Delegated Legislation

Meaning
1. Delegation- Black’s Law Dictionary- an act of entrusting a person with the power or empowering
him to act on behalf of that person who has given him that power or to act as his agent or
representative.
2. Delegated legislation- exercising of legislative power by an agent who is lower in rank to the
Legislature, or who is subordinate to the Legislature. Additionally alluded to as an auxiliary
legislation, is an enactment made by an individual or body other than Parliament.
3. Parliament- Act of Parliament- can allow someone else or somebody to make enactment.
4. Act of Parliament- makes the system of a specific or law and tends to contain an outline of the purpose
for the Act.
5. According to M.P Jain:
a. Exercise by subordinate agency or agency that is lower in rank to legislature delegated to it by the
Legislature.
b. The Subsidiary rules made by the Subordinate Authority in the execution of the power bestowed
on it by the Legislature.
c. Delegated legislation- referred to as Subordinate, Ancillary, Administrative legislation, and Quasi-
Legislation.
History
1. Charter Act, 1833- East India Company was recapturing political impact in India. The act vested the
administrative powers in the hands of the Governor-General-in Council (an official body who was
enabled to make laws and guidelines for revoking, correcting, or modifying any laws or guidelines,
which were for all people regardless of their nationality.)
2. Government of India Act, 1935- contained a serious plan of delegation. The report of the Committee
of Ministers’ Powers was submitted and affirmed which completely settled the case for assignment
of forces and appointment of enactment that was viewed as inescapable in India.
3. Queen v. Burah- nature and extent of Legislature power and the feasibility of its delegation was
considered by the Privy Council. Privy Council- held that Councils of Governor-General was supreme
Legislature and has ample number of powers and who are entitled to transfer certain powers to
provincial executors. At the time of passing of New Delhi Act of 1912, the Privy Council accepted
the transfer of Legislature power to the Executive.
Need
1. Pressure on Parliament – The number of activities in states is expanding which requires law and it is
not possible for the Parliament to devote sufficient time to every matter. Therefore, for this, the
Parliament has made certain policies which allows the executives to make laws accordingly.
2. Technicality – Sometimes there are certain subject matters which requires technicality for which there
is a requirement of the experts who are professional in such fields and members of Parliament are not
experts for such matters. Therefore, here such powers are given to experts to deal with such technical
problems like gas, atomic, energy, drugs, etc.
3. Flexibility – It is not possible for the Parliament to look after each contingency while passing an
enactment and for these certain provisions are required to be added. But the process of amendment is
very slow as well as the cumbersome process. Thus, the process of delegated legislation helps the
executive authority to make laws according to the situation. In the case of bank rate, policy regulation,
etc., they help a lot in forming the law.
4. Emergency – At the time of emergency, it is not possible for the legislative to provide an urgent
solution to meet the situation. In such case delegated legislation is the only remedy available.
 Therefore, in the times of war or other national emergencies, the executives are vested with more
powers to deal with the situation.
5. The complexity of modern administration – With the increasing complexity in modern administration
and the functions of the state being expanded and rendered to economic and social spheres too, there
is a need to shift to new reforms and providing more powers to different authorities on some specific
and suitable occasions. In a country like Bangladesh, where control over private trade, business or
property may be needed to be imposed, and for implementation of such a policy so that immediate
actions can be taken, it is needed to provide the administration with enough power.
Constitutionality of delegated legislation
1. Position in USA: Not allowed theoretically in the constitution of the USA because of the two reasons:
Separation of Power and Delegatus non potest delegare. Since Congress was itself a delegate, how
can it delegate its power. The framers of the American Constitution were imbued with the political
theories propagated by John Locke and Montesquieu. Political theory propagated by John Locke and
Montesquieu were imbued on the framers of the American Constitution. Doctrine of ‘delegatus non
potest delegare’ has been given by John Locke. He said- that a legislative cannot delegate his powers
of law-making to any person or cannot place it anywhere. He further stated that there should be
separate Legislature and Executive because if the power of law making and execution of that laws go
in one hand it can be misused and these people use that power to exempt them from that law and use
it for their private advantage. Montesquieu has given the concept of ‘Separation of Powers.’ He said-
one person cannot exercise all the three powers of the government i.e., the Judiciary, the Legislature,
and the Executive. The Legislature should make laws and should not enforce or administer it.
Similarly Executive should not interfere in the work of Judiciary and Legislature and Judiciary should
be free from Executive and Legislature. All should do their work separately.
2. Position in India: Pre Independence- Queen v. Burah wherein the Privy Council had validated
only Conditional Legislation and therefore as per its reasoning delegated legislation is not permitted.
The administration of civil and criminal justice within the said territory was vested in such officers
as the Lieutenant-Governor may from time to time appoint. Privy Council has stated that it is better
to take help from the subordinate agency in framing the rules and regulations that are going to be the
part of the law and giving another body the essential legislative features that has only given to the
Legislature through the Constitution. He also stated about the essential legislative function that
included in determining the legislation policy. King Emperor v. Benoari Lal Sharma- Conditional
legislation was again applied by the privy council wherein the validity of an emergency ordinance by
the Governor-General of India was challenged inter alia on the ground that it provided for setting up
of special criminal courts for kinds of offences, but the actual setting up of the courts was left to the
Provincial Governments which were authorised to set them up at such time and place as they
considered proper. The Judicial Committee held that "this is not delegated legislation at all. It is
merely an example of the not uncommon legislative power by which the local application of the
provisions of a statute is determined by the judgment of a local administrative body as to its
necessity." The privy council held that “Local application of the provision of a state is determined by
the judgment of a local administrative body as to its necessity.”
Post Independence- The Constitution of India does not provide the same position as the prominent
British Parliament provide to the delegation of legislative powers and how far delegation is
permissible has got to be confirmed in India as a matter of construction from the express provisions
of the Indian Constitution. It cannot be said that an exhaustible right of delegation is inherited in the
legislative power itself. Raj Narain Singh v. Chairman, Patna Administration Committee Air- wherein
the Bihar & Orissa Act, empowered the local administration to extend to Patna the provisions of any
sections of the act (Bengal Municipality Act, 1884) subject to such modification, as it might think fit.
