School of Law

Course File
Administrative Law

Course Objectives

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 Course Description
This comprehensive course on Administrative Law in India is designed to provide students with a
thorough understanding of the legal framework governing the actions and decisions of
administrative bodies. In a country where administrative agencies play a crucial role in
governance, this course delves into the principles, doctrines, and procedures that regulate the
exercise of administrative power.
Throughout the duration of the course, students will explore the historical development of
administrative law in India, examining its evolution in the context of constitutional provisions,
statutes, and judicial decisions. The course aims to equip students with the knowledge and skills
necessary to navigate the complex landscape of administrative law, with a particular focus on its
application in the Indian legal system.

Learning Objectives
1. Understand the Foundations of Administrative Law:
• Define and comprehend the fundamental principles and concepts of
administrative law in the Indian context.
• Explore the historical development of administrative law in India, including key
legislations, landmark judgments, and the evolution of administrative agencies.
2. Analyzing Administrative Decision-Making Processes:
• Develop the ability to critically analyze administrative decision-making
processes, including rule-making, adjudication, and discretionary powers
exercised by administrative authorities.
• Evaluate the constitutional and legal limits on administrative discretion, with a
focus on balancing administrative efficiency and individual rights.
3. Examine Judicial Review of Administrative Actions:
• Examine the role of the judiciary in reviewing administrative actions and
decisions.
• Analyze the scope and limitations of judicial review, including the grounds on
which administrative actions can be challenged in court.
4. Comprehend Administrative Accountability and Ethics:
• Explore the mechanisms of administrative accountability, both internal and
external, and their significance in maintaining transparency and integrity in
administrative actions.

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 • Understand the ethical considerations inherent in administrative decision-making
and the legal frameworks addressing conflicts of interest and corruption in the
administrative process.
5. Apply Administrative Law Principles:
• Apply theoretical knowledge to practical scenarios, including case studies and
simulated exercises, to enhance problem-solving skills in administrative law.
• Develop the ability to provide legal advice on administrative matters and
understand the procedural intricacies involved in administrative proceedings.

Pedagogy
A combination of lectures, discussions and problem-solving exercises.

Basic Textbook
M. P Jain & S.N. Jain, Principles of Administrative Law, Lexis Nexis, 2021 (ebook available)

Basic Reference Material and Books

(All e-books available in library or EBC Reader or Lexis Advance)
1. Halsbury’s Laws of India
2. S.P. Sathe, Administrative Law
3. C.K. Takwani, Lectures on Administrative Law
4. I.P. Massey, Lectures on Administrative Law

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 Course Structure

Overall Course Structure

Unit 1
Definition of administrative law – Classification of Administrative Action - Rule of Law –
Judicial review of administrative discretion.

Unit 2
Delegated legislation: Principles, Controls and Safeguards.

Unit 3
Natural justice – Bias – Audi Alterum Partum – Notice – Hearing – Exclusion of natural justice –
Effect of breach.

Unit 4
Administrative Tribunals – Definition, status, working and judicial review – Judicial review of
administrative discretion – State liability – Judicial remedies – Right to Information Act

Unit 5
Administrative Bodies – SEBI, TRAI, Competition Commission of India; Agencies- Civil
Services, Lokpal, Lokayukta and ombudsman.

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 Detailed Course Structure with Table of Topics and Sub-Topics for Session Plan

1. Definition of Administrative Law

1.2 Nature, growth, scope and relationship with administrative law
1.3 Rule of Law – Dicey, Bingham, Baxi
1.4 Separation of Powers
2. Delegated Legislation
2.1 Meaning, Illustrations, Reasons for Growth
2.2 Judicial control
2.3 Legislative control
2.4 Procedural Control
3. Administrative Discretion
3.1 Mala fide
3.2 Non-application of mind
3.3 Violation of natural justice principles
4. Natural justice: Concept
4.1 Bias
4.2 Fair hearing (notice, representation, cross-examination, reasoned decision)
4.3 Effect of Breach
5 Judicial Review
5.1 Writs
6 Right to Information Act
7 Tribunals: Constitutionality
7.1 Overview of tribunals
7.2 Adjudication by Tribunals
8 Commissions of Inquiry
8.1 Central vigilance commission
8.2 Overview of SEBI
8.3 Overview of TRAI
8.4 Overview of Competition Commission of India
8.5 Lok Ayukta, Lokpal, Ombudsman
9 State Liability for Torts and Contracts

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 Unit I

This unit will help you

- Define administrative law
- Understand the differences between administrative and constitutional law
- Understand the parameters of ‘Rule of Law’
- Critically examine ‘Rule of Law’ in India.
- Apply principles of judicial review of administrative discretion.

1.1 Definition of administrative law

Sir Ivor Jennings has defined administrative law as “the law relating to the administration. It
determines the organization, powers and duties of administrative authorities”, in the Law and the
Constitution (1959); According to Wade, administrative law is “the law relating to the control of
governmental power”, as defined in Principles of Administrative law, (1967); KC Davis defines
administrative law as “the law concerning the powers and procedures of administrative agencies,
including especially the law governing judicial review of administrative actions,” in
Administrative Law Text (1959).
Administrative law involves the study of how those parts of our system of government that are
neither legislatures nor courts make decisions. These entities, referred to as administrative
agencies, are normally located in the executive branch of government and are usually charged with
the day–to–day details of governing.
Administrative Law deals with the structure, powers and functions of the organs of administration,
the limits on 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 rights are infringed by their operation.

