of law.

Customs:customs or practices are also the important sources of the administrative

law.
Administrative practice,
Rules,
Regulations
b. Secondary Sources

∙ Reports of the committees

∙ Opinions and publication of scholars

∙ People revolution order

∙ Research reports

∙ Text books

∙ treaties

∙ declarations

∙ commissions' report

∙ Journals

∙ General theories
1.7: Importance of Administrative Law
The development of Administrative law is an unavoidable necessity of the modern times. The
administrative law is considered as an intensive form of government. It deals with the
pathology of functions. The functions that are discharged by the administrative authorities
differ from time to time depending upon the changes in socio-economic conditions in any
nation. There is radical change in the philosophy as to the role played by the state. The judicial
system proved inadequate to decide and settle all types of disputes. The legislative process is
also inadequate. It has no time and technique to deal with all the details. Thus, the
administrative authorities can avoid technicalities. Administrative law represents functional

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rather than a theoretical and legalistic approach. In addition to this, the importance of
administrative law can be traced as;

∙ To guarantee good governance in the country

∙ To apply the concept of limited governance in the democratic society ∙

To protect the rights of the citizens and provide remedies
∙ To determine the powers and duties of administrative authorities

∙ To maintain the rule of law

∙ To prevent the authorities from abusing the powers

∙ To make the government accountable and transparent while delivering the public service
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UNIT II DEVELOPMENT OF ADMINISTRATIVE LAW

2.1: History of Administrative Law

Administrative has been characterized as the most outstanding legal development of the 20th
century. The governments have evolved from being laisseze faire to parens patria. This
development saw a similar trend in several parts of the world.5

Development of administrative law in UK

In 1885 a British jurist A.V. Dicey rejected the whole concept of Administrative law. Due to this
several legal thinkers suspended the notion of acknowledging the various statutory powers
given to administrative authorities to form a separate branch of law. They disregarded the
control exercised by such authorities to be anything distinct in itself. Hence, until 20 th century
administrative law was not given its due in England. It was only later that the concept came to
be recognized.

In 1929, Lord Donoughmore Committee recommended for better publication and control of
subordinate legislation. The legal maxim that the king can do no wrong, was abolished and the
scope and extent of administrative law was expanded by the Crown Proceeding Act, 1947. It
allowed initiation of civil proceedings against the Crown in a similar fashion to any ordinary
private citizen.

The Tribunals and Inquiries Act, 1958 brought about better control and supervision of
administrative decisions. Breen v Amalgamated Engineering Union[ii]was the first case wherein
the existence of administrative law in England was recognised.

Development of administrative law in USA

The existence and growth of administrative law was ignored in the United States until it grew
into being the fourth branch of Democracy. Also several legal jurists like Frank Goodnow and
Ernst Freund had authored several books on administrative law which bolstered its position in
the States.

Dr. Freund in his observation of the characteristics of American and English system found that
American growth of administrative power didn’t encounter a temperamental opposition like it
did in England. Rather it was checked by the distribution of powers under a federal system. Not
until 19th century the Congress used its interstate commerce powers for regulatory purposes,
with recourse into administration by commission.
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Bulk of the legislations, at first, was administered without general supervision; the central-state
administrative organisation was built slowly. As a result administrative control in the US was
less bureaucratic and hence less centralised.

In the United States the rise of administrative law is contemporaneous with the need for
governmental regulation of industry. Such a need led to the creation in 1887 of the Interstate
Commerce Commission (ICC). In 1933 a special committee was appointed to determine how
judicial control over administrative agencies could be exercised. Thereafter, the Administrative
Procedure Act, 1946 was passed which provided for judicial control over administrative actions.

American administrative law developed from the operation of these different regulatory
agencies, vested with significant powers to determine, by rule or by decision, private rights and
obligations. As the regulations and orders promulgated by these organs impinged more and
more upon the community and the bar that counseled it, the development of legal rules to
ensure the subordination of agency activities to law became of concern to jurists. During the
1920s courses on administrative law began to be offered in law schools, the American Bar
Association set up a special committee on the subject, and it came increasingly to occupy the
attention of courts and lawyers.

Development of administrative law in France

The existence of an administrative authority (le droit administratif) in France, separate and
distinct from the civil law, dealing, in the main, with the competence of the administrative
authorities and watching over the relations amongst themselves and with private individuals,
distinguishes fundamentally the administrative and legal system of France from that of Anglo
Saxon countries.

A study of the history of French administrative law during the last hundred years will show
that its development has consisted principally in the working out of remedies for the protection
of private individuals against the arbitrary and illegal conduct of the administrative authorities
and in the extension of the control of the administrative courts (particularly the council of state)
over the acts of these latter authorities. It is somewhat analogous to the power of American
courts to refuse to enforce unconstitutional acts of the legislature.

This control has gone through a very interesting process of development. During the early years
of the First Empire when the judicial courts were, in large measure, the servile instruments of
Napoleon, they refused to entertain the plea of illegality as a bar to prosecution for the violation
of all acts of the administrative authorities, from the lowest to the highest. In 1800, however, the
court of cassation which three years before had held that the inferior judges had no right to
refuse to enforce prefectural or municipal police ordinances on the ground of their illegality,
changed its opinion and ruled that they were not bound to impose fines for the violation of such
ordinances.

During the period of the Restoration when the judges became more independent in
consequence of the adoption of the rule of non removability, they went further and held that

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they were not even bound to impose fines for the violation of ordinances issued by the King[v]
Legality of nearly every administrative act for the violation of which a fine is prescribed, and
illegality includes not merely nonconformity to the laws but also incompetence, vice of form,
violation of the principle of equality of citizens, of personal liberty, liberty of conscience,
inviolability of domicile, violation of property rights, etc.

Even so-called ordinances of public administration issued by the President of the Republic upon
the advice of the council of state, which until 1907 could not be questioned either before the
administrative or judicial courts, are now attackable before both classes of courts on the ground
of illegality and during the world war, when the French Parliament delegated extraordinary
ordinance power to the President, the judicial courts regularly entertained the exception of
illegality against such ordinances. This power of the judicial courts to declare illegal the
ordinances of the administrative authorities is, as Hauriou remarks, one of the “correctives” of
the French administrative system which cannot be ignored. it offered a means of control over
administrative conduct which was more frequently invoked than now, its importance having
decreased in consequence of the remarkable extension of the control of the administrative
courts, the effect of which has been to reduce correspondingly the control of the judicial courts.”

Development of Administrative Law in India

With the arrival of the British in India and event of the British Rule in India there was the
advent of modern administrative law. Establishment of East India Company increased the
powers of government. Many Acts, statutes and Legislation were brought and passed by the
British government regulating public safety, health, morality transport and labour relations.
Practice of permitting Administrative licence began with the State Carriage Act 1861.

The very first public corporation was established under the Bombay Port Trust Act 1879. The
concept of delegated legislation was accepted as legitimate power of the Executive within the
Northern India Canal and Drainage Act, 1873 and Opium Act 1878. Proper and effective steps
were taken to manage the trade and traffic in explosives by the Indian Explosives by the Indian
Explosives Act 1884.

During the Second World War, the executive powers massively expanded Defence of India Act,
1939 and the guidelines made thereunder conferred abundant powers on the property of an
individual with little or zero judicial authority over them, In addition to this, the government
issued many orders and ordinances, covering several matters by way of Administrative
directions. Since independence, the activities and the functions of the government have
additionally increased. To illustrate, the amendments in the Industrial Disputes Act 1947 and
the Minimum Wages Act 1948 significantly standardized important social security measures to
be taken for those employed in Industries.
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2.2 Welfare state and Administrative Law

Welfare state is a concept of government in which the state plays a key role in the protection
and promotion of economic and social well-being of its citizens. The concept of welfare state is
based on the principles of equality of opportunity, equitable distribution of wealth, and public
responsibility for those unable to avail themselves of the minimal provisions for a good life. In
the strictest sense, a welfare state is a government that provides for the welfare, or the well
being, of its citizens completely.

The welfare state provides education, housing, sustenance, healthcare, pensions,

unemployment insurance, sick leave or time off due to injury, supplemental income in some
cases, and equal wages through price and wage controls. It also provides for public
transportation, childcare, social amenities such as public parks and libraries, as well as many
other goods and services.

With the abandonment of laissez faire and advent of modern philosophy of a "welfare" state, the
administrative organ in almost all the democratic countries is performing large variety of
functions. The main task of the administrative organ is no longer merely policing and defense. It
has expanded to regulatory and managerial functions. The enormous increase in the functions
of the administration in the modern welfare state has gradually led to the treatment of
administrative law as a separate subject. For, the increase in the powers and duties of
administration has brought it in conflict with the individual in various walks of life. This has led
to an increase in the content of administrative law which necessitated the treatment of
administrative law as a separate subject. The main motivation for the growth of administrative
law is the need of the government to extend its powers of control over different spheres of
human activity and a corresponding need for the definition of the powers of the administration
and their control in the interest of the individuals affected by their exercise. 6

Administrative Law is the law related with the administrative functions of the Government and
its Departments. It deals with the powers and functions of the administrative authorities, the
manner in which the powers are to be exercised by them and the remedies that are available to
the aggrieved persons when those powers are abused by these authorities.

2.3. Theories of administrative law

A. Red Light Theory

According to Red light theory the primary object of administrative law is to control government
power It is based on the assumptions that every kinds of power tends to corrupt and absolute
power tends to corrupt absolutely. This theory has emerged from a fear of state absolutism.

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The red light approach advocates strong role for the courts to review administrative decisions.
It considers that the function of law is to control the excesses of state power. According to this
theory of state, the best government is the one that governs least. Wider power means danger to
the rights and liberty of citizens. Hence, the red- light theory serves the function of controlling
excess and arbitrary power, mainly by the courts. Its descriptive feature is that, on the one hand,
it gives much attention on control of governmental power, and on the other hand, it is confident
that the effective controlling instrument are the courts through judicial review; As Harlow and
Rawlings put it:. It is not surprising, therefore, to find many authors believing that the primary
function of administrative law should be to control any excess of state power and subject it to
legal and more especially judicial control. It is this conception of administrative law that we
have called red light theory.

These are the various tenets of this theory:

1. Courts are the primary weapon for protection of the citizen and control of the executive.
2. The supremacy of law must prevail over politics.
3. The administrative authorities must be kept under judicial control.
4. For judicial control, the general system of adjudication is appropriate. 5. Public law must
be oriented towards strengthening individual liberties. 6. The world of law is apolitical,
neutral and independent of the world of government, politics and administration.
7. Administrative law should aim to curb or control the state.

B. Green Light Theory

The green light approach considers that the function of administrative law is to facilitate the
operation of the state. It is based on the rationale that bureaucrats will function most efficiently
in the absence of intervention. Administrative law should aim to help simplifying the
procedures and enhance efficiency. It starts from the standpoint of a more positive, largely
social and democratic view of the state.

The green light theory is originated from the utilitarian tradition, which proposes promoting
the greatest good for the greatest number. According to the utilitarian theory, the state is
expected to provide the minimum standards of provision, including housing, education, health,
social security, and local services. To provide maximum satisfaction for most of its people, the
state should assume a broader role, hence, should possess wider powers. The green light theory
broadly supports the introduction of policies aiming at developing public service provisions.
Law is perceived as a useful weapon and an enabling tool. It is something very concrete and can
provide in principle, at least, the proper authority and framework with which to govern
consensually. It regards law not as a controlling mechanism, rather as a facilitative tool.
Consequently, it considers the court‘s intervention as an obstacle to efficiency. Green light
theory allows intervention by the state in larger public interest issues ensuring rights of citizens'
and the well-being of society as a whole. This can be achieved through active involvement,
positive deliberation effective consultation creative contribution productive participation
decentralization of power freedom of information and other such action of the administration.
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These are the various tenetsof this theory:

1. Law is merely a matter of political discussion. Thus, law is not superior to administration
or cannot prevail over administration.
2. Public administration is not a necessary evil but a good element of the state. 3.
Administrative law should not only focus towards prohibiting negative practices of the
government. It should also work on facilitating the administration and sound
administrative practices.
4. For encouraging the administration, adjudication based on legal rules is not the sole
appropriate idea.
5. There can be other alternatives to courts.

c. Amber light theory

While the red and green light theories hold two different standpoints in administrative law, the
amber light theory tends to bring a point of consensus between the two. The amber light theory
maintains that administrative law should apply the positive elements of both the theories. The
amber light theorists believe that there must be a balance between both external as well as
internal controlling mechanisms for effective public administration. As recognized by Harlow
and Rawlings, green light theory does not wish to suggest that it favors unrestricted or arbitrary
action by the state. In fact, it doesn’t rebut the rigidity of red light theory to some extent.

These are the various tenets of this theory:

1. Law is both discrete from and superior to politics.

2. The state can successfully be limited by law although that law should properly allow for
the administration to enjoy a degree albeit controlled degree of discretionary authority. 3.
The best way of controlling the state is through the judicial articulation and enforcement of
broad principles of legality.
4. The goal of this theory is to safeguard a particular vision of human rights.

Differences between the red and green light theories7

Although the two theories cannot exist in isolation and complement each other in many ways,
there are various underlying differences between the two. These differences have been listed
below:

1. The red light theorists advocate for an interventionist approach by the court in relation to
the review of administrative decisions while the green light theorists question the
function of courts in checking executive actions.

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2. The red light theory is suspicious about governmental actions while green light theory
identifies the government as congenial.
3. The red light theory relies on the courts primarily for administrative control whereas
green light theory is inclined towards other possible alternatives to courts. 4. The red light
theory sees judicial control over administration as a weapon of sound administration while
the green light theory perceives such control as an intervention or obstacle to the
administrative process.
5. The red light theory considers judicial review as a mechanism of controlling the
administrative actions whereas the green light theory acknowledges the necessity of
judicial review, at times, only to facilitate the administrative actions.
6. The red light theory considers law as superior to politics while the green light theory
holds that law is not superior to politics or administration.
7. The red light theory appears politically conservative whereas the green light theory
reflects a politically progressive view.
8. For red light theorists, answers to everything lay in courts and the rule of law while for
green light theory, legal profession or law is too old fashioned.

2.4. Droit Administratif

French administrative law is known as ―droit administratiff‖, which means a body of rules
which determine the organization, powers and duties of public administration and regulate the
relation of the administration with the citizens of the country. Administrative law in France
does not represent the rules and principles enacted by the parliament. It contains the rules
developed by administrative courts. Administrative law in France is a judge- made law. This
seems strange for a country, representative of the civil law legal system, characterized by the
statute law as the primary source of law.

France also has dual court structure: administrative courts and the ordinary courts existing and
functioning in an independent line. The highest administrative court is known as Conseil d‘etat,
which is composed of eminent civil servants, and deals with a variety of matters like claim of
damages for wrongful acts of government servants, income tax, pension, disputed elections,
personal claims of civil servants against the state for wrongful dismissal or suspension and so
on

Droit Administration is a unique characteristic of the administrative setup of France. Legendary

French military leader Napoléon Bonaparte (15th August 1769 - 5th May 1821) was the founder of
Droit Administration. Droit administratif, or “administrative law,” has been defined by French
authorities in general terms as the body of rules which regulate the relations of the
administration or of the administrative authority towards private citizens. In a broad sense,
Administrative Law relates to the organization, powers, procedures, personnel, finance and
responsibility of all public authorities. In a narrower sense, as the Encyclopedia of Social
Sciences records, it means the law of official powers and responsibility or the law which
determines the amount of discretion permitted to administrative offices and agencies. Droit
administratif therefore, includes three series of rules:
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∙ Rules dealing with administrative authorities and officials; for example, appointment,
dismissal, salary and duties, etc.
∙ Rules dealing with the operation of public services to meet the needs of the citizens; for
example, public utility like electricity, water etc…
∙ Rules dealing with administrative adjudication; for example, private and public liability of
public officials.

In the context of the French system, the Administrative Law is taken to mean the law according
to which actions by the citizens against officials for wrongful acts committed in their official
capacity are tried not by ordinary courts of law but by special administrative courts manned by
civil servants. Such a view of French Droit Administrative was formulated and explained by the
English jurist A.V. Dicey.

According to British Jurist Albert Venn Dicey (4th Feb 1835 - 7th April 1922), the Droit
Administrative system is based on the following of two ordinary principles, namely:

1. The government and its every servant possess special rights, privileges and prerogative as
against private citizens.
2. Such rights and privileges, etc., are determined on the principles different from the
consideration that fixes the legal rights and duties of the citizens.

Eminent French scholar Jean Waline propounded following three principles of Droit
Administration:

1. Principle 1: The power of administration to act ‘Suo Motu’ (on its own) and to impose
directly on subjects its decision to be obeyed as a duty.
2. Principle 2: The power of the administration to take decisions and execute them ‘Suo
Motu’ (on its own) and may be exercised only within the orbit of the law that protects
individual liabilities against administrative arbitrariness.
3. Principle 3: The existence of a specialized administrative jurisdiction.