The Supreme Court of India upheld the delegation of power given to the executive by the legislature.
Forms of Delegated Legislation
1. Title-based classification: An Act may empower an authority to make regulations, rules, or bye-laws,
to make orders, or to give directions. There is scarcely a limit to the varieties of legislative provisions
which may exist under different names.
2. Discretion-based classification (Conditional Legislation): Another classification of administrative
rule-making may be based on discretion vested in rule-making authority. Based on 'discretion'
administrative rule-making may be classified into subordinate and contingent or conditional
legislation.
3. Purpose-based classification: Another classification of administrative rule-making would involve the
consideration of delegated legislation in accordance with the different purposes which it is made to
serve. On this basis, the classification may be an Enabling Act, Alteration Act, Taxing Act,
Supplementary Act, Classifying and Fixing Standard Act, Penalty for Violation Act, etc.
4. Authority-based classification (Sub-Delegation): Another classification of administrative rule-
making is based on the position of the authority making the rules. Sometimes the rule-making
authority delegates to itself or to some other subordinate authority a further power to issue rules; such
exercise of rule-making power is known as sub-delegated legislation. Rule-making authority cannot
delegate its power unless the power of delegation is contained in the enabling Act.
5. Nature-based classification (Exceptional Delegation): Classification of administrative rule-making
may also be based on the nature and extent of delegation. The committee on Ministers Powers
distinguished two types of parliamentary delegation:
6. Normal Delegation: Positive: Where the limits of the delegation are clearly defined in the enabling
Act. Negative: Where the power delegated does not include the power to do certain things.
7. Exceptional Delegation: Instances of exceptional delegation may be: Power to- legislate on matters
of principle; to amend Acts of Parliament; power conferring such a wide discretion that it is almost
impossible to know the limits; to make rules without being challenged in a court of law.
Such exceptional delegation is also known as the Henry VIII clause to indicate executive autocracy.
Control over Delegated Legislation
Impermissible Delegation
1. Essential legislative functions: There is no bar in the constitution of India against the delegation of
legislative power to the executive, but the essential legislative functions cannot be delegated to the
executive at all. Thus, laying down a legislative policy is the function of legislature only and by
entrusting this power to other body, the legislature cannot escape from its duty and create a parallel
legislature.
2. Repeal of law: Power to repeal a law is an essential legislative function. So, if legislature delegates
this power to executive, it will be excessive delegation and will become ultra vires.
3. Modification: Modifying the act in relation to its important aspects is essential legislative function.
So, delegation of such power to modify the act without any limitation is not permissible.
4. Exemption: Without laying down norms and policy for guidance delegation of power of exemption
to executive is not impermissible.
5. Removal of difficulty: Under the guise of removing difficulty, legislature cannot enact a Henry VIII
clause and delegate a function or power which is essential in nature or which cannot be delegated
normally.
6. Retrospective operation: The power of law making in India vests in the legislature. Parliament can
pass a law retrospectively or prospectively subject to the provisions of the constitution. But this
principle cannot be applied in the case of delegated legislation. Giving an act a retrospective operation
is an essential legislative function which cannot be delegated by the legislature to the executive.
7. Future acts: Legislature cannot delegate the power by which the executive can adopt the laws which
may be passed in future because this is an essential legislative function.
8. Imposition of tax: Power to impose a tax is an essential legislative function under article 265 of the
constitution and cannot be delegated by to the executive. Legislature can enact two laws providing
for two taxes of same kind on same commodity but for different purposes. If a particular item is
declared taxable under one enactment and non-taxable under other then there cannot be said that there
is conflict between the two enactments and one cannot repeal the other. Taxing statute should be
construed strictly. Interpretation which favours the assessee is accepted in case of ambiguity. Affairs
of taxing tribunal, elected by representative are wholly immaterial in determining excessive
delegation.
9. Ouster of jurisdiction of court: Jurisdiction of court is a purely legislative function and hence it cannot
be delegated to the executive.
10. Offences and penalties: Making a particular act an offence and prescribing punishment for it is
an essential legislative function and hence is not delegated. But if policy and guidelines are provided
by the legislature in determining an offence and prescribing punishment for it then this power can
validly be delegated by legislature to the executive.
Parliamentary Control
In India the legislative control over administration in parliamentary countries like India is more
theoretical than practical. The control is not that effective as it ought to be. The following factors are
responsible for the ineffectiveness of parliamentary control over delegated legislation in India:
1. The Parliament has neither time nor expertise to control the administration which has grown in
volume as well as complexity.
2. The legislative leadership lies with the executive and it plays a significant role in formulating policies.
3. The very size of the Parliament is too large and unmanageable to be effective.
4. The majority support enjoyed by the executive in the Parliament reduces the possibility of effective
criticism.
5. The growth of delegated legislation reduced the role of Parliament in making detailed laws and
increased the powers of bureaucracy.
6. Parliament’s control is sporadic, general, and mostly political in nature.
7. Lack of strong and steady opposition in the Parliament has also contributed to the ineffectiveness of
legislative control over administration in India.
8. There is no automatic machinery for the effective scrutiny on behalf of the Parliament as a whole;
and the quantity and complexity are such that it is no longer possible to rely on such scrutiny.
Judicial Control
The delegated legislation can be challenged in India in the courts of law as being unconstitutional,
excessive, and arbitrary. It can be controlled by the Judiciary on two grounds, i.e., firstly, it should be on
the ground of substantial ultra vires and secondly, it should be on the ground of procedural ultra vires.
The criteria on which the law made by the executive can be considered as void and null by the court is
that it should not be considered inconsistent by the constitution or ultra vires the parent act from which
it has got the power of making law. The power of examining the delegated legislation in India has been
given to the Supreme Court and the High Court and they play an active role in controlling the delegated
legislation.
In a constitutionally controlled state, maintaining that the laws made by Parliament are not Ultra vires
under the Constitution is the essential function of the judiciary, and that the delegated legislation enacted
under the statute falls within the limits of both the parent statute and the constitution. Judicial control is
a more effective form of control, since the courts have the power to strike down a law if it is ultra vires
with the parent statute or the Constitution.
The term Ultra virus means that beyond power or authority or lack of power. An act may be said to be
Ultra Virus when it has been done by a person or a body of persons which is beyond their power,
authority, or Jurisdiction.
Excessive Delegation
The legislature can delegate its legislative powers subject to its laying down the policy. the legislature
must declare the policy of the law, lay down legal principles and provide standards for the guidance of
the delegate to promulgate delegated legislation, otherwise the law will be bad on account of “excessive
delegation.” So, this doctrine means that the legislature cannot delegate unrestrained uncanalised and
unqualified legislative powers on an administrative body. Delegation is valid only if it is confined to
legislative policy and guidelines. In Sitaram Bishambhar Dayal v. State of UP, court held that whether
the power delegated by legislature to the executive has exceeded the permissible limits in each case
depends upon the facts and circumstances. The question does not admit of any general rule.

Natural Justice
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. They are judge made rules and
are regarded has counterpart of the American procedural due process.
Two principles:
1. Nemo judex in causa sua- No one should be made a judge in his own cause, and the rule against bias.
2. Audi alteram partem- To hear the other party, or no one should be condemned unheard.
Nemo judex in causa sua
The first principle of impartiality translates to “no one shall be an arbitrator on his own or a cause in
which he is interested.” This idea is also known as the Doctrine of Bias, which means the authority to
which the case is assigned should be unbiased and act without favouritism. To instil trust in the system,
justice must be done and seen to be done.
Kinds of Bias: The rule against bias may be classified under Pecuniary bias, Personal bias, Bias as to
subject matter.
1. Pecuniary Bias: Pecuniary bias arises, when the adjudicator/ judge has monetary/ economic interest
in the subject matter of the dispute/ case. The judge, while deciding a case should not have any
pecuniary or economic interest. In other words, pecuniary interest in the subject matter of litigation
disqualifies a person from acting as a judge. In the case of Jeejeebhoy v. Asst. Collector, it was found
that one of the members of the bench of the court was also a member of the co-operative society for
which the disputed land had been acquired. The bench was reconstituted.
2. Personal Bias: Personal bias arises from near and dear i.e., from friendship, relationship, business,
or professional association. Such relationship disqualifies a person from acting as a judge. Relevant
case on this point is A.K. Kraipak vs. UOI, Naquishband, who was the acting Chief Conservator of
Forests, was a member of the Selection Board and was also a candidate for selection to All India cadre
of the Forest Service. Though he did not take part in the deliberations of the Board when his name
was considered and approved, the SC held that `there was a real likelihood of a bias for the mere
 presence of the candidate on the Selection Board may adversely influence the judgment of the other
members'
3. Bias as to subject matter (official bias): Any interest or prejudice will disqualify a judge from
hearing 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. To disqualify on the
ground there must be intimate and direct connection between the adjudicator and the issues in dispute.
Now the question is, whether this principle can be extended to administrative adjudication also. If so,
no decision will be free from bias. In the case of Gullampally Nageswara Rao v. A. P.S.R.T.C, the
government proposed nationalization of motor transport. Objections for nationalization were referred
to be heard by the secretary to the Government, who upheld the validity of the scheme (for
nationalization). It was challenged on the ground that the said secretary in fact, initiated the
nationalization.
Audi alteram partem
The second natural justice principle translates “to listen to the other side.” This principle is required for
a fair hearing, and the rule against partiality would undoubtedly be part of the procedure. According to
this principle, reasonable opportunity must be given to a person before taking any 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.
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. 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. The principle of natural justice must be observed irrespective of the reason, whether the
purpose would be served or not. The case of Maneka Gandhi v. Union of India is a leading case in
personal liberty under Article 21 of Indian Constitution. The petitioner, Maneka Gandhi's passport
was impounded without giving any opportunity (by the government of India) in public interest.
2. Hearing: Fair hearing in its full sense means that a person against whom an order to his prejudice is
passed should be informed of the charges against him, be given an opportunity to submit his
explanation thereto, have a right to know the evidence both oral and documentary, by which the matter
is proposed to be decided and to have the witnesses examined in his presence and have the right to
cross examine them and to lead his own evidence both oral and documentary in his defence. It is a
code of procedure, which has no definite content, but varies with the facts and circumstances of the
case.
Speaking Orders or Reasoned Decision
The third component of natural justice necessitates verbal orders or rational decisions. Giving
explanations for a decision is now universally recognised as one of the basics of effective governance
and protection against arbitrariness. The refusal to provide reasons may raise the possibility that there
are no good reasons to support the decision. As a result, reasons are useful because they can reveal a
legal error, provide grounds for an appeal, or simply remove a lingering sense of injustice on the part of
the unsuccessful party.

Tribunals
The term ‘tribunal’ is used in a significant sense and refers to only the adjudicatory bodies which lie
outside the sphere of the ordinary judicial system. Technically in India, the judicial powers are vested in
the Courts which aims to safeguard the rights of the individuals and promotes justice. Therefore, to
institute an effective system of the judiciary with fewer complexities, the judicial powers are delegated
to the administrative authorities, thus, giving rise to administrative tribunals or administrative
adjudicatory bodies which holds quasi-judicial features.
Difference between Court and Tribunal
Courts:
1. A Court of law is a part of the traditional judicial system.
2. A Court of law is vested with general jurisdiction over all the matters.
3. It is strictly bound by all the rules of evidence and by the procedure of the Code of Civil Procedure.
4. It is presided over by an officer expert in the law.
5. The decision of the court is objective in nature primarily based on the evidence and materials
produced before the court.
6. It is bound by precedents, the principle of res judicata and the principle of natural justice.
7. It can decide the validity of legislation.
8. The courts do not follow investigatory or inquisition functions rather it decides the case on the basis
of evidence.
Administrative Tribunals:
1. The administrative tribunal is an agency created by a statue endowed with judicial powers.
2. It deals with service matters and is vested with limited jurisdiction to decide a particular issue.
3. It is not bound by the rules of the Evidence Act and the CPC unless the statute which creates the
tribunal imposes such an obligation.