Three distinguishing features of Droit Administratiff

∙ By this law, the rights of the state are determined by a special body of law and rules which
are not applicable to the ordinary citizens

∙ The ordinary courts have no jurisdiction in cases in which the state or state officials in their
official capacity are a party. such cases are tried by administrative courts consisting of
state officials instead of judge

∙ as an inference, Dicy thought that a special protection in given to officials in France for acts
performed in their official capacities
Drawbacks of Droit Administration

The limitations or drawbacks of Droit Administration:

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1. British Jurist A. V. Dicey once expressed his views that there is no Rule of Law in France
due to the Droit Administration. He thought that the Droit Administration is in contrary
or opposition to the Rule of Law. But it appeared he was mistaken.
2. Although it is true that an individual in France while dealing with the state on any issue
does not stand on the same footing as that on which he stands in dealing with his
neighbor, moreover, the Government and his officials are independent and free from the
jurisdiction of ordinary courts.
3. Despite these drawbacks, the Droit Administration has been quite successful in subjective
Rule of law, in France.

1.5: Rule of Law

The term “Rule of Law” is derived from the French phrase ‘La Principe de Legality’ (the principle of
legality) which refers to a government based on principles of law and not of men. "Rule of law" means
"rule of the law". All governmental action must be done according to law. Rule of law is one of the
elements of constitutionalism. It limits the power of government and it is related to separation of power
and check and balance, good governance and protection of individual rights. Rule of law is concerned
with the political aspects. It emphasizes individual rights which are recognized and protected by law. It
also emphasizes the accountable-government, periodic and fair election, separation of power and check
and balance, civilized society and good government. It prefers the supremacy of constitution.

Rule of law is a dynamic concept and is one of the essentials of a constitution based on
democracy. It heralds the supremacy of Law and is opposed to the rule of man. Bracton in the
13th century had said " even the rulers are subject to Law" . According to Dicey, The rule of law
is one of the fundamental principles of the English legal system. He attributed the following
three meanings to the said doctrine

∙ Supremacy of law

∙ Equality before law

∙ Constitution is the result of the ordinary law

Supremacy of law
Dicey stated that rule of law means the absolute supremacy or predominance of regular law as
opposed to the influence of arbitrary power or wide discretionary power. It excludes the
existence of arbitrariness, of prerogative or even wide discretionary power on the part of the
government. According to him the Englishmen were ruled by the law and law alone. A man
may be punished for a breach of law but can be punished for nothing else.

According to Wade "The rule of law requires that the government should be subject to the law
rather than the law subject to the government" According to this doctrine no man can be
arrested punished or be lawfully made to suffer in body or goods except by due process of al
wans for a breach of law established in the ordinary legal manner before the ordinary courts of
the land. Dicey described this principle as the central and most characteristic feature of
'common law'

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Equality before Law: Equality before law means the equality of law or equal subjection of all
classes of people to the ordinary law of the land which is administered by the ordinary law
courts. In this sense rule of law conveys that no man is above the law. Even the Government
Officials are under a duty to obey the same law and there can be no other special courts for
dealing specifically with their matters. Rule of law contains the guiding principles to the
administrators. They should exercise their powers without making discrimination between
persons and persons in society. If they exercise this power arbitrarily or by making
discrimination, then, it should be controlled or corrected by judicial scrutiny.

Constitution is the result of the ordinary law of the land: As per Diecy , in many countries
rights such as right to personal liberty, freedom, arrest, to hold public meeting etc are provided
by the written Constitution of a Country. But in England these rights are a result of the judicial
decisions. These rights are the result of judicial decision in concrete cases.

Components Of Rule Of Law: Common ingredients of Rule of Law are:

∙ a government bound by and ruled by law

∙ equality before the law

∙ the establishment of law and order;

∙ the efficient and predictable application of justice; and

∙ the protection of human rights.

Rule of law in modern sense:

Today Diecy’s theory of rule of law cannot be accepted in its totality. The modern concept of the
rule of law is fairly wide and therefore sets up an ideal for any government to achieve. This
concept was developed by the International Commission of Jurists. Known as Delhi
Declaration, 1959. The Delhi Congress gave rise to three important elements in the concept of
the Rule of Law.

∙ First, that the individual is possessed of certain rights and freedoms and that he is entitled
to protection of these rights and freedoms by the State;
∙ Second, that there is an absolute need for an independent judiciary and bar as well as for

effective machinery for the protection of fundamental rights and freedoms; and ∙ Third, that
 the establishment of social, economic and cultural conditions would permit men to live in
dignity and to fulfill their legitimate aspirations.

According to Davis, there are seven principal meanings of the term “Rule of law:
(1) Law and order;
(2) Fixed rules;
(3) Elimination of discretion;
(4) Due process of law or fairness;
(5) Natural law or observance of the principles of natural justice;
(6) Preference for judges and ordinary courts of law to executive authorities and administrative
tribunals; and
(7) Judicial review of administrative actions.

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So finally it may correctly be said that rule of law does not mean and cannot mean any
government under any law. It means the rule by a democratic law-a law which is passed in a
democratically elected parliament after adequate debate and discussion.

Professor Joseph Raz

Joseph Raz gave his theory of rule of law in 1979 through his book The Authority of Law:
Essays on Law and Morality claims that the rule of law is a precondition of individual liberty.
Raz’s principles emerged from the ground that the law must be capable of guiding the
individual’s behavior. Some of Raz’s principles are as follows:

1. All laws should be prospective, open, and clear

2. Laws should be relatively stable
3. The making of particular laws (particular legal orders) should be guided by open, stable,
clear, and general rules
4. The independence of the judiciary must be guaranteed
5. The principles of natural justice must be observed
6. The courts should have review powers over the implementation of the other principles
7. The courts should be easily accessible
8. The discretion of the crime-preventing agencies should not be allowed to pervert the law

Lord Bingham’s eight rule of law principles(The Rule of Law(2011):

[Link] law should be accessible and predictable

[Link] questions should be determined according to law, not by the exercise of discretion
[Link] law should apply equally to all,
[Link] and public officers at all levels must exercise the powers conferred on them in
good faith, fairly, for the purpose for which the powers were conferred, without exceeding
the limits of such powers and not unreasonably
[Link] law must afford adequate protection of fundamental human rights [Link] must be
provided for resolving without prohibitive cost or inordinate delay, bona fide civil disputes
which the parties themselves are unable to resolve
[Link] procedures provided by the state should be fair
 [Link] state must comply with its obligations in international law as in national

law The modern indexes of rule of law are described as follows:

a. Constraints on Government Powers

Government powers should be effectively limited by the legislature, judiciary and independent auditing
and review. Government officials should be sanctioned for their misconduct. Transition of power should
be subject to the law.
b. Absence of corruption
Government should not use public office for private gain. All persons should be sanctioned for
misconduct and abuse of power.
c. Open government

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Parliament should be made law by participatory method. Laws and government data should be published.
There should be effective complaint mechanism and civil participation on governance. d. Fundamental
rights
Fundamental rights should be guaranteed by constitution. There should be equal treatment and absence of
discrimination. The right to life and security of the person should be effectively guaranteed. Right to
constitutional remedy for fundamental rights should be guaranteed.
e. Order and security
Crime should be effectively controlled. There should not civil conflict in the nation. People should not
resort to violence to reduce personal grievances.
f. Civil justice
People could be access and afford civil justice. Civil justice should be free of discrimination, corruption
and improper government influence. It should not be the subject to unreasonable delay. It should be
effectively enforced. Alternative dispute resolution mechanisms are accessible, impartial and effective. g.
Criminal justice
Criminal investigation, adjudication and correctional system should be effective, timely and impartial. It
should be free of corruption and improper government influence.
h. Absence of Arbitrary Power:
Government should go with recognized laws. Court of law should prevent abuse of power and rights of
people. Rule of law is required, not rule of man.
i. Equality before law:
Everybody, government also, are the subject of law. Everybody have the right to inter in court of law in
the condition of violation of law. The government should take positive discrimination for minorities. This
is not against the rule of law. All citizens should be equal before law. The State should not be
discriminated citizens on grounds of origin, religion, race, caste, tribe, sex, economic condition, language,
region, ideology or on similar other grounds.
j. Doctrine of Ultra vires:
The doctrine of ultra vires is a fundamental rule of modern constitutional law. Constitutions provide
various powers to government agencies. If any organ of government goes outside those powers, that
should be ultra vires. Judiciary has the power to declare void those unlawful actions. k. Predictability:
There should be confined to the provision of clear and certain rules which should enable people to plan
their lives in a free society. Rule of law should be manifested in predictability in judgment, administrative
decision and others. Predictability defeats biasness and arbitrariness in decision. Law must be clear and
transparent.
Thus, some common Principles related to Rule of Law are as follow:
Principle of supremacy of law
Principle of equality before of law
Principle of individual liberty
Principle of legality
Principle of due process of law
Principle of accountability to law
Principle of fairness in the application of the law
Principle of separation of powers
Principle of legal certainty
Principle of legal transparency

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For the United Nations (UN) system, the rule of law is a principle of governance in which all
persons, institutions and entities, public and private, including the State itself, are accountable
to laws that are publicly promulgated, equally enforced and independently adjudicated, and
which are consistent with international human rights norms and standards. It requires
measures to ensure adherence to the principles of supremacy of the law, equality before the law,
accountability to the law, fairness in the application of the law, separation of powers,
participation in decision-making, legal certainty, avoidance of arbitrariness, and procedural and
legal transparency.

For International Development Law Organization (IDLO), the rule of law is a culture and
daily practice. It is inseparable from equality, from access to justice and education, from access
to health and the protection of the most vulnerable. It is crucial for the viability of communities
and nations, and for the environment that sustains them.

For the IBA council’s resolution : An independent, impartial judiciary; the presumption of
innocence; the right to a fair and public trial without undue delay; a rational and proportionate
approach to punishment, a strong and independent legal profession; strict protection of
confidential communications between lawyer and client; equality of all before the law; these are
all fundamental principles of the Rule of Law. Accordingly, arbitrary arrests; secret trials;
indefinite detention without trial; cruel or degrading treatment or punishment; intimidation or
corruption in the electoral process, are all unacceptable. The Rule of Law is the foundation of a
civilised society. It establishes a transparent process accessible and equal to all. It ensures
adherence to principles that both liberate and protect.

The IBA calls upon all countries to respect these fundamental principles. It also calls upon its
members to speak out in support of the Rule of Law within their respective communities.”
World Justice project
The Four Universal Principles
The rule of law is a durable system of laws, institutions, norms, and community commitment
that delivers:
Accountability: The government as well as private actors are accountable under the law. Just
Laws: The laws are clear, publicized, and stable; are applied evenly; and protect fundamental
rights, including the security of persons and contract, property, and human rights. Open
Government: The processes by which the laws are enacted, administered, and enforced are
accessible, fair, and efficient.
Accessible Justice: Justice is delivered timely by competent, ethical, and independent
representatives and neutrals that are accessible, have adequate resources, and reflect the
makeup of the communities they serve.

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Rule of Law in Nepalese Contest

Historically, the concept of rule of law was constitutionally not well mentioned. But there were some
provisions about equality, freedom and judiciary which are considered as the element of rule of law in the
Government of Nepal Act, 2004. The Interim Constitution of Nepal, 2007 described the provision of constituent
Assembly, freedom, equality and independent judiciary, fundamental rights, equal protection of law and
equality before law.

The Constitution of Kingdom of Nepal, 2015 was a parliamentary democratic constitution. It provided elected
legislature assembly, accountable-government and multiparty democracy. Enforceable fundamental rights and
constitutional monarchial system were also important features of that constitution.

The Constitution of Nepal, 2019 B.S. visualized an active role of king. Theoretically, it was recognized as law of
the land, but in practice there was executive supremacy and all executive power of the country was vested in
king. He was above the constitution. In 2046 B.S., the people's movement succeeded to throw Panchayat regime
and the Constitution of Nepal, 2019 B.S. The Constitution of Kingdom of Nepal, 2047 B.S. was promulgated
which was based on multiparty democracy system . It was also promotion of rule of law in reality. The Interim
Constitution of Nepal, 2063 B.S. was promulgated and that constitution had many provisions for promoting
rule of law.

The Constitution of Nepal (2072 B.S.) has adopted so many provisions regarding rule of law. The concept of
democratic norms and values including the people’s competitive multiparty democratic system of governance,
civil liberties, fundamental rights, human rights, adult franchise, periodic elections, full freedom of the press,
and independent, impartial and competent judiciary and concept of the rule of law, and build a prosperous
nation are the basic features of constitution.

Role of Judiciary

Judiciary is last and important pillar of the rule of law. The role of judiciary is the most important to find out
the validity of legislative as well as executive action in present democratic era. Supreme Court of Nepal made
so many landmark decisions to promote rule of law, in the country.

Bharat Mani Jangam vs. Office of the President and others 8:-In this case the Supreme Court established the
supremacy of constitution and rule of law and stated that government has not the right to avoid constitutional
provision and rule of law. Government should be accountable to people and Constitution.

Shree Krishna Subedi [Link]. vs. President [Link].,9:- The Supreme Court declared that
constitutionally president is the head of the state. He has not constitutional privilege and immunity under the
Constitution. The president authority is limited to recommendation of council of ministers. Any decision made
in the course of state functioning shall not be done by encroaching the legal limits set out by law.
RajibParajulivs Royal Commission for corruption control and et al. 10:- The Supreme Court held in this case that in
the countries with written constitution, the separation of power between different organs of the state is done by
the constitution. It shall be against the constitution to violate the arrangements and subject
8
NLR 2068 Vol. 7, Dec No.8662
9
NLR 2069, Vol 12 Dec No. 8926
10
NLR 2062 Vol 11 Dec No. 7618
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matters laid down by the constitution. It is contrary to the constitution to say that the court has no right to
decide on constitutional matters.

Puspa Kamal Dahalvs Constitutional Council, Prime Minister and Cabinet of Ministers et al 11:- The Supreme
Court held that the information provided without following due procedure has no meaning and importance. If
in the condition where in the initial stage, there appears to have been an Apparent Error of Law, there shall not
be legitimacy in the decision made by any agency. In relation to performing any
action, if the law provides for clear and mandatory provisions, the procedure has to be followed exactly the
same. Any act carried out without following the procedures stated as mandatory in the law shall not be
considered as lawful and valid. Therefore any decision made in this way is arbitrary and is voidable

Sanjay Kumar Saha vs. Constituent Assembly Legislature Parliament's Speaker Subash Chandra Nemang et al12 :-
The Supreme Court held that in rule of law, every act has to be as directed and according to the law. In the
name of special right, if any decision or directive is made in the area not permitted by law, such decision shall
not receive validity being contrary to law.

KhulBahadurKunwarvs Special District Police Court Kathmandu et al.13 :- The Supreme Court stated that in the
case of a decision made by a body without following the basic procedure to be followed during the
proceedings of a case, if such person is found to be grossly unfair, such decision may be judicially examined
from the writ area

Om PrakashAryal vs. Constitutional Council et al. 14In this case Supreme Court has nicely analyzed the concept
of rule of law. The court stated that from the point of view of democratic values, rule of law, constitutionalism,
etc., the constitution is the basis for measuring all the actions and activities of the state. Political activities
should be conducted within the scope of the constitution, that is, under the. Political consensus outside the
boundaries set by the constitution cannot gain legal recognition. According to the democratic system of
governance and constitutionalism, politics should be directed and run according to the constitution; politics
cannot be conducted outside the constitution

Rule of law is widely accepted and understood concept. Reasonable, fair, just and predictable laws are
necessary for rule of law. Law should be made with participatory method. Supremacy of law should be
guaranteed by constitution. It is a principle of governance also. It is a fundamental aspect of peace building and
related efforts to build effective and credible criminal justice institutions. The rule of law is a framework of
laws and institutions. It embodies accountability; just laws, open government and accessible & impartial
dispute resolution. The government as well as private actors are accountable under
the law. The laws should be clear, publicized, stable, and just; and it should protect fundamental rights.

Rule of law is accepted as basic principle of the Constitution of Nepal. The Constitution has guaranteed
equality before law and equal protection of law as the provision of fundamental right. There are different
governmental organs in the Constitution. The concept of independence of judiciary has been adopted by the
Constitution. It is the constitutional foundation of the power of court. In every democratic country rule of law
is promoted and protected by the judiciary. It is the most value laden and important concept
11
NLR 2067 Vol 7 Dec No. 8406
12
NLR 2070, Vol. 8, Dec No. 9040
13
NLR 2076, Vol. 4, Dec. No. 10250
14
NLR 2073, Vol 11, Dec. No. 9710
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of constitutionalism. Judiciary is considered as the guardian of constitution and protector of fundamental
rights of people. Nepalese judiciary has been played vital role for promoting and enhancing rule of law.