4. It is not mandatory in every case that the members need to be trained and experts in law.
5. The decision is subjective i.e., at times it may decide the matters taking into account the policy and
expediency.
6. It is not obligatory to follow precedents and principle of res judicata but the principle of natural justice
must be followed.
7. It cannot decide the validity of legislation.
8. Many tribunals perform investigatory functions as well along with its quasi-judicial functions.
Need of the tribunal
1. Judicial Inadequacy: As traditional has been proved inadequate as burdened excessively and one
cannot expect a fast execution in all matters. So various tribunal provides relief to the courts by
solving disputes in effective and cost saving measures.
2. Technical Expertise: As almost all disputes requires technical know-how of the subject matter of the
suits. As tribunal are handled by the experts thus are able enough to cater to and solve such issues.
3. Enforcement: Administrative authorities has power to enforce the preventive measures such
suspension, cancellation or revocation of licenses and destruction of contaminated articles among
others. The conventional courts usually don’t enforce these solutions.
4. Flexibility of procedure – As there is no rigid procedures and evidence ordeals as in the courts in the
India so there is no fix procedure. Tribunals works on the principle of Natural Justice.
Constitutionality of the Administrative Tribunals
The growth of the administrative tribunals in India can be traced back to the 42nd Amendment of the
Indian Constitution which added Part XIV A and added Article 323A and Article 323 B to the Indian
Constitution. These articles have excluded the jurisdiction of the High Court which are available in
Article 226 and 227 of the Indian Constitution. The effect of the same does not have an effect on the
Jurisdiction of the Supreme Court present under Article 136 of the Constitution of India.
Constitutional amendment:
1. Constitutional (42nd Amendment) Act, 1976: The amendments made two major changes as far as
Tribunals are concerned. It took away the power of superintendence of High court over administrative
tribunals which they possessed under Article 227 of the constitution. After Part XIV, it inserted Part
XIV-A (Article 323-A and 323- B) by enabling Parliament to constitute administrative tribunals for
the purposes specified therein. These amendments may also provide for the exclusion of jurisdiction
of all courts except that of the Supreme court under Article 136.
2. Constitution (44th Amendment) Act, 1978: Article 227 was amended and jurisdiction of High courts
over administrative tribunal had been restored. No amendment was made in Part XVI-A as inserted
by the Constitutional (42nd Amendment) Act, 1976.
Sampath Kumar V. Union Of India (1987) 1 SCC 124:
1. In exercise of the power conferred by Article 323-A of the constitution, Parliament enacted the
Administrative Tribunals Act, 1985. Section 28 of the said Act excluded the power of judicial review
in service matters under Article 226 and 227 of the constitution. The constitutionality of the Act was
challenged before the Supreme Court in this leading case. The constitutional bench upheld the validity
of the Administrative Tribunals Act, 1985.
2. Post Sampath Kumar Position: In Sampath Kumar, the Supreme Court observed that CATs were the
real substitutes of the High Courts de jure as well as de facto in regards to the matters to be dealt with
by them and no void had been created.
L. Chandra Kumar V. Union of India (1997) 3 SCC 261:
After considering various decisions on the point, the larger bench held that the power of judicial review
is the basic and essential feature of the constitution. Parliament is empowered to amend the constitution,
but that power cannot be exercised to damage the essential feature of the constitution. It was held that,
Section 28 of the Administrative Tribunals Act, 1985 and clause 2(d) of Article 323-A and clause 3(d)
of Article 323-B was ultra vires as amended by the 42nd amendment Act, 1976.
Evolution of Tribunals
1. S. P. Sampath Kumar Etc. versus Union of India and Ors., 1986: It is constitutionally valid for
Parliament to create an alternate institution to High Courts with jurisdiction over certain matters
provided that the alternate body has same efficacy as that of the High Court. Such tribunals will be
considered substitutes of the High Courts. Appointments should be made either: (i) by the central
government after consultation with the Chief Justice of India, or (ii) by a high-powered selection
committee headed by Chief Justice of India or a current Supreme Court Judge or current Judge from
the concerned High Court.
2. L. Chandra Kumar versus Union of India and Ors, 1997: A tribunal which substitutes High Courts as
an alternative institutional mechanism for judicial review (to lessen the burden on High Courts) must
have the status of High Courts. Such tribunals will act as courts of first instance in respect of areas of
law for which they have been constituted. However, decisions of these tribunals will be subject to
scrutiny by a division bench of the High Court within whose jurisdiction the concerned tribunal falls.
For a tribunal substituting a High Court, any weightage in favour of non-judicial members would
render the tribunal less effective and potent than the High Court. Only persons with judicial
experience should be appointed to tribunals. To ensure uniformity in administration, a separate
independent mechanism should be set up to manage the appointment and administration of tribunals.
Until such an independent agency is set up, all tribunals should be under the administration of a single
nodal Ministry (such as the Ministry of Law)
3. R. Gandhi versus Union of India & Anr, 2010: Parliament may create alternate mechanism to High
Courts on subject matters in the Union List. There is no need of a technical member if jurisdiction of
courts is transferred to the tribunals solely to achieve expeditious disposal of matters. In any bench,
 technical members must not outnumber judicial members. Only Secretary level officers with
specialised knowledge and skills should be appointed as technical members.
4. Madras Bar Association versus Union of India & Anr, 2014: Group A or equivalent rank officers with
experience in the Indian Company Law Service (Legal Branch) and the Indian Legal Service (Grade
I) cannot be considered for appointment as judicial members. Such officers may be for considered for
appointment as technical members. Administrative support for all tribunals should come the Ministry
of Law and Justice. Neither the tribunals nor their members must seek or be provided with facilities
from the respective parent Ministry or concerned Department.
5. Rojer Mathew versus South Indian Bank Limited & ors, 2019: Judicial functions cannot be performed
by technical members. Provisions to allow removal of judges by the Executive is unconstitutional.
There should be a uniform age of retirement for all members of all the tribunals. Short tenures lead
to control of executives over tribunals causing adverse effects on the independence of judiciary. The
impact of amalgamation of tribunals should be analysed with judicial impact assessment.