1.6: Separation of power and check and balance

A. Separation of power

The separation of power means distribution of power. The theory of separation of power has engaged in
several forms at different periods, it was originated by Aristotle and it was developed by Locke. In the 16 th and
17th centuries, French Philosopher John Bodin and British politician Locke respectively had expressed their
views about the theory of separation of power. But, the rule (or doctrine) of separation of power was
propounded for the first time by the French Jurist, Montesquieu. He formulated this theory in his famous book
“The spirit of laws”, published in 1718. According to him, there are three main organs of the government in a
state.

1. The legislature
2. The judiciary, and
3. The executive

The Legislature
The Parliament is the sovereign law making body. Formally expressed, all bills must be passed by
Parliament. The House is made up of the majority party: the political party which secures the highest
number seats at the election. The official Opposition is the party which represents the second largest party of
elected members.
The Judiciary
The Judiciary is that branch of the state which adjudicates upon conflicts between state institutions, between
state and individual, and between individuals. The Judiciary is independent of both parliament and the
executive. It is the feature of judicial independence which is of prime importance both in relation to
government according to law and in the protection of liberty of the citizen against the executive.
The Executive
The executive may be defined as that branch of the state which formulates policy and is responsible for its
execution. In formal terms, the sovereign is the head of the executive. The Prime Minister, Cabinet and other
ministers for the most part, are elected Members of Parliament.

According to the theory of separation of powers, these three powers and functions of the government must,
in a free democracy, always be kept separate and be exercised by three separate organs of the government.
Thus the legislature cannot exercise executive or judicial power; the executive cannot exercise legislative or
judicial powers and the judiciary cannot exercise legislative or executive power of the government.

The principle can be stated as follow.

1. Each organ should be independent of the others;
2. No one organ should perform function that belongs to the other.
One organ of the government should not exercise the function of the other two organs. In other words, 1.
 The legislature cannot exercise the power of the Executive or Judiciary.
2. The Executive cannot exercise the power of the legislature or Judiciary.

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3. The Judiciary cannot exercise the power of the legislature or Executive.
Wade and Phillips say that the doctrine of separation of power means the following three things:- 1. The
same set of person should not compose more than one department of the three departments. 2. One
department should not exercise the function of the other two departments. 3. One department should not
control, or interfere with the work of the other two departments Thus,

∙ Separation of powers is an organizational structure where responsibilities, authorities, and powers are

divided between groups rather than being centrally held.

∙ Separation of powers is most closely associated with political systems, in which the legislative, executive,

and judicial powers of government are vested in separate bodies.

IN NEPAL SEPARATION OF POWERS

a. Executive power15:
(1) The executive power of Nepal shall, pursuant to this Constitution and law, be vested in the Council of
Ministers.
(2) The responsibility for issuing general directives, controlling and regulating the governance of Nepal
shall, subject to this Constitution and law, lie in the Council of Ministers.
b. legislative power16
Legislative powers of Federal Parliament: The legislative powers of the Federal Parliament shall be as
enumerated in the lists of Schedule-5, Schedule-7 and Schedule-9.
c. Judiciary power17
Courts to exercise powers relating to justice: (1) Powers relating to justice in Nepal shall be exercised by
courts and other judicial bodies in accordance with this Constitution, other laws and the recognized
principles of justice.

B. Check and balance

According to Encyclopedia Britannica, Checks and balances, principle of government under which separate
branches are empowered to prevent actions by other branches and are induced to share power. Checks and
balances are applied primarily in constitutional governments.
Black's Law Dictionary: The Theory of governmental power and functions where by each branch of
government has the ability to counter the actions of any other branch, so that no single branch can control the
entire government
The term is most commonly used in the context of government. The system of checks and balances in
government was developed to ensure that no one branch of government would become too powerful. ‘Checks
and Balances’ is a safeguard designed to allow each branch of government to restrain abuse by the other
branch. They are various procedures set in place to reduce mistakes, prevent improper behavior, or decrease
the risk of centralization of power. The purpose of check and balance is to safeguard the liberty of individual
and it is obtained by stitching to the maxim that the power alone checks the abuse of power. So the
intervention of an organ of government to the actions of other to a degree that doesn’t violate the spirit of the
organ, should be maintained.

Control of legislature over executive

15
Constitution of Nepal, Article 75
16
constitution of Nepal, Article 109
17
Constitution of Nepal article 126
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The President shall appoint the leader of a parliamentary party that commands majority in the House of
Representatives as the Prime Minister, and the Council of Ministers shall be constituted under his or her
chairpersonship.18

The Prime Minister may, whenever he or she considers necessary or appropriate to show that he or she has
confidence from the House of Representatives, table a motion to that effect in the House of Representatives for
the vote of confidence19

The Prime Minister and Ministers shall be collectively responsible to the Federal Parliament, and the Ministers
shall be individually responsible for the work of their respective Ministries to the Prime Minister and the
Federal Parliament.20

Ratification of, accession to, acceptance of, or approval of, treaties or agreements must be made by a majority of
two-thirds of the total number of the then members of both Houses of the Federal Parliament 21

If a grave emergency arises in regard to the sovereignty, territorial integrity of Nepal or the security of any part
thereof, by war, external aggression, armed rebellion, extreme economic disarray, natural calamity or
epidemic, the President may declare or order a state of emergency in respect of the whole of Nepal or of any
specified part thereof and Every declaration or order shall be laid before both Houses of the Federal Parliament
for approval within one month after the date of issuance of such proclamation or order 22

Provisions relating to parliamentary hearings: Parliamentary hearings shall be conducted as to appointments

to the offices of the Chief Justice and Judges of the Supreme Court, members of the Judicial Council, chiefs and
members of Constitutional Bodies, who are appointed on the recommendation of the Constitutional Council
under this Constitution, and to the offices of ambassadors, as provided for in the Federal law 23.

Control of executive over legislature

Summoning and prorogation of session of the parliament 24

Procedures for passage of Bills: (1) A Bill passed by one House of the Federal Parliament shall be transmitted to
the other House as soon as possible and such Bill, if passed by the receiving House, shall be presented to the
President for assent25.

The finance Bill and Bills concerning the security agencies, including the Nepal Army, Nepal Police, Armed
Police, shall be introduced only as a government Bill. 26

18
constitution of Nepal, Article 76
19
Ibid, Article 100
20
Ibid, Article, 76(10)
21
Ibid, Article, 279
22
Ibid, Article 273
23
Ibid, Article 292
24
Ibid, Article 93
25
Ibid, Article 111
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The President may issue an Ordinance on the recommendation of the Council of Ministers. 27

The Bill presented to the President for certification according to this Article, and if the President is not satisfied
that reconsideration is necessary on a bill, the Bill may be sent back to the House where it originated with
necessary information within 15 days of receiving the Bill.. 28

Control of legislature over judiciary

Provisions relating to parliamentary hearings: Parliamentary hearings shall be conducted as to appointments

to the offices of the Chief Justice and Judges of the Supreme Court, members of the Judicial Council 29

A motion of impeachment against the Chief Justice or any other Judge of Supreme Court, member of
Judicial Council30

Each year, the Supreme Court, Judicial Council and Judicial Service Commission shall present its annual report
to the President, and the President through the Prime Minister shall submit such reports before the Federal
Parliament.31

Parliament can extend or cut down the jurisdiction of the court by revision or promulgating the law

Control of judiciary over legislature

The Supreme Court to have any law or any part thereof declared void on the ground of inconsistency with this
Constitution and Formation of the Constitutional Bench on the cases in addition to the petitions filed according
to clause (1) of Article (133) 32. All must adhere to the order or verdict given by the court in relation to the court
cases33.

The interpretation of constitution and law or the legal principles propounded by the Supreme Court in relation
to court cases must be followed by all.34

Control of executive over judiciary

President shall appoint a Chief Justice on the recommendation of Constitutional Council and Justices of the
Supreme Court on the recommendation of Judicial Council. 35

Pardon: The President may grant pardons to persons convicted, and suspend, commute, or reduce any
sentence imposed by any court, judicial or quasi-judicial bodies or administrative officer or authority. 36

26
Ibid, Article 110
27
Ibid, Article 114
28
Ibid, Article 113
29
Ibid, Article 292
30
Ibid Article 101(2)
31
Ibid Article 138
32
Ibid Article 133 &137
33
Ibid Article 126(2)
34
Ibid Article 128(4)
35
Ibid Article 129(2)
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Control of judiciary over executive

There shall be chief justice as a member in the Constitutional Council. 37. All must adhere to the order or
verdict given by the court in relation to the court cases. 38. The interpretation of constitution and law or the legal
principles propounded by the Supreme Court in relation to court cases must be followed by all 39

The Supreme Court may issue appropriate orders and writs including the writs of habeas corpus, mandamus,
certiorari, prohibition and quo warranto.40

Some important decision related to Separation of Power and Check and Balance Sarbagyan

Ratna Tuladhar vs. President of Rastriya Panchayat et al. NKP 2035 vol. 1 D.N. 1197

Adv. Ratna Bahadur Bagchan [Link] vs. Office of Priminister or secretariat of ministers [Link]. NKP 2062 vol. 2
D.N. 7491

NKP 2062 vol. 11 D.N. 7618

NKP 2064 vol. 6 D.N. 7855

NKP 2064 vol. 7 D.N 7866

NKP 2067 vol. 8 D.N 8430

NKP 2067 vol. 12 D.N 8530

NKP 2068 vol. 3 D.N 8571

NKP 2068 vol. 3 D.N 8580

NKP 2068 vol. 7 D.N 8662

NKP 2069 vol. 8 D.N 8872

NKP 2069 vol. 12, D.N 8926

NKP 2069 vol. 12, D.N 8928

NKP 2072 vol. 8, D.N 9451

36
Ibid Article 276
37
Ibid Article 284
38
Ibid Article 126(2)
39
Ibid Article 128(4)
40
Ibid Article 133
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Page 28
UNIT III: CLASSIFICATION OF ADMINISTRATIVE

POWER/ACTION 3.1: General Concept

There are three organs of the government; Legislative, Executive, Judiciary. In other word,
Administrative action is classified broadly into three main organs of the government namely;
Legislative, Executive, Judiciary. These three organs essentially perform three classes of
governmental functions; Legislative, Executive, Judiciary. The function of the legislature is to
enact the law; the function of the executive is to administer the law; and the function of the
judiciary is to interpret the law and to declare what the law is 41.

Need for classification42:

∙No precise and distinguished functions:
A question arises as to whether the functions performed by the executive authorities are purely
administrative, quasi-judicial or quasi-legislative in character. The answer is very difficult as
there is no precise, scientific and perfect test to distinguish these functions from one another.
∙Combination of various aspects of the three functions:
A further difficulty arises in a case in which a single proceeding may at times combine various
aspects of the three functions. The courts have not been able to formulate any definite test for
the purpose of making such classification. Yet such classification is essential and inevitable as
many consequences flow from it, e.g., if the executive authority exercises a judicial or quasi
judicial function, it must follow the principles of natural justice and is amenable to the writ of
certiorari or prohibition, but if it is an administrative, legislative or quasi-legislative function,
this is not so.
∙Legislative character:
If the action of the executive authority is legislative in character, the requirement of publication,
laying on the table etc. should be complied with, but it is not necessary in the case of a pure
administrative action.
∙Type of function administrative authority performs:
Again, if the function is administrative, delegation is permissible, but if it is judicial, it cannot
be delegated. An exercise of legislative power may not be held invalid on the ground of
unreasonableness, but an administrative decision can be challenged as being unreasonable. It is
therefore necessary to determine what type of function administrative authority performs.

Thus, speaking generally, an administrative action can be classified into three categories:
1. Quasi-legislative action or rule-making action;
2. Quasi-judicial action or Rule-decision action; and
3. Purely Administrative action or Rule application action
1. Quasi-legislative action or rule-making action; Legislative Functions: Legislature is the law-
making organ of any state. In some written constitutions, like the American and Australian
Constitutions, the law making power is expressly vested in the

41
C.K. Takwani,Lectures on Administrative Law (6th edt.). Delhi: EBC publication
42
Ibid
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legislature……… But in the twentieth Century today these legislative bodies cannot give that
quality and quantity of laws, which are required for the efficient functioning of a modern
intensive form of government. Therefore, the delegation of law-making power to the
administration is a compulsive necessity. When any administrative authority exercises the law
making power delegated to it by the legislature, it is known as the rule-making power
delegated to it by the legislature, it is known as the rule-making action of the administration or
quasi-legislative action. Rule-making action of the administration partakes all the
characteristics, which a normal legislative action possesses [Link] characteristics may be
generality, prospectivity and behavior which bases action on policy consideration and gives a
right or disability. These characteristics are not without exception. In some cases, administrative
rule-making action may be particularized retroactive and based on evidence.
According to Chinnappa Reddy, j. a legislative action has four
characteristics: ∙ Generality;

∙ prospectivity;

∙ public interest; and

∙ right and obligations flow from it.

Legislative &Judicial Functions: Distinction
There is no bright line between legislative function and judicial function. According to Justice
Holmes, main aspect is the element of time that is a rule (Legislative Function) prescribes
future pattern of Conduct and creates new rights and Liabilities whereas a decision(judicial
function) determines rights and liabilities on the basis of present or past facts and declares the
pre-existing rights and abilities. He points out the distinction between legislative and judicial
functions in the following words:
Ajudicial inquiry investigates, declares and enforces liabilities as they stand on present or past facts and
under laws supposed already to exist. That is its purpose and end. Legislation on the other hand looks to
the future and changes existing conditions by making a new rule to be applied thereafter to all or some
parts of those subject to its powers.
According to Green, The legislative function then is general and relates to the future whereas
the judicial function is specific, final and ordinary relates to the past. Adjudication deals with
what the is, while rule making deals with what the law will be.

According to other jurist, the element of applicability is relevant in distinguishing a legislature

function from a judicial function. In the words of Prof. Dickinson- legislature usually acts by
determinations of general applicability addressed to indicated but unnamed and unspecified
persons and situation. A court of law, on the other hand, acts by decisions that are specific in
applicability and addressed to particular individuals or situation.

The aforesaid two theories help in distinguishing legislative and judicial functions, but in
certain situation they create some difficulties and seem to be defective, g.g. sometimes
administrative adjudication creates some future rights; yet cannot be said to be performing a
legislative function. Conversely, if the test of applicability is adopted rate making, price fixing,
etc. which are required to be done after hearing the parties, may be classified as judicial while in
fact they are legislative in character and the object of hearing is only to collect necessary

43
I.P Massey . Administrative Law (7th edt) Locknow: Eastern Book Company
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information. Moreover, a single function may have all the three elements. It may be partly
legislative, partly executive and partly judicial.

Legislative and administrative functions: Distinction

Distinction between legislative and administrative function is very difficult to draw. Different
tests have been formulated by jurists and scholars.
According to institutional test, that which the legislature enacts is 'legislative' and that which
the administration applies is 'Administrative'.
The second test puts emphasis on extent and applicability of the Act. Whereas legislative power
is the power to make rules for subject in general and for prospective application, administrative
power is exercised in the application of such law to specific cases and particular situation.

2. Quasi-judicial action or Rule-decision action; judicial functions

A true judicial decision presupposes a lis between two or more parties and then involves four
requisites:

∙ Presentation of the case.

∙ Ascertainment of questions of fact by means of evidence given by the parties. ∙

Ascertainment of questions of law on the basis of submission of legal arguments. ∙ A

decision which disposes of the whole matter by applying the law to the facts.
Thus when these elements are present, the decision is a judicial decision even though it might
have been made by an authority other than a court, eg. by a minister, Board and executive
Authority, Administrative Officer etc.
Administrative decision making may be defined as a power to perform acts administrative in
character, but requiring incidentally some characteristics of judicial traditions. On the basis of
this definition the following functions of the administration have been held to be quasi-judicial
function.

∙ Disciplinary proceedings against students.

∙ Disciplinary proceedings against an employee for misconduct.

 ∙ Confiscation of goods

∙ Cancellation, suspension, revocation or refusal to renew license or permit by licensing

authority.
∙ Determination of citizenship.

∙ Determination of statutory disputes.

∙ Power to continue the detention or seizure of goods beyond a particular period. ∙

Forfeiture of pensions and gratuity.
∙ Authority granting or refusing permission for retrenchment.

∙ Grant of permit by Regional Transport Authority.