6. Madras Bar Association versus Union of India, 2020: National Tribunals Commission should be set
up to supervise appointments, as well as functioning and administration of tribunals. Members will
have a term of five years instead of four years. Members will be allowed to hold office till they reach
67 years of age (instead of 65).
7. Madras Bar Association versus Union of India, 2021: The Court struck down provisions related to
the four-year tenure and minimum age requirement of 50 years for members.

Judicial Review of Administrative Discretion

Discretion means the liberty to act according to one’s pleasure, or at one’s own will. 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 order to ensure that the operation of such discretion does not
disrupt the authenticity of any normally functioning democracy, it is necessary that there is a body that
is established or which keeps a check on the functioning of the administrative discretion.
Failure to exercise discretion
The main objective of discretionary power is that the authorities use it. If there is a failure to exercise
the power by the authorities, the action will be bad. The said thing may happen when there is:
1. Sub-delegation: A discretionary power, must, in general, should be exercised only by the authority it
has been committed to. It is a well-known principle of law when power has been confined to a person,
it is because of his judgment which is trusted, thus he must exercise it personally unless he has been
expressly empowered to delegate it to others.
2. Imposing Fetters on discretion: An authority exercising power must exercise the same after
considering individual cases. Instead of doing that if the authority imposes fetters on its discretion by
adopting fixed rules of policy to be applied to all cases, it will be the failure of exercise of
discretionary power. This does not mean that no policy can be adopted or no principles should be laid
down. This means that even if a general policy is adopted, each case should be considered based on
its merit. In the case of Shri Rama Sugar Industries Ltd. v. the State of A.P., the tax was imposed on
the purchase of sugarcane but the government was granted the authority to exempt any new sugar
factory from payment of tax for three years. The government, however, exercising this power decided
to grant such exemption only in favor of the cooperative sector. The said policy was challenged by
the appellant. The decision was upheld by the Constitution Bench, by the majority of 3:2. However,
it is not be noted that the majority decision was not correct. In the same case the minority rightly
observed, “In fact, the Government by making the policy decision, had shut its ears to the merits of
the individual applications.”
3. Acting under dictation: Sometimes, an authority entrusted with a power does not exercise that power
but acts under the dictation of a superior authority. Here, the authority invested with the power
purports to act on its own but in actual sense the power is exercised by someone else. The authority
concerned does not apply its mind and does not take action on its own judgment, even though it was
not so intended by the statute. In law, this amounts to non-exercise of power by the authority and the
action is bad. It is well-settled that if the authority permits its decision to be influenced by the dictation
of others, it would amount to abdication and surrender of discretion. If the authority “hands over its
discretion to another body it acts ultra vires” Such exercise of power violates the constitutional
scheme.
4. Non- Application of Mind: When a discretionary power is conferred on an authority, the said authority
must exercise that power after applying its mind to the facts and circumstances of the case in hand. If
this condition is not fulfilled, there is clear non-application of mind on the part of the authority
concerned. Thus in this situation, there is failure to exercise discretion and the action is bad. In
Emperor v. Sibnath Banerji, an order of preventive detention was quashed as it had been issued in a
routine manner on the recommendation of police authorities and the Home Secretary himself had not
applied his mind and satisfied himself that the impugned order was called for or not.
Doctrine of Proportionality
The doctrine of proportionality is emerging as a new ground of challenge for judicial review of
administrative discretion. It is a recognized general principle of law evolved with a purpose to maintain
a proper balance between any adverse effects which its decision may have on the rights, liberties or
interests of persons and the purpose it pursues. The doctrine of proportionally endavours to confine the
exercise of discretionary powers of administrative authority to mean which are proportioned to the object
to be pursued.The courts while invoking the doctrine of proportionality may quash the exercise of powers
in which there is not a responsible relationship between the objective which is sought to be achieved and
the means used to that end.
Tests: 'Proportionality' involves a Balancing test which keeps a check on the excessive or arbitrary
punishments or encroachment upon the rights and Necessity test which takes into account other less
restrictive alternates. The principle of proportionality evaluates two aspects of a decision:
1. Whether the relative merits of differing objectives or interests were appropriately weighed or fairly
balanced?
2. Whether the measure in question was in the circumstances excessively restrictive or inflicted an
unnecessary burden on affected persons?
Associated Provisional Picture Houses Vs. Wednesbury Corporation: Under the concept of Secondary
Review the Courts would strike down Administrative Orders only if it suffers the vice of Wednesbury
unreasonableness which means that the order must be so absurd that no sensible person could ever dream
that it lay within the powers of the administrative authority.
Doctrine of Legitimate Expectation
This doctrine serves as a ground of judicial review to protect the interest when a public authority rescinds
from a representation made to a person. A legitimate expectation arises in the mind of the complainant
who has been led to understand expressly or impliedly that certain procedures will be followed in
reaching a decision. The expectation has a reasonable basis. This doctrine has evolved to give relief to
the persons who have been wronged because of the violation of their legitimate expectation and have
not been able to justify their claims on the basis of law. Two considerations determine legislative
expectations-
1. Where an individual or group has been led to believe impliedly or expressly that a certain procedure
will apply.
2. Where an individual or group relies upon a particular policy or guideline which has previously
governed an area of executive action.
Doctrine of Promissory Estoppel
The Doctrine of Promissory Estoppel is basically an equitable doctrine. The Doctrine of Promissory
Estoppel means where one party by his words or conduct made to the other a clear promise which is
intended to create legal relations or even affect a legal relationship to arise in the future, knowing or
intending that it would be acted upon by the other party to whom the promise is made, and it is fact so
acted upon by the other party, the promise would be binding on the party making it and he would not be
entitled to go back upon it, if it would be inequitable to allow him to do so. It clearly means that
administrative action would be marked by certainty, predictability and consistency. Doctrine of
Promissory Estoppel is based on obligation or equity and is not based on vested right. In equity, the court
has to strike a balance between individuals’ right as well the interest of public.