In administrative law, characterization of the function discharged by the administration as

administrative or quasi-judicial leads to significant consequences. The dictionary meaning of
the word 'quasi' is "not exactly'. A quasi-judicial act is "just in between a judicial and
administrative function. When there is a contest (lis) between two contending parties, and the
authority adjudicates upon the rival claims of the parties, the authority acts in a quasi-judicial

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manner. But presence of lis is not always necessary for characterizing the function as quasi
judicial. Even when there is no lis and there are no two contending parties before the concerned
authority, its function may be characterized as quasi-judicial when the authority is required to
act judicially. The court has laid down the following principles to characterize the function as of
an authority as quasi-judicial:

Where (a) a statutory authority empowered under a statute to do any act;

(b) which would prejudicially affect the subject;
(c) although there is no lis or two contending parties and the contest is between the authority
and the subject; and
(d) the statutory authority is required to act judicially under the statute, the decision of the said
authority is quasi-judicial.
As a comment on the above formulation, it needs to be said that it is not necessary for the
statute to say expressly that the authority is required to act "judicially" thereunder; such a duty
is implied in most of the cases by the courts. There are two important incidents of a quasi
judicial function:
(a) The concerned authority has to observe principles of natural justice;
(b) Once a decision has been taken by the concerned authority, it cannot review its own
decision unless it has statutory authority to do so.
Quasi-judicial function stands midway between a judicial function and an administrative
function. A quasi-judicial decision is nearer the administrative decision in terms of its discretionary
element and nearer the judicial decision in terms of procedure and objectivity of its end product
3. Purely Administrative action or Rule application action

The expression administrative action is a comprehensive expression, comprising of three

categories namely, quasi-legislative, quasi-judicial and purely [Link]
power is the residual power that is neither legislative nor judicial. It is concerned with the
treatment of a particular situation and is devoid of generality. It has no procedural obligations
of collecting evidence and weighing argument. It is based on subjective satisfaction where
decision is based on policy and expediency. It does not decide on a right though it may affect a
[Link], it does not mean that the principles of natural justice can be ignored
completely when the authority is exercising “administrative powers”.

Administrative action may be statutory, having the force of law, or non statutory, devoid of
such legal force. The bulk of the administrative action is statutory because a statute or the
Constitution gives it a legal force but in some cases it may be non-statutory, such as issuing
directions to subordinates not having the force of law, but its violation may be visited with
disciplinary action. Though by and large administrative action is discretionary and is based
on subjective satisfaction, however, the administrative authority must act fairly, impartially
and reasonable.

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Thus administrative functions are those which are neither legislative nor judicial. A quasi
legislative act consists of making rules, regulations and the like, while a purely administrative
act is concerned with the treatment of a particular situation. Therefore a legislative act is the
creation and promulgation of a general rule of conduct without reference to particular cases; an
administrative act includes the adoption of a policy, the making and issue of specific directions,
and the application of a general rule to a particular case in accordance with the requirements of
policy of expediency or administrative practice.

Administrative power can further be classifiedinto two categories:

a) Administrative Action or Rule Application Action–The administrative action is neither
legislative nor judicial in [Link] example,
•issuing direction to the subordinate officer,
•making a reference to the tribunal,
•fact finding action
b) Ministerial action -
A further division of administrative action is ministerial action. Ministerial action is the once in
which a matter of duty is by the law lacking of any kind of discretion or judgment. Therefore, a
ministerial action involves the performance of a definitive duty in respect of which there is no
choice. For example, Collection of revenue.
 A Teaching note of Administrative Law/[Link].B./4th Year/PU/ By Laxman Pd. Gautam , Faculty of BVLC, BRT
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UNIT IV: DELEGATED LEGISLATION
4.1: Definition, Scope and Forms of Delegated Legislation
A. Concept
Delegated 'legislation' is legislation made by a body or person to whom the parliament has
delegated its power to legislate. It refers to a binding law issued by a body subordinate to the
parliament.
In short, delegated legislation means the exercise of legislative power by an agency that is
subordinate to the legislature. This subordinate body acquires the power from the act of the
legislature. Power is transferred from the principal lawmaker to the lower body, which may be
the executive, cabinet, council of minister, or a specific administrative agency, by the
mechanism of delegation.
Generally, delegation refers to the act of entrusting another authority or empowering another
to act as an agent or representative. By the same token, delegation of legislative powers means
the transfer of law-making authority by the legislature to the executive, or to an administrative
agency. According to the traditional theory, the function of the executive is to administer the
law enacted by the legislature, and in the ideal State, the legislative power must be exercised
exclusively by the legislators who are directly responsible to the electorate. But, in truth, apart
from ‘pure’ administrative functions, the executive performs many legislative and judicial
functions also. In line with the power granted to them by the legislature administrative agencies
can issue rules, regulations and directives, which have a legally binding effect.
The practice in England, India, and France has been the [Link] legislation’ in Nepal is
generally expressed as statutory rules and orders, but expressions like, ‘regulation’, notification,
bye-laws, schemes, direction etc.
B: Definition of delegated legislation
It is very difficult to give any precise definition of the expressed delegated legislation. It is
equally difficult to state with certainty the scope of such delegated legislation. Mukherjea J 44
rightly says:
Delegated legislation is an expression which covers a multitude of confusion . It is an excuse for
the legislators, a shield for the administrators and a provocation to the constitutional jurists…..
According to Salmond, "Delegated legislation as that which proceeds from any authority other
than the sovereign power and is therefore dependent for its continuous existence and validity
on some superior or supreme authority."
According to [Link], “Delegated legislation means legislation which is passed by a body to
which the power of legislation is delegated by the statute.”
According to jain and jain, The term delegated legislation is used in two sense.
1. The exercise by a subordinate agency of the legislative power delegated to it by
legislature, or

44
Quoted by Chakrawarti, Administrative Law (1970)166
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2. The subsidiary rules themselves which are made by the subordinate agency pursuance
of the power conferred on it by the legislature.
According to C.K. Takwani, A simple meaning of the expression ‘delegated legislation’ may be
given as: ‘When the function of legislation is entrusted to organs other than the legislature by the
legislature itself, the legislation made by such organs is called delegated legislation.’
Thus the delegated legislation is a subordinate legislation by the authority other than the
legislature and it gets legal validity and recognition on the basis of the law promulgated by the
supreme authority.
C: Nature and scope of delegated legislation
Delegated legislation means legislation by authorities other than the Legislature, the former
acting on express delegated authority and power from the later. Delegation is considered to be a
sound basis for administrative efficiency and it does not by itself amount to abdication of power
if restored to within proper limits. The delegation should not, in any case, be unguided and
uncontrolled. Parliament and State Legislatures cannot abdicate the legislative power in its
essential aspects which is to be exercised by them. It is only a non- essential legislative function
that can be delegated and the moot point always lies in the line of demarcation between the
essential and nonessential legislative functions.
The essential legislative functions consist in making a law. It is to the legislature to formulate
the legislative policy and delegate the formulation of details in implementing that policy.
Discretion as to the formulation of the legislative policy is prerogative and function the
legislature and it cannot be delegated to the executive. Discretion to make notifications and
alterations in an Act while extending it and to effect amendments or repeals in the existing laws
is subject to the condition precedent that essential legislative functions cannot be delegated
authority cannot be precisely defined and each case has to be considered in its setting. In order
to avoid the dangers, the scope of delegation is strictly circumscribed by the Legislature by
providing for adequate safeguards, controls and appeals against the executive orders and
decisions. The power delegated to the Executive to modify any provisions of an Act by an order
must be within the framework of the Act giving such power. The power to make such a
modification no doubt implies certain amount of discretion but it is a power to be exercised in
aid of the legislative policy of the Act and cannot travel beyond it; or cannot run counter to it; or
can’t certainly change the essential features, the identity, and structure or the policy of the Act.
D: Classification/Forms of Delegated Legislation
Delegated legislation may take several forms. They may be normal or of exceptional type; they
may be usual or unusual; positive or negative. Broadly speaking, delegated legislation may be
classified on the following principles:
i).Title- Based Classification:
Delegated legislation may be in the forms of rules, regulations, bye-laws, notification, schemes,
orders, ordinance, directions etc.
ii).Discretion-based classification (conditional legislation)
A discretion may be conferred on the executive to bring the Act into operation on fulfillment of
certain conditions. Such legislation is called conditional or contingent
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iii).Nature-based classification (exceptional delegation):
Classification of administrative rule-making may also be based on the nature and extent of
delegation. There are two types of parliamentary delegation:
1. Normal Delegation:
There are two types of normal delegation:
A. Positive delegation.-Where the limits are clearly defined in the Parent Act, it is called
positive delegation.
B. Negative delegation.-Where the delegated power does not include power to do certain
things, it is known as negative delegation e.g. power to legislate on matters of policy or
power to impose tax.
2. Exceptional Delegation.
Exceptional delegation is also known as Henry VIII clause. Instances of exceptional
delegation may be as follows:
∙ Power to legislate on matters of principle.

∙ Power to amend Acts of Parliament.

∙ Power giving such a wide discretion that it is almost impossible to know the limits. ∙
Power to make rules which cannot be challenged in a court of law.
iv).Purpose-based classification:
A classification may be based on nature and extent of power conferred and purposes for which
such power can be exercised. Thus, executive can be empowered to fix an appointed day for the
Act to come into force; to supply details; to extend the provision of the Act to other areas; to
include or to exclude operation of the Act to certain territories, persons, industries,
commodities; and to suspend or to modify the provisions of the Act etc.
v).Authorities Based Classification
A statute may also empower the executive to delegate further powers conferred on it to its
subordinate authority. This is known as sub-delegation

4.2: Reasons for the Growth of Delegated Legislation

i) Limitation/Pressure upon Parliamentary Time
As a result of the expanding horizons of State activity, the bulk of legislation is so great that it is
not possible for the legislature to devote sufficient time to discuss all the matters in detail.
Therefore, legislature formulates the general policy and empowers the executive to fill in the
details by issuing necessary rules, regulations, bye-laws, etc. In the words of Sir Cecil Carr,
delegated legislation is “a growing child called upon to relieve the parent of the strain of
overwork and capable of attending to minor matters, while the parent manages the main
business.”
ii) Technicality Subject of Matter
Legislation has become highly technical because of the complexities of a modern government.
Members of the parliament are not experts, and so they cannot comprehend the technicality of
the subject matter of some economic and social issues. Technical matters, as distinct from policy
issues, are not susceptible to discussion in parliament and therefore cannot be readily be
included in legislation. Therefore, technicality of the subject matters like gas, atomic, energy,
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drugs, [Link] as another justification for delegation. It is convenient for the legislature to
confine itself to policy matters only and leave the technical law making sequence to the
administrative agencies.
iii) Flexibility
Ordinarily legislative process suffers from lack of viability and experimentation. A law passed
by parliament has to be in force till the next session of parliament when it can be replaced. At
the time of passing any legislative enactment, it is impossible to foresee all the contingencies,
and some provision is required to be made for these unforeseen situations demanding exigent
action. A legislative amendment is a slow and cumbersome process, but by the device of
delegated legislation, the executive can meet the situation [Link], the process of
delegated legislation helps the executive authority to make laws according to the situation.
iv) Emergency
During emergency, it may not be possible for the parliament to pass necessary legislation to
cope up with the situations. Under such conditions, speedy and appropriate action is required
to be taken. The parliament cannot act quickly because of the time that requires passing an act.
Moreover, immediate knowledge and experience is only available with the administration. For
this reason, wide legislative power must be conferred up on the executive to enable the
government to take actions quickly.
v) Experiment:
The practice of delegated legislation enables the executive to experiment. This method permits
rapid utilization of experience and implementation of necessary changes in application of the
provisions in the light of such experience, e.g. in road traffic matters, an experiment may be
conducted and in the light of its application necessary changes could be made. Delegated
legislation thus allows employment and application of past experience.
vi) Complexity of Modern Administration:
The complexity of modem administration and the expansion of the functions of the State to the
economic and social sphere have rendered it necessary to resort to new forms of legislation and
to give wide powers to various authorities on suitable occasions. By resorting to traditional
legislative process, the entire object may be frustrated by vested interests and the goal of control
and regulation over private trade and business may not be achieved at all.
4.3: Limitation of delegated legislation
The term delegated legislation is referred to the legislation created by the government agencies
with authority from the Acts of Parliaments. This will delegate the power to the agencies for
practical reasons. Such reasons involve saving parliamentary time or dealing with changing
conditions as they occur. However there are limitations of delegated legislation which are listed
as below :
∙ No new policies and principles are formulated by delegated legislation ∙ Delegated
legislation is formulated under the power given by parent Act and constitution
 ∙ Legislature cannot delegate its essential legislative functions

∙ Delegated legislation cannot have any retrospective effect

∙ It cannot affect the rights and duties of any person

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∙ The validity of the subordinate or delegated legislation may be challenged before the
Courts on this ground.

Advantages of Delegated Legislation

∙ Save time for the legislature.

∙ Allow for flexibility.

∙ Expert opinion is required in legislation.

∙ Parliament is not always present in the session.

∙ Used as an experimental basis.

∙ It is restored to use it in a situation of emergency.

∙ Can be easily Settle down with consulting the required party

Criticism of Delegated Legislation

∙ The executive has become stronger with delegated legislation, it can easily encroach the
rules and regulation of legislation by making rules.
∙ This concept opposes the rule of Separation of Power.

∙ Lack of relevant discussion before framing the law.

∙ It is not in acceptance with the principle of rule of law.

∙ It is not stable in nature, it keeps on fluctuating on the ground of Political changes.

 A Teaching note of Administrative Law/[Link].B./4th Year/PU/ By Laxman Pd. Gautam , Faculty of BVLC, BRT
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UNIT V: CONTROL OF DELEGATED LEGISLATION
5.1: Reason for Control
There are many convincing reasons as to why it is necessary to have control over delegated
legislation.
∙ Delegated legislation is made by non-elected bodies away from democratically elected
politicians
∙ Many people gain the power to pass delegated legislation, without controls, executive
bodies would pall outrageous and unreasonable legislation
∙ Due to sub delegation in which the law making power is handed downs another level to
people other than those who were originally given the power to do so.
∙ The delegated legislation empowers authorities other than legislature to make and amend
laws thus resulting in overlapping of function.
∙ Excessive power may be delegated to the executive in the name of delegated legislation
which contradicts the spirit of democracy.
∙ The government/ executive agencies may assume a wide legislative authority and
jurisdiction than what the parliament granted
∙ Delegated legislation may be changed overnight with little or non pre-information to the
stakeholders.
∙ Delegated legislation is subject to less parliamentary scrutiny than primary legislation.
5.2. Control of delegated legislation
Control over the delegated legislation may be divided into three categories:
∙ Legislative control

∙ Judicial control

∙ Other controls
5.2.1. Legislative control
a) General
It is open to parliament to confer legislative power upon anyone it. If parliament delegates
legislative powers to any other authority i.e. executive it must also ensure that those powers are
properly exercised by the administrative and there is no misuse of authority by the executive.
Krishna Iyer J. stated that Parliamentary control over delegated legislation should be a living
continuity as a constitutional necessity.
Jain and Jain state that since it is the legislature which grants legislative power to the administration, it
is primarily its responsibility to ensure the proper exercise of delegated legislative power to supervise and
control the actual exercise of this power and ensure against the danger of its objectionable, abusive and
unwarranted use by the administration.
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. Hence,
parliamentary control over delegated legislation should be a living continuity as constitutional
necessity. The fact is that due to the broad delegation of legislative powers and the generalized
standard of control also being broad, judicial control has shrunk, raising the desirability and the
necessity of parliamentary control.
Object

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The underlying object of parliamentary control is to keep watch over the rule making
authorities and also to provide an opportunity to criticize them if there is abuse of power on
their part. This mechanism is described as 'legislative veto'.
Since the risk of abuse of power by the executive is inherent in the process of delegated
legislation, it is necessary for the legislature to keep 'close watch' on the delegate.
Modes
Legislative control can be effectively exercised by

∙ Laying on table and

∙ Scrutiny committee
a. Laying on table
In almost all commonwealth countries, the procedure of 'Laying on the Table' of the legislature
is followed. It serves two purposes;
First, it informs the legislature as to what rules have been made by the executive authorities in
exercise of delegated legislative power, and
Second, it provides an opportunity to the legislators to question or challenge the rules already
made or proposed to be made. Through this 'safety-valve'; the legislature exercises supervision,
check, and control over executive rule-making power. 'Laying technique' brings legislature into
close and constant contact with the administration.
b. Scrutiny committee
'Lying on the Table' has not always been held to be mandatory. Even if that requirement is
complied with mere laying of rules before Parliament would not be of much use, unless the
rules were properly studied and scrutinized. And, therefore, with a view to strengthening
parliamentary control over delegated legislation, Scrutiny Committees are established
In England, the Select Committee on Statutory Instruments was established by the House of
Common in 1944.
In India also, there are two Scrutiny Committee 1) the Lok Sbha Committee on Subordinate
Legislation and 2) the Rajya Sabha Committee on Subordinate Legislation
In Nepal, there is delegated legislation and Assurance Committee in the National Assembly.
Among one of the four committees, provided by Rule 147 of National Assembly Rule, 2075, the
committee undertakes the parliamentary monitoring of the delegated legislation. Rule 176 of
Parliament Rule 2075 .
5.2.2. Judicial control
Delegated legislation does not fall beyond the scope of judicial review and in almost all
democratic countries, it is accepted that courts can decide the validity of delegated legislation
mainly applying two tests;