In Gujarat State Financial Corp. v Lotus Hotels (AIR 1983 SC 848) it was held by the Supreme Court
that the writ of mandamus can be issued against the government or its instrumentalities for the
enforcement of contractual obligation because here, the doctrine of promissory estoppel is applicable to
against the government. Here, the lotus hotels entered into the contract with the State Financial
Corporation of Gujarat for a loan for the purpose of construction of a hotel. On this agreed promise, the
petitioner took certain loans and thus incurred liabilities. Furthermore, the loan was refused on the basis
of acting of two pseudonymous letters attacking the character of the proprietors of loan which was
already sanctioned.
Remedies
Five types of writs are available for judicial review of administrative actions given under Article 32 and
Article 226 of the Constitution of India.
1. Habeas Corpus: It means “have the body”. This writ is issued as an order calling upon the person who
has detained another person to produce the detainee before the court of law. If the court finds out that
the detention has been illegal or without legal justification, it will order for the immediate release of
the detainee. The main objective of this writ is not to punish the detainer but to release the detainee
from wrongful detention. In A.D.M. Jabalpur v. Shivakant Shukla , it was observed that “the writ of
Habeas Corpus is a process for securing the liberty of the subject by affording an effective means of
immediate relief from unlawful or unjustifiable detention whether in prison or private custody. If
there is no legal justification for that detention, then the party is ordered to be released.”
2. Mandamus: It means ‘to command the public authority’ to perform its duty. It is a command given by
the higher courts (High Courts and Supreme Court) to the Government, Inferior courts, tribunals,
corporations, authorities or any other person to do any act or refrain from doing an illegal act. The
purpose of this writ is to compel the performance of public duties and to keep control over the
activities of the administration.
3. Quo Warranto: The word ‘quo warranto’ means by what authority. Such writ is issued against a person
who usurps a public office. The court directs the concerned person to show by what authority he holds
that office. The unauthorized or illegal usurper would be removed by judicial order and the right
person belonging to it would be entitled to it. In the case of Niranjan Kumar Goenka v. The University
of Bihar, Muzzafarpur the court observed that the writ of quo warranto cannot be issued if the person
is not holding the public office.
4. Prohibition: Prohibition is issued by a superior court to an inferior court or tribunal or body exercising
judicial or quasi-judicial functions to prevent them from exceeding their jurisdiction. It is based upon
the maxim ‘Prevention is better than cure.’
5. Certiorari: This writ is issued by the Superior Courts (High Courts and the Supreme Court) to the
inferior court or tribunal or body which may exercise judicial or quasi-judicial functions, for the
correction of jurisdiction or error of law committed by them. If any order passed by them is illegal,
then the Superior Court may quash or demolish it. Grounds of this writ are (a) excess or failure to
exercise the jurisdiction (b) violation of the principles of natural justice (c) authority has failed to
correct an error which has been apparent on the face of the record. In the case of A.K. Kraipak v.
Union of India the Supreme Court laid down the distinction between quasi-judicial authorities and
administrative authority. The Supreme Court quashed the decision by issuing the writ of certiorari.

Liability of Government
Crown Privilege: The general rule is- " Souls Populist suprema lex" (Public interest is Supreme law).
On the basis of this, the Crown may refuse to disclose documents or answer questions, if such disclosure
or answer was injurious to "Public Interest". In Duncan v Camell a widow had claimed damages for
death of her husband due to negligence of Government contracts when a submarine tank had killed 99
persons. Certain documents were summoned but the minister claimed "crown's privilege". The court
upheld the privilege.
Though Crown's privilege is not acceptable in India, the Executive or State privilege is stated in Sn 123
of the Evidence Act. It states that evidence from unpublished official records relating to any affairs of
the State should not be given by any person, except with the permission of the Head of the Department.
Such person may give or withhold such permission "as he thinks fit". Leading cases:
Judges transfer case: In the case of S.P. Gupta v. Union of India popularly known as the Judges Transfer
Case the Government Maimed privilege over the correspondence between the Law Minister of the
Government India and the Chief Justices of the Supreme Court and respective High Courts relating to
transfer and non-extension of two judges of High Courts. Rejecting the claim of privilege, the Supreme
Court held that the provisions of the Evidence Act, 1872 should be construed keeping in view our new
Democracy wedded to the basic values enshrined in the Constitution.
Scope: The concept of "right to know", is based on democratic principle that people should know what
the Govt is doing. Hence disclosure by the State must be the rule, and, non disclosure or privilege should
be an exception. This was considered as part of the concept of "right to live" under Art 21 of the
Constitution (Reliance petrochemicals case).
Liability in Torts
State is not a living entity but a legal entity which cannot function without human agency. It is therefore,
that the state has to act through its servants. The concepts of Tortious liability of the state refers to
situation when the state can be held vicariously liable for the wrongs committed by its servants. There
are numbers of constitutional provisions relating to the tortious liability of the state. Under article 294
(b), the liability of the union government or a state may arise out of any contract or otherwise. The word
otherwise indicates that such liability may arise in respect of tortious acts as well the extent of the said
liability is defined in article 300 (l) which declares that the government of India or of a state may sue or
may be sued in relation to their respective affairs in the like cases as the Dominion of India and
corresponding provinces or Indian states might have sued or been sued.
Sovereign And Non-Sovereign Dichotomy Changed Judicial Attitude
It is redeeming to note that the sovereign and non-sovereign dichotomy in the State functions which the
Supreme Court has followed so far, is no being narrowed down by a new gloss over the sovereign
functions of the State The courts started holding most of the governmental functions as non-sovereign
with a result that the area of tortious liability of the government expanded considerably.
Damages
It may happen that a public servant may be negligent in the exercise of his duty. It may, however, be
difficult to recover compensation from him. From the point of view of the aggrieved person,
compensation is more important than punishment. The Courts in India are now becoming conscious
about increasing cases of excesses and negligence on the part of the administration resulting in the
negation of the personal liberty. Hence they are coming forward with the pronouncements holding the
Government liable for damages even in those cases where the plea of sovereign function could have
negative the governmental liability. One such pronouncement came in the case of Rudal Shah v. State of
Bihar. Here the petitioner was detained illegally in the prison for over fourteen years after his acquittal
in a full dressed trail. The court awarded Rs. 30,000 as damages so the petitioner.