∙ Substantive ultra vires

∙ Procedural ultra vires

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"Ultra vires" means beyond power or authority or lack of power. An act may be said to be 'ultra
vires' when it has been done by a person or a body of persons which is beyond his, its or their
power, authority or jurisdiction.
Ultra vires relates to capacity, authority or power of a person to do an act. It is not necessary
that an act to be ultra vires must be illegal. The act may or may not be illegal. The essence of the
doctrine of ultra vires is that an act has been done in excess of power possessed by a person.
a) Substantive ultra vires
Substantive ultra vires means that the delegated legislation goes beyond the scope of the
authority conferred on it by the parent statute or by the constitution. It is a fundamental
principle of law that a public authority cannot act outside the power, i.e. ultra vires, and it has
been rightly described as the "central principle" and foundation of large part of administrative
law. An act which, for any reason, is in excess of power is ultra vires.
b) Procedural Ultra vires
When a subordinate legislation fails to comply with procedural requirements prescribed by the
parent Act or by a general law, it is known as procedural ultra vires. While framing rules, bye
laws, regulations, etc, the parent Act or enabling statute may require the delegate to observe a
prescribed procedure, such as holding of consultation with particular bodies or interests,
publication of draft rules or bye-laws, laying them before Parliament, etc. It is incumbent on the
delegate to comply with these procedural requirements and to exercise the power in the manner
indicated by the legislature. Failure to comply with the requirement may invalidate the rules so
framed.
The method of procedural can be studied under the following heads

∙ Drafting

∙ Antenatal publicity

∙ Consultation

∙ Postnatal publicity

See
NKP 2063, issue 3, DN7660
NKP 2063, issue 3,DN 87777
NKP 2063, vol 2
5.2.3: Other controls
Over and above judicial and parliamentary controls, sometimes other controls and safeguards
are also provided. One such safeguard against the abuse of delegated power is to properly and
precisely limit the power of the delegate. If the extent of power is not properly defined in the
parent Act and the language used is very broad, the executive authority may usurp some
powers of the legislature and may be tempted into unjustified interference with the rights of the
individuals.
The court should also interpret the provisions of rules and regulations in such a manner as not
to give blanket powers to the executive authority.
Practice of delegated legislation in Nepal

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In Nepal, along with constitutional development, various legal practices have been observed. In
many cases, it can be seen that the constitution itself provides the authority to make subordinate
legislation. While the division of work of the government of Nepal is done according to the
rules set by the Government itself45, the workflow of the federal legislature parliament is
governed by rules approved by the parliament. 46. Most of the subordinate legislations are made
from the authority given by the parent Acts that are made by the legislature or the parliament.
Generally, the following five bodies have been exercising their power related to the delegated
legislation:
a. Executive : Most of the delegated legislation is made by the executive based on the
authority given by the constitution or the Parent Act. The jurisdiction of the
executive is wide. Thus it is obvious that the executive uses the provision of
delegated legislation frequently. For example, the government of Nepal made the
Consumer protection Rule, 2056 based on the rights provided by Section 30 of
the Consumer Protection Act 2054.
b. Legislature : The legislature also formulates subordinate legislation based on tha
authority given by the constitution and Acts. For example, The House of
Representatives made the House of Representatives Rules base on the rights vien
by Article 104(1) of the Constitution of Nepal.
c. Judiciary : For the operation and management of courts, the judiciary has also
been given the authority to make subordinate legislation by the Acts related to
justice administration. The Supreme Court made the Supreme Court Rule, 2074
utilizing the rights provided by Section 11 of the Supreme Court Act 2048. The
Supreme Court also made the Muluki Criminal Procedure Rule, 2075 under the
rights provided by Section 116 Muluki Criminla Procedure Code 2074
d. Constitutional Bodies : The constitutional bodies also exercise to make the
delegated legislation by utilizing the power conferred to them. For example, The
Commission for the Investigation of Abuse of Authority(CIAA) made the
Commission for the Investigation of Abuse of Authority Rules 2059 utilizing the
rights provided by Article 37 of Commission for the Investigation of Abuse of
Authority Act 2048.
e. Autonomous Bodies : Autonomous bodies also can make subordinate legislation.
 Especially the bodies established under the Act fall under this category. For
example universities, that is Purbanchal University was established under the
Purbanchal University Act 2050 and Purbanchal Univeristy made Purbanchal
Univerisity Rules 2053 utilizing the right provided by the Act.

45
Article 82 of the Constitution provides following provision regarding the working procedure of the Government of Nepal (a)
The business of the Government of Nepal shall be allocated and transacted in accordance with the rules approved by the
Government of Nepal
(b) No question may be raised in any court as to whether or not the rules under clause(a) have been observed
Furthermore, Article 174 of the constitution provides the similar provision relating to state government 46 Section
104 of the Constitution of Nepal provides following
(1) Each House of the federal parliament shall frame rules to conduct its business, maintain order during its meetings and
regulate the constitution, functions and procedures of the committees and procedures of the House or its committee.
Until such rules are framed, the Federal Parliament shall regulate its procedures on its own
(2) Conduct of business of the joint sitting of the Federal Parliament, and constitution and proceedings of the joint
committee of the Federal Parliament shall be regulated by the rules or procedures approved by the joint sitting of
both Houses of the Federal Parliament
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Problems of delegated legislation
Nepalese practice has observed several problems related to the delegated legislation which can
be listed as below:

∙ Delegated legislation is not formulated in time,

∙ Delegated legislation is prepared without enough discussion,

∙ Delegated legislation is prepared beyond the determined jurisdiction, ∙

The delegated legislation is not published,
∙ The record of delegated legislation have also not been properly managed,
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UNIT VI: ADMINISTRATIVE DISCRETION
6.1: Concept of Discretion
"Discretion" is the power to decide or act according to one's judgment. Discretion implies power
to make a choice between alternative courses of action. Administrative discretion thus means
the authority vested in the Executive, the public officials who administer the government, to
perform certain functions, make certain decisions at their own judgment, and exercise certain
powers. It is a common tendency in modern democracies to confer discretionary power on the
government or administrative officers.
In the words of Justice Coke ".discretion is a science or understanding to discern between
falsity and truth, between right and wrong, between shadows and substance, between equity
and colorable glosses and pretences, and not to do according to their wills and private
affections."
Lord Mansfield said, "Discretion when applied to a Court of Justice, means sound discretion
guided by law. It must be governed by rule, not by humour, It must not be arbitrary, vague, and
fanciful, but legal and regular".
Lord Wrenbury said, "A discretion does not empower a man to do what he likes merely
because he is minded to do so, he must in the exercise of his discretion do not what he likes but
what he ought. In other words, he must, by the use of his reason, ascertain and follow the
course which reason dictates."
In the leading case of Susannah Sharp Vs. Wakefield, Lord Halsbury stated: "Discretion" means
when it is said that something is to be done within the discretion of the authorities that
something is to be done according to the rules of reason and justice, not according to private
opinion.......according to law and not humour. It is to be, not arbitrary, vague and fanciful, but
legal and regular. And it must be exercised within the limit, to which an honest man competent
to the discharge of his office ought to confine himself........"
Perhaps the best definition of "Administrative discretion" is given by Prof. Freund n the
following words:
"When we speak of administrative discretion, we mean that a determination may be reached, in
part at least, upon the basis of consideration not entirely susceptible of proof or disproof.....it
may be practically convenient to say that discretion includes the case in which the
ascertainment of fact is legitimately left to administrative determination."
Thus, in short, here the decision is taken by the authority not only on the basis of the evidence
but also in accordance with policy or expediency and in exercise of discretionary powers
conferred on that authority.
6.2: The Need of Administrative Discretion

The act of the legislature to grant discretionary power to the Executive is clearly based upon the
reliance placed upon the power of judgment of that authority. The legislature thus directly
eliminates a direct attack on the exercise of the discretionary power unless a right of appeal to
the courts is expressly provided by the legislature. But the absence of such provision, one that
provides for appeal does not mean the immunization of the exercise of discretion from judicial
review. In the words of Prof. H. W.R. Wade,
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“If the state is to care for its citizens from the cradle to the grave, to protect their environment,
to educate them at all stages, to provide them with employment, training, houses, medical
services, pensions and in the last resort food, clothing and shelter, it needs a huge
administrative apparatus. Relatively little can be done by merely passing Acts of Parliament
and leaving it to the courts to enforce them. There are far too many problems of detail and far
too many matters which cannot be decided in advance. No one may erect a building without
planning permission, but no system of general rules can prescribe for every case. There must be
discretionary power.”

Reason for granting discretionary power to administrative agencies is because they possess
experience and specialization in a particular area. This experience and specialization helps
agencies in making decisions in the agencies’ area of expertise. Administrative agencies have
specialized knowledge and power to achieve legislature’s objectives.

∙ The present day problems are complex and varying nature and it is difficult to
comprehend them all within the scope of general rules.
∙ Most of the problems are new, practically of the first impression and Lack of any previous

experience to deal with them, does not warrant the adoption of general rules. ∙ It is not
always possible to foresee each and every problem but when a problem arises it
must, in any case, be solved by the administration in spite of the absence of specific rules
applicable to the situation.
∙ Circumstances differ from case to case so that applying one rule mechanically to all cases
may itself result in injustice.

6.3: Control over administrative discretion

Justice Douglas once stated: “where discretion is absolute, man has always suffered…Absolute
discretion…is more destructive of freedom than any of man’s other inventions.”
The fundamental principle of rule of law is all authorities and their actions are subject to law.
The administrative authority is discharging their duties may act beyond the power or abuse the
power conferred on them. As result, individual right and liberties may be affected, therefore it
is necessary that there should be judicial control over misuse of discretionary power of the
administrative authorities. So the rights of the peoples are not adversely affected and protect the
notion of democracy and rule of law. Judicial control over administrative discretion is
established through following means:
6.3.1: Judicial control through means of Judicial Review
Judicial review can be done for the declaring invalid the decision of the administrative decision.
The administrative discretionary power is sometime very much authoritative and it hamper on
the fundamental right of the individual at that time the court issue such order to repel that
decision. The following case is one of the important example this regard.
In Baburam Paudel v. HMG/ Cabinet Secretariat case, Supreme Court declared that the universal
principle is that, the discretionary power should not be arbitrary. Arbitrary acts are negative
aspect of the Rule of Law. The constitution of Nepal aims to protect and follow the rule of law.
That’s why the discretionary right is limited and controlled……….. Laws provide the
discretionary power to the administrative executive officer, whereas the power is not arbitrary

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and absolute. It must be amiable. The abuse of power is not acceptable and the discriminatory
conduct is functional. The decision of the administrative executive is free from the mal intention
and biasness. (Baburam paudel, [ref. Baburam Paudel v. HMG/ Cabinet Secretariat, 36 NKP 143
(2051)])
In Dhan Kumari Gurung on behalf of Iman Singh Gurung v Military Court where the
petitioner, a civilian, was prosecuted and then punished by the Military Court according to
Section1 (3) sub clause (d) of Military Act 2016, Supreme Court found it indispensable to
distinguish a civilian from military personal while proceeding a trial under the Military Act,
and also interpreted right to equality as the right to seek redress or to go on trial in general
court as other fellow citizens (NKP, 2049, vol 7, p. 710)
Upholding the equality principle of Constitution Supreme Court in Rina Bajracharya v Cabinet
Secretariat and others declared Rule 16.1.3 of Royal Nepal Airlines Corporations Workers Rule
ultra vires as that rule discriminated individuals on the ground of sex by determining unequal
working limit and job security on the basis of the worker’s gender.
6.3.2: Judicial control through means of Prerogative Writs

6.3.3: Judicial control through means of hearing Public Interest Litigation Cases
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UNIT VII: ADMINISTRATIVE ADJUDICATION

Administrative Adjudication means the determination of questions of a judicial or

quasi-judicial nature by an administrative department or agency. Like a regular court,
administrative bodies hear the parties, sift evidence, and pronounce a decision in cases
where legal rights or duties are involved.

Adjudication is the application of the agency’s policies to a past act to resolve disputes
regarding rights and duties (West’s Encyclopedia of American Law 1998)

The process by which an administrative agency issues an order, such order being affirmative,
negative, or declaratory in form

In the words of Prof White, “…administrative adjudication means the investigation and
settling of a dispute involving a private party on the basis of a law and fact by an
administrative agency.”
Prof Dimock defines Administrative Adjudication as the process by which administrative
agencies settle issues arising in the course of their work when legal rights are in question.
Blachly and Oatman describe administrative tribunals or Administrative Courts as, “authorities
outside the ordinary court system which interpret and apply the laws when acts of public
administration are attacked in formal suits or by other established methods.”
7.1: Reason for Growth

Reasons for the growth of Administrative Adjudication

Administrative Adjudication protects the rights of citizens at the cost of the state authority.
Following mentioned are some of the reasons contributing to the growth of Administrative
Adjudication:

∙ Preventive and cautionary measures : Administrative authorities can help in taking

various preventive and cautionary measures. As it has been observed that the disputing
parties approach the courts of law for redressal, however, the same is not the case with
Administrative authorities as herein, the preventive actions are already taken which
then prove to be more effective and useful than what happens in regular courts i.e.
punishing the perpetrator after he has committed a breach of law.
∙ Effective measures for the enforcement : Administrative authorities endure effective
measures for the enforcement of the aforesaid preventive measures e.g. suspension,
revocation and cancellation of license, destruction of contaminated articles etc., which
are not generally available through regular courts of law.
∙ The judicial system is considered to be inadequate in deciding and settling all kinds of
disputes, for the reasons it being, slow, incompetent, costly, complex and formal. The
courts, like in Nepal, are already overloaded with number of cases and it becomes
 impossible to expect speedy disposal of even very important matters. Thus, the

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development of administrative authorities such as revenue tribunals and administrative
courts have led to bring a relief in the number of cases. Lastly, these tribunals had
updated techniques and expertise to handle such complex issues.
∙ The legislative process followed in our country is considered to be quite inappropriate. The
lengthy proceedings and obsolete techniques followed in the courts make the process of
delivering justice delayed. Even having detailed provisions in some legislations made by
the legislature, they are considered to be defective. Therefore, it the need of the hour to
delegate some powers to the administrative authorities.

Need for Administrative Adjudication

∙ It provides a system of adjudication which is informal, cheap, and rapid, unlike the
traditional courts.
∙ It explores new public law standards based on moral and social principles away from the
highly individualistic norms developed by courts.
∙ The setting up of new standards requires expertise, specialization, and experimentation
which can be provided by the administration.
∙ Nowadays, there is a growing emphasis on preventive justice rather than punitive. This
can be done only by administrative agencies exercising adjudicatory powers.

However, it is being said that strategy of administrative adjudication was developed not as
a result of public necessity but for governmental convenience and expediency. People doubt
the independence of administrators as judges and also fear their anti-legal approach.

7.2: Structure and Procedure of Quasi-judicial Bodies

Structure

∙ Not based on any uniform conventional pattern, and is derived from a statute or a
statutory rule
∙ Sometimes they are an integral part of the administration, and sometimes autonomous. ∙

Adjudicatory powers may be given to a single individual or to a multi-member body. ∙

Besides exercising adjudicatory powers, they may also exercise other regulatory and
administrative powers.
∙ No uniform formal qualification is prescribed. Sometimes, a legal qualification is
prescribed and sometimes a technical qualification

Unlike courts, where the structure is based on uniform pattern, and judges are required to have
the necessary legal qualifications and experience, and they exercise only judicial functions.
However, there are administrative tribunals which are autonomous and their members are
required to have prescribed qualifications and exercise only judicial powers.

Procedure

∙ No uniform procedure which administrative tribunals are required to follow. Differs

from agency to agency.

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∙ Sometimes procedure is prescribed by the statute which creates the adjudicatory

authority, sometimes the agencies are left free to prescribe their own procedure ∙ All of

these administrative tribunals follow the rules of natural justice in adjudication. ∙ (Courts
follow a uniform, fixed statutory procedure)
∙ Many administrative tribunals are vested with the powers of a general court for the
purpose of summoning witnesses, examining them on oath, compelling the production
of document, etc.
∙ Courts of law are bound by precedents, principle of res judicata and technical rules of
the Evidence Act and procedural law; but administrative tribunals are not uniformly
and strictly bound by them.
∙ There is more emphasis on policy considerations, compared to a court of law which is
more concerned with application of law in its decision.
∙ Quicker, cheaper than courts usually.

7.3: Control over Administrative Adjudication

Through the judicial review, judicial control is exercised over administrative adjudication.
Constitution of Nepal Article 133 – This provision applies to all administrative actions. It falls
under the extraordinary jdx of SC, and review is done by a different judge than judge who
decided earlier. The principles of review contained in this Article are recognition of judge-made
principles, and hence are not inconsistent with the court-recognized grounds of judicial review
but rather supplement it.

∙ Exercise of Fundamental Rights

∙ Exercise of legal rights, if another remedy is absent, or if another remedy is present but is
inadequate or ineffective

∙ Resolution of constitutional or legal question involving an issue of pubic right or interest ∙

Ultravires– partially or in entirety, void ab initio or from decision date Constitutional

and legal Grounds for judicial review:
[Link] of Ultra-vires:
Beyond powers conferred by the constitution and statute, beyond limits set, beyond prescribed
jurisdiction
-Substantive/excess of power ultra-vires
– Errors of procedure/procedural ultra-vires
[Link] of Jurisdiction
If adjudication is done without authority given by constitution and laws
Decisions taken by such officials or agency is invalid.
(a) Error in formation
If the administrative tribunal is not formed in accordance with the law.
(b) Subject matter beyond jurisdiction

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If the subject-matter of the dispute is beyond the jurisdiction of the decision-maker.
(c) If the parent Act is ultra-vires the Constitution
If the parent Act or its provisions contradicts with the constitution, to the extent of
contradiction the provisions of the Act invalid, and decisions taken pursuant to such
provisions is invalid.
(d) Error in determination of preliminary question
The jurisdiction of the tribunal may depend upon the existence of certain facts or
conditions. The questions as to whether such facts or conditions exists is called collateral
or preliminary question.
If preliminary question is beyond jurisdiction of decision-maker, then decision taken
is invalid.
Appropriate person, proceeding and remedy are considered in determining if
preliminary question is within jdx. Right remedy sought by right person in the right
proceeding.
(e) To use jurisdiction for another purpose
Use power for an objective other than or beyond the objective of the Act.
(f) Excess of Jurisdiction
Where the quasi judicial body or administrative tribunal exceeds the jurisdiction
conferred on it.
Ramji Shrestha v. District Administration Office Nuwakot (NKP 2042, p.117)
The DAO received a petition regarding a transaction agreement between individuals,
upon which it ordered for the execution of a document. The decision was held invalid
by SC.
(vii) To review one’s decision himself
 If an administrative tribunal decides a case as well as reviews its own decision, unless
authorized to do so by a statute, then the SC can deem it invalid on ground of lack of
jdx
[Link] of Jurisdiction
Administrative tribunal or agency declines to perform its functions as per its jurisdiction.
SC can issue mandamus ordering the administrative agency or tribunal to perform in
accordance with its jurisdiction.
(i) Rule against dictation
Any administrative authority invested with the power of decision-making must exercise
this power in exercise of its own judgment. If a decision is taken at the direction of any
outside agency, there is decline or jdx and violation of fair hearing.
(ii) Delegate its Power
An administrative tribunal or agency should not delegate its judicial functions to a lower
or assisting employee or to another agency or person. If it does then its decline of jdx.

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(iii) Fails to exercise its powers
If the administrative agency or tribunal fails to exercise it authority, because of inability to
resolve any procedural or doctrinal issue or due to erroneous interpretation of its jdx
[Link] of Facts and Questions of Law
Both need to be correctly determined by the decision-maker, else subject to judicial
review. [Link] of Natural Justice
(a) No one should be judge in own case
(b) Right to fair hearing
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UNIT VIII: QUASI-JUDICIAL BODIES
8.1:Concept
The term quasi-judicial is used to denote administrative, adjudicatory or decision-making
process. The term quasi-judicial is vague and difficult to define, it is falling to discuss. The term
‘Quasi Judicial’ is comprised of two words ‘quasi’ representing partial and ‘judicial’ means the
issues which need to be settled. Generally, it is the prerogative of judiciary to conduct judicial
administration of the state. However, in certain issues as provided by special acts,
administrative bodies are also entitled to deliver justice. Those administrative bodies apart from
its administrative works also enjoys its judicial authority as provided by law. But such judicial
authority is not absolute in itself but are entitled to deal with the issues related to the nature of
work of that administrative which falls under the jurisdiction of the particular administrative
body.
8.2: Features of Quasi Judicial Bodies

The features of quasi judicial bodies can be listed out as follows:

▪ Quasi judicial bodies are the agencies who have been entitled to the judicial authority
in certain issues.

▪ Generally, they follow the general procedures to conduct their quasi judicial activities.

▪ The administrative policies are made the basis of adjudication.

▪ In almost all the issues decided by the administrative bodies, they can be challenged in
the appellate court.

8.3: Minimum Procedures that quasi-judicial bodies should follow:

∙ The theory of natural justice must be followed. The administrative head of the quasi

judicial body should not give verdict in her/his own case. In addition to that, s/he must
be impartial, loyal and non-biased.

∙ The quasi judicial authority must be administered only by those who have been stated by

specific law as judges. The judgement done by unauthorized person is null and void. ∙ The

judge of quasi-judicial bodies must give their verdict after the proper analysis of the proofs.

8.4:Quasi-judicial Bodies
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8.4.1:Administrative Court

An administrative court was established in 2044 as per the provisions of the Civil Service Act.
The Administrative Court Act,2076 with a new structure has been implemented on 2076/6/24
Government of Nepal has published a notice in the Nepal Gazette to hear the appeal against the
decision regarding departmental punishment, promotion, and transfer of employee.

Composition and Qualification of members–1 chairperson and 2 members’ panel

The court is formed under the chairmanship of the person who is or eligible to be the judge of
High Court or from amongst the officials who have worked as a Gazetted Special Class Officer
in Judicial Service recommended by judicial Council and appointed or nominated by the
Government of Nepal. whereas for a member from judicial service, a law graduate nominated
by the Government of Nepal with at least twenty years of experience in the field of law and
justice or a person retired as a Gazetted Special Class Officer from judicial service and another
member from public administration, a person who has completed bachelor’s degree and has at
least have twenty years of experience in the field of public administration nominated by
Government of Nepal shall be the members of the administrative court.

Territorial Jurisdiction

The Seat of the court will be in the Kathmandu Valley and the territorial jurisdiction will be all
over Nepal. If more than two hundred cases from a province are registered in the
administrative Court, in that province an administrative court as in law shall be established by
publishing a notice in the Nepal Gazette at the Capital of that province. The jurisdiction of such
administrative court shall be as prescribed by publishing the notice in the Gazetted of Nepal in
the recommendation of judicial council.

Jurisdiction of the Court

The Administrative Act 2076 sec. 7 has the following the jurisdiction of the Court

To hear the appeal against the decision regarding:

∙ Departmental punishment,

∙ Promotion, and

∙ Transfer of employee.

Exercise of Jurisdiction of the Court

The jurisdiction of the court shall be exercised collectively by the three members. However, a
session attended by one member may proceed with the case and a session attended by two
members including the chairperson may proceed with the proceedings.
Prior to the enactment of this Act, the administrative Court has jurisdiction to hear appeals only
on decisions relating to departmental punishment of civil servants, Nepal Health Service, and

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employees of the Federal Parliament. The Act provides jurisdiction over the departmental
punishment for civil service of the Government of Nepal, Nepal Health Service, Federal
Parliament Service, Public Institution Service, Community School Teachers, state civil service,
state government and other service, state government owned Institution service and local level
employees and jurisdiction to hear appeals on decisions related to promotion and transfer. The
broad jurisdiction appears to have expanded. This is expected to reduce the number of appeals
to the Supreme Court in such cases.

8.2.1: Revenue Tribunal

This tribunal has been established by the Revenue Tribunal Act 2031 as it was felt necessary to
make timely reforms in the revenue justice system to maintain the convenience and economic
interest of the general public. According to this Act, the area and headquarters of each tribunal
shall be as prescribed by the Government of Nepal by publishing a notice in the Nepal Gazette
from time to time. The tribunal has the right to hear appeals on decisions made by bodies or
officials that take decisions on tax, customs, excise and other revenue matters. Each tribunal
shall have the following members appointed by the Government of Nepal.

∙ Law member,

∙ Revenue member, and

∙ Accounts member.

The law member shall be the chairperson of the tribunal and, in his or her absence, the revenue
member shall chair the tribunal.

Qualifications for being a member of tribunal: One has to possess the qualifications as follows
in order to be a member of the tribunal:

(a) For the law member, one who is incumbent or is qualified to become a judge of the Court of
Appeal,

(b) For the revenue member, one who, having possessed at least bachelor’s degree and has
gained at least Seven years of experience in revenue administration,

(c) For the accounts member, one who, having possessed at least bachelor’s degree and gained
at least Seven years of experience in revenue administration and accountancy.

Exercise of jurisdiction of tribunal: The Three members shall collectively exercise the
jurisdiction of the tribunal. Majority opinion shall be deemed to be a decision of the tribunal.

Jurisdiction of tribunal: (1) The jurisdiction of the tribunal to hear appeal and petition on a case
relating to revenue shall be as mentioned in this Act and the other prevailing Nepal law.

(2) In hearing an appeal pursuant to Sub-section (1), the tribunal shall have the following
powers:

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(a) To finally dispose of the case,
(b) To remand the case to the office or authority that has disposed of the case originally to try
and dispose the matter within the reasonable period as specified by it and setting out the main
matters to be disposed of in the case, and maintaining the records,
(c) To uphold, reverse, or partially reverse the judgment or order made by the office or
authority that has disposed of the case originally and to take such action and decision as that
lower office or authority is empowered to take,
(d) To examine further evidence by itself and also cause the lower office or authority to examine
evidence,
(e) To exercise such powers including to summon the presence of parties and witnesses, take
their depositions, examine evidence, order the submission of documents and impose
punishment as the court may have pursuant to the prevailing Nepal law.
Appeal to lie in Supreme Court: Only if the Supreme Court grants leave to make appeal to it
considering that the decision of the tribunal will be reversed fully or partly because of a direct
(clear) legal error on any of the following questions, an appeal shall lie in the Supreme Court
against a judgment or final order of the tribunal:
(a) Question of jurisdiction,
(b) Question of having not examined the evidence that should have been examined or having
examined the evidence that should not have been examined,
(c) Question of violation of the procedural law that must be followed,
(d) Question of serious legal error.

Revenue tribunals have been established in Kathmandu, Biratnagar, Pokhara and Nepalgunj.
According to the prevailing practices, it seems that the government has been appointing a High
Court Judge as the chairman of the Revenue Tribunal on the recommendation of the judicial
council.

8.4.3: District Administration Office

The District Administration Office is a general administration of government in each district of

Nepal. The government of Nepal appoints a Chief District Officer in each district to function as
a Chief Administration Officer.

The Local Administration Act, 2028 (1971) was implemented to conduct local administration in
accordance with the decentralized administration system to effectively operate peace and order.
Section 5 of the Local Administration Act was constituted to be a district administration office
in every district to conduct general administration of the district. The DAO in each district of
Nepal works under Ministry of Home Affairs. The main function of the DAO is to maintain
peace, order and security in the district and provide assistance in development activities run by
the federal government, provincial government, District Coordination Committee, urban
municipality and rural municipality.

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Chief District Officer

The Chief District Officer (C.D.O.) is an administrative rank under Ministry of Home Affairs in
Nepal who is appointed by the government as the senior-most executive officer and chief in
charge of general administration of a district . The main guideline to C.D.O. for his/her
administration is the Local Administration Act, 1971. The C.D.O. is responsible for proper
inspection of all the departments in a district such as health, education, security and all other
government offices. In case of threatened public security conditions like riots, she/he can
mobilize security forces and take other actions like imposing curfew order, fixing restricted
area, arresting anyone according to law, hearing some cases as a quasi-judicial body.
Distributing the Certificate of Nepalese Citizenship, processing and recommendation for
passports, maintaining peace and security, law and order, acting as a representative of
government, enjoying the authorities provided by more than 90 prevailing acts make a Chief
District Officer powerful. The C.D.O. is the most powerful position in Nepalese administrative
service. Likewise, Assistant Chief District Officers enjoys almost all the authorities as delegated
by C.D.O. and other laws.

The Local Administration Act, 2028 (1971) Section 8. Original and appellate Jurisdiction:

(1) Chief District Officer shall have the powers to proceed and adjudicate the following cases:
(a) Minor cases of theft having claimed amount upto maximum Five Hundred Rupees, (b)
Cases relating to pick-pocketing,

(d) Cases relating to the use of inaccurate weights and measures for deception, (e) Cases
relating to the slaughter of female animals at places other than temples where it is a
customary practice.
(2) A decision made by the Chief District Officer on cases pursuant to Sub-section (1) in which
one is not recorded as a recidivist criminal and a fine upto Five Hundred Rupees is imposed,
shall be final, and no one may file an appeal against such decision. An appeal against the
decision of the Chief District Officer in cases a fine exceeding Five Hundred Rupees is imposed
or in which a guilty person has been recorded as a recidivist may be filed before the Court of
Appeal within Thirty Five days.

(3) If the Chief District Officer deems necessary in the course of hearing a complaint that the
property of a woman or minor to be kept in safe custody, he/she may direct to keep safe such
property to any prominent person in the district or to any government office with the
cooperation of the Municipality or Rural municipality.

(6) The Chief District Officer shall proceed and adjudicate cases filed pursuant to this Act or
prevailing Nepal law within the time limit stipulated by such law, specifying the laws under
which these cases are to be adjudicated.

Muliki Criminal Code 2074

Muliki Criminal Code 2074 sec.60,61,64,65(1)(2),66,69,70,71,72,73(except the condition of

additional punishment relating offence),

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Offence relating to sec. 84,85,86,87,113,116,117,118,122,123,124,125(expt. Sub sec 4)
165,290, and 291,

Offence relating to sec. 75, 76,77,78,79, 80, 82, 98, 100.

8.4.4: Labour Office

Labour office (Now as Labour and employment Office), works to protect rights through
settlement of individual complaint filed by the worker according to Labour Act 2074 and
interests and benefits obtained by collective bargaining agreement. Its Aim is to ensure just and
foster good industrial relation towards the sustainable industrial growth.

The given authority is for labour inspection to ensure the certain provisions of Labour Act 2074
such as types of employment and employment contract, guaranties of stated minimum wages
and social security provisions such as provident fund, gratuity and insurance to the workers.

Similarly its effort goes to ensure appropriate Occupational Safety and Health condition for the
workers to protect from work related hazards and risks as per labor act in our assigned area. It
will register enterprise level trade union and conducted the authorized trade union election to
ensure workers to enjoy their right of freedom of association & right for the collective
bargaining.

The labour office is also responsible to act on the assignment and activities stated and directed
by Bonus Act 2030 .

8.5: Local Government (Municipality and Rural Municipality)

In addition to the general court, judicial bodies may be formed at the Local level to try cases
under law or other bodies as required may be formed to pursue alternative dispute settlement
methods (Constitution of Nepal, 2072). Article 217 of the Constitution of Nepal has the
provision of judicial committee. There shall be a three member in judicial committee,
coordinated by its Vice-Chairperson in the case of a Rural Municipality and by its Deputy
Mayor in the case of a Municipality, in order to settle disputes under their respective
jurisdictions in accordance with law. In addition to a coordinator, two members are elected by
the members of the Village Assembly or the Municipal Assembly from amongst themselves.

Local government operation act, 2074, provide a judicial committee in every rural municipality
and municipality as per Article 217 of the Constitution (clues 46).The judicial committee have
 right to settle the cases;

border/boundary of land, dams, ditches or distribution and use water, damage to other
crops, pasture land, green fodder, fuel wood, unpaid wages, lost or found of domestic
animals and birds, not caring and looking after elderly citizens, not providing decent
food and clothing or education to minor children or husband-wife, house rent and house
rent facility with amount up to twenty-five hundred thousand annually, planting of
trees to affect other’s house, land or property, throwing water from one’s house or
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balcony to others house, land or public road, not leaving the area of land to be left as per
the law while constructing a house with a window towards the land of the immediate
neighbor, not allowing to use or causing obstruction to a road being used publicly since
ancient times even though it is under the right or ownership of any individual, way out
for cattle, pasture for grazing cattle, drain, canal, pond, rest place, cremation site,
religious site or any other public location and other disputes designated by the federal or
provincial law to be resolved by the local level ( Local Government Operation Act 2074
clause 47.1).

In addition to the rights to resolve disputes mentioned above judicial committee shall have the
right to settle disputes through mediation in only to these disputes;

a land other than government, public or community land owned by one is encroached
by other, construction of house or any structure in a land other than government, public
or community land, noting belonging to the person but of others, divorce between wife
and husband, physical assault that could be liable to a maximum of one years of
imprisonment, other than those leading to dismemberment, defamation, looting and
assault leaving cattle stray or affecting others due to negligence in course of keeping
animals and birds, unauthorized entry to other’s residence, cultivating or possessing
land that is in other’s possession, affecting neighbor with sound pollution or throwing
solid waste, and other civil disputes filed by an individual as claimant which could be
mediated as per prevalent law and criminal disputes that could lead to up to one year’s
imprisonment ( ibid:117,clause 47 sub-clause 2).