Liability in Contract
Article 298 provides that the executive power of the Union and of each State shall extend to the carrying
on of any trade or business and to the acquisition holding and disposal property and the making of
contracts for any purpose. Article 299 (I) lays down the manner of formulation of such contract. Article
299 provides that all contracts in the exercise of the executive power of the union or of a State shall be
expressed to be made by the President or by the Governor of the State, as the case may be, and all such
contracts and all assurances of property made in the exercise of that power shall be executed on behalf
of the President or the Governor by such persons and in such manner as he may direct or authorize.
Article 299 (2) makes it clear that neither the President nor the Governor Shall be personally liable in
respect of any contract or assurance made or executed for the purposes of this Constitution or for the
purposes of any enactment relating or executing any such contract or assurance on behalf of any of them
be personally liable in respect thereof. Subject to the provisions of Article 299 (1), the other provisions
of the general law of contract apply even to the Government contract.

Other Administrative Bodies

Ombudsman
Ombudsman means “the grievance man” or “a Commissioner of the Administration”. A precise
definition of Ombudsman cannot be given. But Garner rightly states that he is “An Officer of Parliament,
having as 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”.
Importance
As regards importance of the Ombudsman his primary function is to investigate allegations of
maladministration. In terms of Utility, Ombudsman means ‘Watchdog of the administration’ or ‘the
protector of the common people’. The Ombudsman inquires and investigates all complaints made by
citizens against the abuse of discretionary power, mal-administration or administrative inefficiency and
takes appropriate actions. For that purpose, very wide powers are given to him. He has access to
departmental files. The complainant is not required to lead any evidence before the Ombudsman to prove
his case. He is empowered to grant relief to the aggrieved person. His function is to satisfy himself
whether his complaint was justified or unjustified. He can act even suo moto. His powers are not limited
like the powers of a Civil Court.
Lokayukta: Some states have adopted the ombudsman system (called Lokayukta). The institution of
Lokayukta has been adopted in several states by enacting a statue. In some states Upalokayuktas have
also been appointed.
Maharashtra was the first state to introduce Lokayukta through the Maharashtra Lokayukta and
Upalokayuktas Act in 1971. Presently there are no Lokayukta in the states of Andhra Pradesh, Arunachal
Pradesh, Jammu and Kashmir, Manipur, Meghalaya, Mizoram, Nagaland, Sikkim, Tamil Nadu, Tripura
and west Bengal.
The Lokayukta under the state Acts is a retired Judge of the Supreme Court or a retired chief justice or
judge of a high court. He is appointed by Governor as a result of consultation between the chief Minister,
Chief justice of High court concerned and the leader of the opposition.
The term of appointment is for five or six years. The Lokayukta gets the same salary, perquisites and
privileges which he was enjoying as a judge or chief justice before retirement.
Central Vigilance Commission
The Central Vigilance Commission, an apex sovereign institution was established in 1964 by a resolution
dated 11.2.1964 to assist the governmental institutions in their vigilance scheme. It was in 1997 that the
Supreme Court in the case of Vineet Narain & Others vs. Union of India & Another, 1 SCC 226, removed
CBI from the purview of the Central Government and placed it under the supervision of CVC. The Court
invalidated the provision that mandated the Central Government’s approval for the CBI to conduct
investigations against higher officials, to ensure an unbiased probe. The Commission was granted with
the statutory status by the ordinance of 1998 that turned into Central Vigilance Act, 2003. It extended
the scope of powers exercised by the Commission and made it a supervisory authority to the CBI.
Functions: The commission’s main concern is matters regarding corruption, misconduct, lack of integrity
or other kinds of malpractices or misdemeanours from the side of the Government servants. The
commission has only advisory jurisdiction. It cannot perform adjudicatory functions. The commission
cannot investigate or enquire into complaints of corruption except to a limited extent.
Functions & Powers
1. Exercise superintendence over the functioning of the Delhi Special Police Establishment (CBI)
insofar as it relates to the investigation of offences under the Prevention of Corruption Act, 1988; or
an offence under the Cr.PC for certain categories of public servants.
2. Give directions to the Delhi Special Police Establishment (CBI) for superintendence insofar as it
relates to the investigation of offences under the Prevention of Corruption Act, 1988.
3. To inquire or cause an inquiry or investigation to be made on a reference by the Central Government
4. To inquire or cause an inquiry or investigation to be made into any complaint received against any
official belonging to such category of officials specified in sub-section 2 of Section 8 of the CVC Act,
2003.
5. Review the progress of investigations conducted by the DSPE into offences alleged to have been
committed under the Prevention of Corruption Act, 1988 or an offence under the Cr.PC
6. Review the progress of the applications pending with the competent authorities for sanction of
prosecution under the Prevention of Corruption Act, 1988
7. Tender advice to the Central Government and its organizations on such matters as may be referred to
it by them.
8. Exercise superintendence over the vigilance administrations of the various Central Government
Ministries, Departments and Organizations of the Central Government.
9. Shall have all the powers of a Civil Court while conducting any inquiry.
10. Respond to Central Government on mandatory consultation with the Commission before making
any rules or regulations governing the vigilance or disciplinary matters relating to the persons
appointed to the public services and posts in connection with the affairs of the Union or to members
of the All India Services.
11. The Central Vigilance Commissioner (CVC) is the Chairperson and the Vigilance
Commissioners (Members) of the Committee, on whose recommendations, the Central Government
appoints the Director of Enforcement.
12. The Committee concerned with the appointment of the Director of Enforcement is also
empowered to recommend, after consultation with the Director of Enforcement appointment of
officers to the posts of the level of Deputy Director and above in the Directorate of Enforcement.
13. The Central Vigilance Commissioner (CVC) is also the Chairperson and the Vigilance
Commissioners (Members) of the Committee empowered to recommend after consultation with
Director (CBI), appointment of officers to the post of the level of SP and above except Director and
also recommend the extension or curtailment of tenure of such officers in the DSPE (CBI).
Administrative law in the context of local self-government
The village panchayat originated as local self-government during the British era as a response to requests
for local autonomy. They distributed power to citizens at the lowest levels of government. The
Government of India Act of 1935 also gives provinces the power to pass legislation. Despite the presence
of local self-government in India, the writers of the constitutions were dissatisfied with the existing laws.