In case which are likely to be settle disputes relating to through mediation it shall not be
regarded to have obstructed to file a case directly at the court if the concerned party wishes. In
the disputes mentioned above in the petition must be filed before the Judicial Committee within
the limitation if any such limitation is prescribed to file petition before the case hearing
authority in the prevalent law and within thirty-five days of such act having committed in case
where no limitation has been prescribed.

8.6: Office of Land Revenue in Nepal

The quasi-judicial function of Office of Land Revenue in Nepal according to Land Revenue
Act 2034 B.S. Office of Land Revenue is an office under land administration of Nepal which is
established in all districts of Nepal. It has various functions such as registration of land and its
authentication after proper measurement of land and recording it. Apart from this, this office
also registers the written legal documents, transfer of land, etc. Office of Land Revenue also
performs quasi judicial activity related to the disputes of land and houses. Land Revenue Act
2034, Sections 7, 8, 8(b), 28, 29, 30, 32 (b) includes the quasi judicial function of the office.

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The quasi judicial functions provided to the Office of Land Revenue is an effective way of
solving the disputes related to land. Generally, it has been considered an efficient mechanism to
decrease the pressure of land related cases in the courts and also is expected to adjudicate land
related disputes in a scientific way.

Forest office

“Division Forest Office” is established under the Provincial Government. It has many functions
to protect, promote and utilize the different types of forest to make contribution to national
prosperity. Apart from this it, as quasi-judicial body, entitles some rights to adjudicate the cases
related to the forest offence under the forest Act 2076. The “Divisional Forest Officer” has case
trying authority according to sec Section 67 as below:

67. Case trying authority:

(1) The Division Forest Officer of the Government of Nepal shall try and settle the cases under
this Act which are punishable under this Act by a fine not exceeding two hundred thousand
rupees or imprisonment for a term not exceeding one year or both.

(2)The cases referred to in sub-section (1) shall be tried and settled by following the proceedings
referred to in the Special Court Act, 1974(2028).

(3) The employee of the rank empowered to investigate into the case may immediately fine the
person who is arrested in connection with the offence punishable under this Act by a fine not
exceeding one thousand rupees and release him or her by executing a deed of memorandum to
that effect.

Police Office

Domestic Violence (Offence and Punishment) Act, 2066 (2009)

Filing of complaint: (1) A person who has knowledge of an act of domestic violence has been
committed, or is being committed, or likely to be committed, may lodge a written or oral
complaint setting out the details thereof, with the Police Office, National Women Commission
or Local body.

4) In a case the complaint is filed before the Police Office, the Police Office shall produce the
perpetrator within 24 hours of the complaint, excluding the time of travel and make arrest if
he/she refuses to appear for the statement.

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8) The police officer or local body upon recording the statements pursuant to Sub-sections (4) or
(5) of Section 8 finds reason to believe that an act of domestic violence has been committed and
the Victim so desires, may, within Thirty days from the date of registration of the complaint,
conduct reconciliation between the parties.

(9) The assistance a psychologist, sociologist, social activist and a family member trusted by the
Victim and any other witness as per necessity and availability may be taken while conducting
reconciliation pursuant to Sub-section (8). In the course of such reconciliation psychological of
and social effects on the Victim, as well as his/her right to privacy shall be taken into
consideration.

(10) The Police Officer or Local Body Officer shall ensure the presence of the perpetrator on the
due date during the investigating, prosecuting and decision making process of the complaint.

(11) If the perpetrator fails to appear pursuant to Sub-sections (4) and (5); or he/she cannot be
made present; or the parties fail to settle their dispute through reconciliation, the Police Officer
and Local body, with the consent of the complainant shall, within fifteen days after the expiry of
Thirty days as per Sub-section (8) shall forward to the court, the complaint mentioning all
details, along with evidence and other legal documents incidental thereto.
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UNIT IX: PRINCIPLE OF NATURAL JUSTICES

“Natural justice is a sense of what is wrong and what is right.”

9.1: Concept

Principle of Natural Justice is derived from the word ‘Jus Natural’ of the Roman law. Natural
justice is an expression of English common law, and involves a procedural requirement of
fairness. The principles of natural justice have great significance in the study of Administrative
law. It is also known has substantial justice or fundamental justice or Universal justice or fair
play in action. The principles of natural justice are not embodied rules and are not codified.

Natural Justice implies fairness, reasonableness, equity and equality. These principles did not
originated from any divine power, but are the outcomes of need of judicial thinking, as well as
the necessity to design the norms of fair play

Natural Justice represents higher procedural principles developed by judges which every
administrative agency must follow in taking any decision adversely affecting the rights of a
private individual.

Definition

It is true that the concept of natural justice is not very clear and, therefore, it is not possible to
define it. There is no precise and scientific definition of natural justice. However, the principles
of natural justice are being acceptable and enforced. Different judges, lawyers and Scholars
define it in various ways.

“Natural justice is a natural sense of what is wrong and what is right.” - Lord Esher (1885)

‘Natural justice is the sum total of all those norms which are valid independently of, and
superior to, any positive law and which owe their dignity not to arbitrary enactment but, on the
contrary, provide the very legitimation for binding force of positive law.’ -Max Weber

‘Natural justice indicates rules and procedures to be followed by any person or body charged
with the duty of adjudication upon disputes between or the rights of others.’ –Osborn’s Law
Dictionary

Thus, Lord Esher M.R has defined it as the natural sense of what is right and wrong. Later, he
had chosen to define natural justice as fundamental justice in a subsequent case (Hopkins v.
Smethwick Local Board Of health). Lord Parker has defined it as duty act fairly. Mr. Justice
Bhagwati has taken it as fair play in action.

Basis principle of natural justice:

The principles of natural justice, originated from common law in England are based on two
Latin maxims. In simple words, English law recognizes two principles of natural justice.
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1. Nemo Judex in causa sua or Nemo debet esse judex in propria causa ( Rule against bias). No
man shall be a judge in his own cause, no man can act as both at the one and the same
time- a party or a suitor and also as a judge, or the deciding authority nust be impartial
and without bias.
2. Audi Alteram partem (The rule of fair hearing). Hear the other side, or both the sides must be
heard or no man should be condemned unheard, or that there must be fairness on the
part of the deciding authority.

The above rules make it clear that judiciary must be free from bias and should deliver pure and
impartial justice. Judges must act judicially and decide the case without considering anything
other than the principles of evidence.

The rule against bias

‘Bias’ means an operative prejudice whether conscious or unconscious in relation to a party or

issue. The first principle of natural justice consists of the rule against bias or interest and is
based on three maxims;

(1) No man shall be a judge in his own cause,

(2) Justice should not only be done, but manifestly and undoubtedly be seen to be
done, (3) Judge should be above suspicion.

Therefore, the ‘Rule Against Bias’ strikes against those factors which may improperly influence
a judge in arriving at a decision in any particular case. The requirement of this principle is that
the judge must be impartial and must decide the case objectively on the basis of the evidence on
record.

Kinds of Bias:
The rule against bias may be classified under the following three heads:
1. Pecuniary bias
2. Personal bias
3. Official Bias or Bias as to subject matter.
4. Judicial obstinacy

1. Pecuniary Bias:
Pecuniary is defined as something related to money or that can be valued in money. Pecuniary
bias arises, when the judge has monetary or economic interest in the subject matter of the case.
The judge, while deciding a case should not have any pecuniary or economic interest. In other
words, pecuniary interest in the subject matter of litigation disqualifies a person from acting as
a judge. Griffith and Street rightly stated that a ‘pecuniary interest, however slight, will
disqualify, even though it is not proved that the decision is in any way affected’. In Halsbury’s
Laws of England, it is stated, there is a presumption that any financial interest, however small, in
the matter in dispute disqualifies a person from adjudicating.
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Relevant leading cases

Dr. Bonham's case - Dr. Bonham was fined for practicing in the city of London without license
of the college of Physicians. According to the statute, the college is entitled to half of the amount
and the remaining goes to the King. Coke CJ. Dis- allowed the claim (fine) on the ground that
the college had a pecuniary interest. (Fine against Dr. Bonham was dismissed).

The rule of pecuniary bias was laid down in the case of: Dimes v. D. J Canal. A company filed a
suit against a landowner. Lord Chancellor (judge), who was a shareholder of the plaintiff
company heard the case and decided in favour of the company. On appeal, the House of Lords
quashed this decision on the ground that no man shall be judge of his own cause.

2. Personal Bias:

The second type of bias is a personal one. A number of circumstances may give rise to personal
bias. Here a judge may be a relative or business associate of a party. He may have some
personal grudge, enmity or grievance or professional rivalry against him. In view of these
factors there is every likelihood that the judge may be biased towards one party or prejudiced
towards the other. Personal bias arises from near and dear i.e. from friendship, relationship,
business or professional association. Such relationship disqualifies a person from acting as a
judge. Relevant cases on this point is A.k. kripak v. Union of India . The Supreme Court
quashed the selections made by the selection board on the ground that one of the candidates
appeared before selection committee was also a member of the selection board. State of U.P v.
Mohd. Nooh . In this case a departmental inquiry was held against an employee and one of the
witnesses against the employee turned hostile. The inquiry officer then left the inquiry and gave
evidence against him and thereafter resumed to complete the inquiry and passed the order of
dismissal. The order of dismissal was quashed on the ground of personal bias.
Rajkumar Adhikari v. HMG47

According to court management act no. 30 of Muluki Ain of Nepal it is said that one cannot be a
judge in his/her own case and in this case therefore, the decision of the judge failed where
judge document and his/her signature was itself in question.

Yagmurti Banjade V. bagmati special court48

No one can be judge in subject in which he is involved. The judge should do his work
on the basis of evidence and he should give judgment which gives logic and argument
And should always work in the legal framework and he should be obedient while
doing so

47
NKP 2055,Decision no. 3495, 33
48
NKP 2027, p 157
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3. Bias as to subject matter (official bias):

The type of bias is official bias or bias as to the subject matter. This may arise when the judge
has a general interest in the subject matter. The problem of departmental bias is something that
is inherent in the administrative process, and if it is not effectively checked, it may negate the
very concept of fairness in administrative proceeding. Bias as to subject matter, those cases fall
within this category where the deciding officer is directly, otherwise, involved in the subject
matter of the case.

When the adjudicator or the judge has general interest in the subject matter in dispute on
account of his association with the administration or private body, he will be disqualified on the
ground of bias if he has intimately identified himself with the issues in dispute. Now the
question is, whether this principle can be extended to administrative adjudication also.

In Gullapalli Nagewara Rao v. APSRTC (AIR 1959), the Indian SC quashed the decision of the
Andhra Pradesh government to nationalize road transportation. One of the grounds for
challenge was that the Secretary who gave the hearing was biased, being the person who
initiated the scheme and also being the head of the department whose responsibility it was to
execute it.

Jyoti Baniya v. house of representative49

In this case a pursuant to the Section 60 of forest act, if there is prosecution and decision maker
in same office that is known as official bias. So court held that, second forest officer must file the
sue in front of district officer who was appointed as jury with taking opinion of prosecutor as
per the mentioned law.
[Link] obstinacy

The supreme court has discovered a new category of bias arising from thoroughly unreasonable
obstinacy .It literally means unreasonable and unwavering persistence, and the deciding officer
would not take “no” for an answer. This new type of bias was discovered in a situation where a
judge of the Calcutta High court upheld his own judgment while sitting in appeal against his
own judgment

[Link] Alteram partem (The rule of fair hearing). Hear the other side.

The second fundamental principle of natural justice is audi alteram partem or the rule of fair
hearing. It means no one shall be condemned unheard i.e. there must be fairness on the part of
the deciding authority.
According to this principle, reasonable opportunity must be given to a person before taking any

49
Supreme court bulletin 2055, no. 17, 2-3

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action against him. This rule insists that the affected person must be given an opportunity to
produce evidence in support of his case. He should be disclosed the evidence to be utilized
against him and should be given an opportunity to rebut the evidence produced by the other
party.

Essentials of fair hearing

Generally this Audi Alteram partem maxim includes two elements:

1. Notice
2. Hearing

1. Notice:

There is a duty on the part of the deciding authority to give notice to a person before taking any
action against him. Before any action is taken, the affected party must be given a notice to show
cause against the proposed action and seek his explanation. It is a sine qua non non (necessary
condition) of the right of fair hearing. Any order passed without giving notice is against the
principles of natural justice and is void ab initio (to be treated as invalid from the outset). The
notice must be reasonable and must contain the time, place, nature of hearing and other
particulars. If the notice is defective or vague, all subsequent proceedings would be vitiated.

Relevant case on this point is Punjab National Bank v. All India Bank Employees Federation . In
this case, notice did not contain the charges against which fine was imposed. The Supreme
Court held that the notice defective and quashed the fine. Similarly in R. v. University of
Cambridge (Dr. Bentley's case), In this case, the University authorities without giving any
notice cancelled the degree of Dr. Bentley on the ground of misconduct. The University's action
was held violative of the principle of natural justice.

2. Hearing

Another requirement of maxim Audi Alteram partem is that the person concerned must be
given an opportunity of being heard before any adverse action is taken against him. No one
should be convicted without the chance of hearing and both the sides of the conflict must be
heard before deciding about them are some of the ideas behind it. The concept is also known as
foundational and fundamental. The concept is developed in such a way that it is followed in all
the national and international dispute resolutions. It is the basic requirement of the principle of
natural justice that the opportunity of being heard must be given. Right to hearing provides an
individual to present his case before the court and put forward evidences in support of his case.

In the historic case of Cooper v. Wandsworth Board of Works (1863), the defendant Board had
power to demolish any building without giving any opportunity of hearing if it was erected
without prior permission. The Board demolished the house of the plaintiff under this provision.
The action of the Board was not in violation of the statutory provision. The court held that the
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Board’s power was subject to the qualification that no man can be deprived of his property
without having an opportunity of being heard.

Ingredients of fair hearing:

A hearing will be treated as fair hearing if the following conditions are satisfied:

∙ Adjudicating authority receives all the relevant material produced by the individual ∙ The
adjudicating authority discloses the individual concerned evidence or material which it
wishes to use against him
∙ The adjudicating authority providing the person concerned an opportunity to rebut the
evidence or material which they said authority wants to use against him

9.2: REASONED DECISION (SPEAKING ORDERS)

Speaking order means an order speaking for itself. To put it simply, every order must contain
reasons in support of it. Reasoned decision is also considered as another component of the
principle of natural justice. The idea is developed from the concept that the parties of a dispute
should have information about the judicial process along with sufficient explanation and
reasons supporting the decision. So, reasoned decision is considered as third principle of
natural justice.
Reason is an essential requirement of the rule of law. It provides a link between fact and
decision, guard against non-application of mind, arbitrariness, and maintains public confidence
in judicial and administrative authorities. Reasons also serve a wider principle that justice must
not only be done, it must also appear to be done.
Highlighting its value Lord Denning observed that giving of reasons is one of the fundamentals
of good administration. The reasoned decision brings clarity in the decision, reduces discretion
and satisfies the parties concerned against whom the order is passed. To provide safeguard
against the arbitrary exercise of powers by these authorities, the condition of recording reasons I
imposed on them.
Reasoned decision stops injustice opposed discretion. It saves from the negative effective of
random and personalized decisions, creates a link between fact and the decision and shows
how the decision maker has evaluated and analyzed the subject matter.
There are three reasons behind the concept of a reasoned decision.

∙ The reasons and explanations mentioned in the decision can be challenged while appealing
or finding alternative treatment against the decision.
∙ Discretionary power can’t be misused while making a reasoned decision. ∙
The reasoned decision satisfies the parties to the case.
The reasoned decision should reach the conclusion with relevant, reliable, and convincing facts
of the dispute along with the proper interpretation and explanation on the basis of the facts. The
reasoned decision becomes mandatory when the law itself has provided such a condition. This
is the duty of a decision maker to make reasoned decisions even if the law hasn’t made it
mandatory which will reflect that she has not reached the proper decision.

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Supreme Court has mentioned that reasoned decision provides grounds to check whether the
discretionary power is utilized in a just way or not. Unreasoned decisions can’t be considered
just. The provision of reasoned decision controls the government from being autocratic. 50
The supreme court has observe in the case of Devendra Mandal that a reasoned decision
becomes fair and transparent as it mentions everything. In the reasoned, fair and transparent
decision, there is less abuse of authority or discretion. 51
9.3: DUE PROCESS
Herbert L. Packer, a law professor at Stanford University, developed two models(1968); "due
process model" and "crime control model" in criminal justice system which he describes as the
outcome of competition between two value systems: The crime control value and the due
process value. The due process model belief is that individual’s life, liberty, or property cannot
be deprived without appropriate legal procedures and safeguards. Any person charged with a
crime is required to have their rights protected by the criminal justice system under the due
process model. In the due process model people that are arrested are perceived to be innocent
until proven guilty in a court of law.
The due process model is an understanding that a person who has come into contact with one
of the criminal agencies cannot have their rights rejected without appropriate legal measures.
Therefore, any individual who is being or has been charged with a crime, they have several
rights in which the criminal agencies have to uphold as the individual is protected under
human rights which could be said to co-inside and relate to the due process model.
The due process model represents traditional politically liberal values. In this model, the
principal goal of criminal justice is at least as much to protect the innocent as it is to convict the
guilty. The due process model is based on the doctrine of legal guilt and the presumption of
innocence.
The concept of due process originated in English Common Law. The rule that individuals shall
not be deprived of life, liberty, or property without notice and an opportunity to defend
themselves predates written constitutions and was widely accepted in England. The MAGNA
CARTA, an agreement signed in 1215 that defined the rights of English subjects against the
king, is an early example of a constitutional guarantee of due process. That document includes a
clause that declares, "No free man shall be seized, or imprisoned ... except by the lawful
judgment of his peers, or by the law of the land". This concept of the law of the land was later
transformed into the phrase "due process of law." A fundamental, constitutional guarantee that
all legal proceedings will be fair and that one will be given notice of the proceedings and an
opportunity to be heard before the government acts to takeaway one's life, liberty, or property.
It is also, a constitutional guarantee that law shall not be unreasonable, arbitrary, or capricious.
Due process is the principle that the government must respect all of the legal rights that are
owed to a person according to the law. Due process holds the government subservient to the
law of the land, protecting individual persons from the state. Due process has also been
frequently interpreted as placing limitations on laws and legal proceedings, in order for judges
instead of legislators to define and guarantee fundamental fairness, justice, and liberty. This
interpretation has often proven controversial, and is analogous to the concepts of natural justice.
50
Badri K. Basnet vs. Secretariat of Council of Mnisters, NKP 2051, vol.1, Decision Number 4985 51
Devendra Mandal v. Government of Nepal, NKP 2064, vol 6, decision no.7862
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9.4: Principle of Natural Justice in Administrative Decision
The dispute about the use of principle of natural justice remained for a long period. But there
was no doubt that the proceedings of the courts, judiciaries and quasi-judiciaries should follow
the principle of natural justice. The principles of natural justice are not ‘embodied rules’. Each
case has to be decided on its own merits and that the principles of natural justice are variable
according to the nature of the quasi-judicial body (administrative body) which is in question,
facts and circumstances of the case, the framework of the law under which the inquiry is held
and so on. Previously, the court also versioned that administrative decisions don’t need to
follow the principle of natural justice.
Lord Denning stated in a case that the principle of natural justice is to be followed in judicial
preceding not in administrative, however later he changed his idea and observed that legally
established institution should use discretionary power impartially and fairly whether the
institution is judicial, quasi-judicial, or administrative.
Previously, in a case, Indian Supreme court observed that it is erroneous to say that the
administrative orders should also follow the principle of natural justice. In another case, the
court held that the maxim ‘audi alteram partem’ should be made mandatory in judicial and
quasi-judicial decision.
Certainly the principle of natural justice should be followed by the judicial, quasi-judicial as
well as administrative authorities for the purpose of fair justice.
9.5: Application of principle of natural justice
Provision relating to the right to justice enshrined as the fundamental rights in the constitution
can be linked to principle of natural justice which includes;

∙ Provision of fair trail, consultation with the lawyers, free legal assistance, ∙ Preamble of
constitution embodies the impartial judiciary and rule of law, and constitution has
provision that the judiciary will function on the basis of established standards and principle
of justice.
∙ Provision of judiciary review, chance of self-defense to the justice or chief justice who is
charged with impeachment.
∙ ‘Code of conduct for judges’ bars the judges to decide the case of the relative and the cases
where there is special interest of the judges
∙ Section 176 of Muluki Criminal Procedure Code 2074 provides that the judge/s shouldn’t
hear the case where there conflict of interest.
∙ Section 18 of Good Governance (Management and conduction) Act 2064 has provisioned
that the administrative authority shouldn’t decide on the matter of his/her interest.
9.6: Exception of the principle of natural justice
∙ Principle of natural justice shouldn’t be used when the law itself excludes it expressively ∙

The work of legislative nature or law making process may also exclude it ∙ In the cases
where secrecy is needed for the public interest
∙ It is not mandatory in the period of emergency

∙ When there is an established and indisputable fact

∙ When there is fair and impartial justice

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∙ Section 56 of the Civil Service Act 2049 can be taken as an example of an exception to the
principle of natural justice
∙ Supreme Court has also observed that the principle of natural justice is applied where
there is absence of explicit legal provision, where there is an explicit legal provision, the
principle of natural justice is not applied.
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UNIT X: OMBUDSMAN
10.1: Concept of Ombudsman
The word Ombudsman originated from the Swedish word ‘ombuds’ that means an officer or
commissioner. In other words, “Ombudsman” means a delegate, agent, officer or
commissioner.

The word ‘ombudsman’ is Swedish, and means a representative of the people. Ombudsman
first introduced in Sweden by King Charles XII in 18th century. In Sweden, the office of Justitie
ombudsman was established in 1809. Finland introduced a similar office in 1919, as did
Denmark in 1955. In 1963, Norway followed, with a parliamentary ombudsman, the model
which had been adopted by New Zealand in 1962. During the 1970s, countries throughout the
world adopted some form of office of ombudsman.

Definition

A precise definition of Ombudsman is not possible but Garner rightly states that he is ‘an
officer of the Parliament, having his primary function, the duty of acting as an agent for
Parliament, for the purpose of safeguarding citizens against abuse or misuse of administrative
power by the executive.

Similarly, According to Professor SK Agrawal, the term ombudsman refers only to institute,
which have three basic and unique characteristic which are as follows

i) Ombudsman refers only is an independent and non-partisan officer of the legislature who
supervise the administration.

ii) He deals with specific complaints from the public against administrative injustice and
maladministration.
iii) He has the power to investigate, criticize and report back to the legislature, but not to
reserve administrative action.

It is a unique institution which leads to an ‘open government’ by providing a democratic

control mechanism over the powers of the State. Ombudsman acts as an external agency,
outside the administrative hierarchy, to probe into administrative faults. The ombudsman is a
part of the system of administrative law for scrutinizing the work of the executive.

The purpose of the Ombudsman is to control the administration and thus give protection to the
citizen against injustice brought about by faulty administration.

∙ Ombudsman also helps in gradually improving administrative procedures by making

recommendations for modifying these procedures.
∙ Ombudsman provides a valuable method of investigating complaints against government
 departments.

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∙ Ombudsman assists an individual to secure an appropriate remedy by the department. The
remedy make take several forms, e.g, apology, fresh decision, payment of ex gratia
(payment for moral obligation) compensation; any other financial benefit (as for e.g,
waiver of arrears of tax, payment of interest or refunding of expenses), departmental
review of his case and similar other cases, review of relevant departmental policy, or
review of delegated legislation contributing to injustice to the citizen.
∙ On the whole, Ombudsman seeks to hold the balance between the citizen and the state and
thus he contributes to the greater efficiency and humanity of the administrative process.

Characteristics of Ombudsman
According to Larry B. Hill, Ombudsman is an organization which protects the rights and
interest of the people by investigating the abuse of authority and maladministration of a public
official. Ombudsman is a permanent organization that is independent of the court and is
mandated to take timely action against the complaints and queries relating to administrative
distortion and discrepancies. It takes action against the abuse of authority by public officials.
Larry B Hill has highlighted the following characteristics of the Ombudsman

∙ Establish as a separate entity that is functionally autonomous

∙ Operationally independent of both the legislature and the executive

∙ Ombudsman is a legally established governmental official

∙ A monitoring specialist

∙ Administrative expert and professional

∙ Non-partisan

∙ Normatively universalistic

∙ Client centred but not anti-administration

∙ Popularly accessible and visible

∙ High –status institution

10.2: Nature, Scope and Functions

Status/Nature
Generally, the Ombudsman us a judge, or lawyer or a higher officer and his character,
reputation, and integrity are irreproachable. Ombudsman is an independent and impartial. He
is appointed by Parliament and thus he is not an officer in the administrative hierarchy. He is
above party politics and is in a position to think and decide objectively. There is no interference
even by Parliament in the discharge of his duties. He makes a report to Parliament and sets out
reactions of citizens against the administration. He also makes his own recommendation to
eliminate the causes of complaints. Thus, in short, he is the watchdog or public safety valve
against maladministration and the protector of the little man.
Scope/jurisdiction of Ombudsman
Richard Crossman has highlighted the jurisdiction of the Ombudsman illustrating the
maladministration government agencies,

∙ Biasness in action and decisions

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∙ Negligence in service delivery

∙ Lack of seriousness in public officials towards their duties

∙ Incompetence in work performance

∙ Inaptitude in performing public duties

∙ Perversity

∙ Arbitrariness in decision making

Generally, Ombudsman does not have jurisdiction in the following areas

∙ Private person and private companies

∙ Action of the head of the state

∙ Policy based decision of the cabinet ministry

∙ Acts and decisions of the parliament

∙ Judicial decisions

∙ Cases pending in the court

∙ Cases being investigated by the police

∙ Non-governmental organization and international non-governmental organization ∙

In cases where constitution or Act has provided separate measure
Major Functions of Ombudsman
Ombudsman functions as a vigilant towards the actions of public officials. Some of its functions
are

∙ To protect the fundamental rights of the people

 ∙ To ensure effective execution of laws and policies of the nation

∙ To establish the rule of law

∙ To ensure transparency and accountability

∙ To ensure quality service delivery

∙ To measure arbitrariness of administrative decisions

∙ To provide compensation to the victims of maladministration

∙ To prepare an annual report under his duty

Models of the Ombudsman

Anita Stuhmcke has identified three models of classical ombudsman which reflect the degree to
which an ombudsman office promotes the quality of government administration, a role which is
being given increased priority by several ombudsman around the world.

∙ Reactive Ombudsman Model : An office provided for by the constitution or by an action

of the legislature or parliament and headed by an independent, high-level public official
who is responsible to the legislature or parliament who receives complaints from
aggrieved persons against government agencies officials and employees or who acts on
his/her own motion, and who has the power to investigate, recommend corrective
action and issue report.
∙ Variegated Ombudsman Model : This model is characterized by an increasing scale and
scope in the jurisdiction of the classical ombudsman. While the emphasis of the
institutions in this model remains upon the essential core features of an ombudsman

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what distinguishes this group of ombudsman is growth in both the number and variety
of functions they perform. To address varied sectoral issues it forms its own
organizational structure and performs its activities accordingly.
∙ Proactive Ombudsman Model : This model not only focuses on the traditional role of an
ombudsman whereby it receives and investigates the complaint, it also empowers
ombudsman to raise public awareness and help citizen to be proactive to check the
possible corruption and misconduct.

10.3: Complaints Handling (See CIAA Act 2048)

10.4: Investigation and Decision (See CIAA Act 2048)
10.5: Prevention of Corruption and Commission for Investigation of Abuse of
Authority; a) Functions
b) Authorities
c) Power delegation
CIAA in Nepal

The Commission for the Investigation of Abuse of Authority (CIAA) is a constitutional body
mandated with controlling corruption and investigating financial irregularities and corruption
involving public officials. It is a distinctive anti-corruption agency in South Asia,
simultaneously playing the roles of ombudsman, investigator and prosecutor. The CIAA has
the right to access bank, financial, and commercial records when investigating public sector
corruption and it has used this right in some cases. It aims to crack down on corruption using a
systems-based approach. It also focuses on detection and punishment of corrupt behavior, as
well as social, cultural and institutional reform.

Function of CIAA

∙ Prevention,

∙ Investigation,

∙ Prosecution

Constitution of Nepal, Article 239 consists of the following Functions, duties and powers of the
Commission for the Investigation of Abuse of Authority:

(1)The Commission for the Investigation of Abuse of Authority may, in accordance with law,
conduct, or cause to be conducted, investigations of any abuse of authority committed
through corruption by any person holding public office.

(2) In the case of the persons who can be removed from office by passing a motion of
impeachment under Article 101, the Judges who can be removed by the Judicial Council and
the persons who are liable to action under the Army Act, it may conduct, or cause to be

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conducted, investigations in accordance with the Federal law after they have been removed
from office.

(3) If the Commission for the Investigation of Abuse of Authority finds, on investigation
conducted pursuant to clause (1) or (2), that a person holding public office has committed an act
which is defined by law as corruption, it may file, or cause to be filed, a case against that
person and other person involved in that offense in the competent court in accordance with
law.

(4) If, on investigation conducted pursuant to clause (1) or (2), any act or action done or taken by
a person holding public office appears to be of such nature as to be falling under the
jurisdiction of another official or body, the Commission for the Investigation of Abuse of
Authority may write to the concerned official or body for necessary action.
(5) The Commission for the Investigation of Abuse of Authority may delegate any of its
functions, duties and powers on the conducting of investigations or filing cases, to the Chief
Commissioner, a Commissioner or an officer employee of the Government of Nepal to be
exercised and complied with subject to the specified conditions.

(6) Other functions, duties and powers and rules of procedure of the Commission for the
Investigation of Abuse of Authority shall be as provided for in the Federal law.

Role of CIAA as an Ombudsman in Nepal

There is no equivalent of an ombudsman in Nepal. However, the Commission for the

Investigation of Abuse of Authority (CIAA) serves as a forum for complaints by the citizens
against government employees and entities. Nepal does not have an ombudsman per se, but the
Commission for the Investigation of Abuse of Authority (CIAA) covers the same functions as an
ombudsman as it mediates citizens’ complaints against government employees and entities. No
existing laws or regulations in Nepal clearly define the role of the CIAA or the NVC as an
ombudsman.

The Commission for the Investigation of Abuse of Authority (CIAA) is a top Constitutional
Body, which serves as the watchdog against vice, such as the abuse of authority and the
resultant chain of corruption which exists in the country.

The CIAA is considered as the Ombudsman in Nepal because of the following reasons as
referred to from the definitions dealt above:

Investigative and Prosecutive Role

It conducts inquiries and investigations into corruption and improper conduct as defined by the
law, allegedly committed by persons holding public positions. It has authority to investigate all
officials holding public positions, from the Prime Minister to low-ranked public

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servants. However, it has no jurisdiction over any official in relation to whom the constitution
itself separately provides for such action and any official to be prosecuted under the Army Act.
Based on the findings, the Commission may file a case against the persons, alleged to have
committed corruption, in the court of law. A special court has now been established to look into
such cases.

Corrective and Recommendatory Role

If investigation leads to a finding of an “improper act”, the Commission may admonish,

recommend departmental actions (in the case of Judges and chiefs and members of
constitutional bodies) or ask for recovery of the loss inflicted by such an act. The Commission
may make suggestions or recommendations to the government for amending laws or making
certain improvements in the functions and procedures of the government, or part thereof, with
a view to enhancing and improving good governance practices in the country.
Preventive Role

The law provides for the CIAA to undertake appropriate awareness, information dissemination
and sensitization programmes to prevent officials of the government and the public at large
from indulging in corrupt practices.

Some cases relating to effectiveness of CIAA:

Mr. Badri Bahadur Karki v CIAA

Sunil maske has been trying to export the Indian money. And he was under the prosecute and
he was acquitted by the court with return that money. CIAA initiates to appointed a
investigator officer. He asked clarification with setting some legal question to attorney general
about the acquittal of Sunil Maske.

Petitioner contention: as being an attorney General, decision made on the basis of Article 110(2)
is valid. CIAA does not have authority to inquiry and find out right or wrong upon the
decision. The action of CIAA is out of jurisdiction and illegal.

Defendant submission: On the basis of the article 98 of the constitution kingdom of Nepal,
Attorney general does not have the immunity to be inquiry from CIAA. Article 98(3) provides
to prosecute or not prosecute in regard of abuse of authority or corruption to CIAA. Article
98(3) is not narrowed by Article 110(2), they have equal status. There is no clear constitutional
provision to be out of the jurisdiction to attorney general. CIAA has authority to ask
clarification to Attorney General. Sunil Maske has been arrest with illegal money and he was
acquitted with return that money. In this regard to ask for clarification is the due process of
CIAA. In this situation the writ was not necessary to file by Attorney General.

Verdict of the court: Abuse of authority doing by unreasonable act or corruption by Attorney
General, in this regard CIAA have right to investigate upon it. CIAA does not have right to do
investigate upon the decision given by the Attorney General is not acceptable statement.

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Petition should be given the answer of the question set out by CIAA. No existing situation to
file writ so it is declared void.

Laya Prashad Khatri v CIAA

In this case the person who is second class officer made the forged and fabricated certificate of
M.A. passed in political science from C.N. Mithila University for the purpose of promotion.
CIAA after the investigation found that the certificate presented to Public Service Commission
is forged. Then CIAA filed the case being base on the provision of ‘Corruption Prevention Act
2017’ sec.7 (1) and sec (12).

The Supreme Court held that the document shows that certificate is forged. So the demand of
CIAA and punishment (decision) of special court is (seems) lawful and reasonable.
Complaints Handlings and investigation & Decision →See CIAA Act 2048

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