In addition to this, they added Article 40, enabling states to create self-governing bodies in the form of
village panchayats. From 1957 through 1986, four significant committees were formed and worked on
to conceptualise India’s local self-government system. Therefore, it will be beneficial to have an
overview of the four committees and their major recommendations mentioned below.
Committee of Balwant Mehta Committee in 1957: The Indian government originally created the
committee to look into the workings of two of the country’s previous projects. It published its report in
November 1957, where the phrase ‘democratic decentralisation’ initially appeared. Rajasthan was the
first state to adopt the recommendations of this committee in 1959. The important recommendations of
this committee were:
1. Formation of a Panchayati Raj system with a three-tier governance model.
2. The model shall comprise Gram panchayats in villages, Panchayat Samitis in blocks, and Zila
Parishad in districts.
3. The chairperson of the Zila Parishad will be the District Collector.
4. It is necessary to ensure the transfer of resources and power to these bodies.
Committee of Ashok Mehta in 1977-1978: The then-Janata government formed the committee to
examine Panchayat institutions. But unfortunately, the Janata administration fell apart before these
suggestions could be implemented. The following are the most important of the 132 recommendations
given by it:
1. A two-tier structure will replace the three-tier structure
2. Political organisations should take part in elections at all administration levels
3. These institutions will be given mandatory taxing powers
4. At the state level, the Zila Parishad will be administering the planning
5. The state council of ministers will designate a minister for local self-government
Committee of GVK Rao in 1985: The planning commission appointed the committee in 1985. The
committee stated that the development methods were increasingly being removed from local self-
government organisations, resulting in a system with no roots. The major recommendations of this
committee were:
1. The Zila Parishad will be prioritised, and all development activities in this level shall be delegated to
it
2. The position of DDC will be created and will serve as the Zilla Parishad’s top executive officer
3. Elections will be held regularly
Committee of LM Singhvi in 1986: The government of Rajiv Gandhi formed this committee to advise
on the development of Panchayats and their institutions. As a result, the 73rd and 74th Constitutional
Amendment Acts, 1992, were passed during the Narasimha Rao government, making the vision a reality.
Among its key suggestions are:
1. Panchayati Raj Institutions (PRI) are given constitutional legitimacy
2. PRI should have a 3-tier system at village level, block level and district level
3. For groups of villages, Nyaya Panchayats would be established
4. PRIs would be given constitutional recognition
Advantages of Local Self-government
1. People’s problems are solved at the grassroots level by local self-government. The local self-
government is responsible for various necessities such as road building and maintenance, water
availability, school construction, and so on
2. In local self-government, the people have more decision-making power over their problems
3. The people who live in the area have the finest suggestions for how and where money should be spent
on development
4. The local government is best suited to deal with any problem or issue in a specific area

Evolution of Administrative Law and Basic Concepts

Reasons For the Growth of Administrative Law
1. The concept of a welfare state: As the States changed their nature from laissez-faire to that of a welfare
state, government activities increased and thus the need to regulate the same. Thus, this branch of law
developed.
2. The inadequacy of legislature: The legislature has no time to legislate upon the day-to-day ever-
changing needs of the society. Even if it does, the lengthy and time-taking legislating procedure would
render the rule so legislated of no use as the needs would have changed by the time the rule is
implemented. Thus, the executive is given the power to legislate and use its discretionary powers.
Consequently, when powers are given there arises a need to regulate the same.
3. The inefficiency of Judiciary: The judicial procedure of adjudicating matters is very slow, costly
complex and formal. Furthermore, there are so many cases already lined up that speedy disposal of
suites is not possible. Hence, the need for tribunals arose.
4. Scope for the experiment: As administrative law is not a codified law there is a scope of modifying it
as per the requirement of the State machinery. Hence, it is more flexible. The rigid legislating
procedures need not be followed again and again.
Doctrine Of Separation Of Powers
The concept of separation of powers is the rudimentary element for the governance of a democratic
country. This principle corroborates fairness, impartiality and uprightness in the workings of a
government. Although it is not followed in its strict sense yet, most of the democratic countries have
adopted its diluted version under their respective constitutions. In most of the democratic countries, it is
accepted that the three branches are the legislature, the executive and the judiciary.
Separation of powers divides the mechanism of governance into three branches i.e. Legislature,
Executive and the Judiciary. Although different authors give different definitions, in general, we can
frame three features of this doctrine. Each organ should have different persons in capacity, i.e., a person
with a function in one organ should not be a part of another organ. Delegations of legislative power to
subordinate law making bodies etc. In Ram Jawaya V. St. of Punjab the supreme court held that no organ
of the state should exercise functions that essentially belong to the other.
Objectives of Separation of Powers
1. It aims to eliminate arbitrariness, totalitarianism and tyranny and promote an accountable and
democratic form of government.
2. It prevents the misuse of powers within the different organs of the government. The Indian
Constitution provides certain limits and boundaries for each domain of the government and they are
supposed to perform their function within such limits. In India, the Constitution is the ultimate
sovereign and if anything goes beyond the provisions of the constitution, it will automatically be
considered as null, void and unconstitutional.
3. It keeps a check on all the branches of the government by making them accountable for themselves.
4. Separation of powers maintains a balance among the three organs of government by dividing the
powers among them so that powers do not concentrate on any one branch leading to arbitrariness.
5. This principle allows all the branches to specialize themselves in their respective field with an
intention to enhance and improve the efficiency of the government.
Elements of Separation of Powers
1. Legislative: The legislative organ of the government is also known as the rule-making body. The
primary function of the legislature is to make laws for good governance of a state. It has the authority
of amending the existing rules and regulations as well. Generally, the parliament holds the power of
making rules and laws.
2. Executive: This branch of government is responsible for governing the state. The executives mainly
implement and enforce the laws made by the legislature. The President and the Bureaucrats form the
Executive branch of government.
3. Judiciary: Judiciary plays a very crucial role in any state. It interprets and applies the laws made by
the legislature and safeguards the rights of the individuals. It also resolves the disputes within the
state or internationally.