[Read the following extract from S. R. Bommai case on the relationship between
constitutional and administrative law]

“He contended that there is difference in the nature and scope of the power of judicial review in
the administrative law and the constitutional law. While in the field of administrative law, the
Court's power extends to legal control of public authorities in exercise of their statutory power and
therefore not only to preventing excess and abuse of power but also to irregular exercise of power,
the scope of judicial review in the constitutional law extends only to preventing actions which are
unconstitutional or ultra vires the Constitution. The areas where the judicial power, therefore can
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operate are limited and pertain to the domain where the actions of the Executive or the legislation
enacted infringe the scheme of the division of power between the Executive, the Legislature and
the judiciary or the distribution of powers between the States and the center. Where, there is a Bill
of Rights as under our Constitution, the areas also cover the infringements of the fundamental
rights. The judicial power has no scope in constitutional law beyond examining the said
infringements. He also contended that likewise, the doctrine of proportionality or unreasonableness
has no play in constitutional law and the executive action and legislation cannot be examined and
interfered with on the anvil of the said doctrine.
We are afraid that this contention is too broad to be accepted. The implication of this contention,
among others, is that even if the Constitution provides preconditions for exercise of power by the
constitutional authorities, the Courts cannot examine whether the preconditions have been
satisfied. Secondly, if the powers are entrusted to a constitutional authority for achieving a
particular purpose and if the concerned authority under the guise of attaining the said purpose, uses
the powers to attain an impermissible object, such use of power cannot be questioned. We have
not been pointed out any authority is support of these propositions. We also find that many of the
parameters of judicial review developed in the field of administrative law are not antithetical to
the field of constitutional law, and they can equally apply to the domain covered by the
constitutional law. That is also true of the doctrine of proportionality.
4. We may now examine the principles of judicial review evolved in the field of administrative
law. As has been stated by Lord Brightman in Chief Constable of the North Wales Police v. Evans
[1982] 3 All ER 141, "judicial review, as the words imply, is not an appeal from a decision, but a
review of the manner in which the decision was made". In other words, judicial review is
concerned with reviewing not the merits of the decision but the decision-making process itself.
Lord Diplock in Council of Civil Service Unions v. Minister for the Civil Service (1985) AC 374
at 408, has enunciated three heads of grounds upon which administrative action is subject to control
by judicial review, viz., (i) illegality, (ii) irrationality and (iii) procedural impropriety. He has also
stated there that the three grounds evolved till then did not rule out that "further development on a
case by case basis may not in course of time add further grounds" and has added that "principle of
proportionality" which is recognised in the administrative law by several members of European
Economic Community may be a possible ground for judicial review for adoption in the future. It
may be stated here that we have already adopted the said ground both statutorily and judicially in
our labour and service jurisprudence. Lord Diplock has explained the three heads of grounds. By
"illegality" he means that the decision-maker must understand correctly that law that regulates its
decision-making power and must give effect to it, and whether he has or has not, is a justiciable
question. By "irrationality" he means unreasonableness. A decision may be so outrageous or in
defiance of logic or of accepted moral standards that no sensible person who had applied his mind
to the question to be decided, could have arrived at it, and it is for the judges to decide whether a
decision falls in the said category. By "procedural impropriety" he means not only failure to
observe the basic rules of natural justice or failure to act with procedural fairness, but also failure
to observe procedural rules that are expressly laid down in the legislative instrument by which the
Tribunal's jurisdiction is conferred even where such failure does not involve any denial of natural
justice. Where the decision is one which does not alter rights or obligations enforceable in private
law, but only deprives a person of legitimate expectations, "procedural impropriety" will normally
provide the only ground on which the decision is open to judicial review.

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It was observed by Donaldson LJ in R. v. Crown Court at Carlisle, exp Marcus-Moore [1981]
Times, 26 October, DC, that judicial review was capable of being extended to meet changing
circumstances, but not to the extent that it became something different from review by developing
an appellate nature. The purpose of the remedy of judicial review is to ensure that the individual
is given fair treatment to substitute the opinion of the judiciary or of individual judges for that of
the authority constituted by law to decide the matters in issue. In R. v. Panel on Take-overs and
Mergers, exp Guinness plc (1987) QB 815 at 842, he referred to the judicial review jurisdiction as
being supervisory or as 'longstep' jurisdiction. He observed that unless that restriction on the power
of the Court is observed, the Court will under the guise of preventing the abuse of power be itself
guilty of usurping power. That is so whether or not there is a right of appeal against the decision
on the merits. The duty of the court is to confine itself to the question of legality. Its concern is
with whether a decision-making authority exceeded its powers, committed an error of law,
committed a breach of the rules of natural justice, reached a decision which no reasonable tribunal
could have reached or abused its powers.

Lord Roskil in Council of Civil Service Unions v. Minister for the Civil Service (1985) AC 374
at 414, opined that the phrase "principles of natural justice" "be better replaced by speaking of a
duty to act fairly....It is not for the courts to determine whether a particular policy or particular
decisions taken in fulfilment of that policy are fair. They are only concerned with the manner in
which those decisions have been taken and the extent of the duty to act fairly will vary greatly
from case to case...Many features will come into play including the nature of the decision and the
relationship of those involved on either side before the decision was taken."

1.2 Classification of Administrative Action

[Read this entry from Halsbury’s Laws of India on classification of administrative action]

Just as the government of a country is divisible into three functional components, that is,
legislative, judicial and executive, so are the powers conferred on the administration which are
classified into: (1) power to legislate which in administrative law parlance is known as delegated
legislation; (2) power to adjudicate which is generally characterised as quasi-judicial or
adjudicative power;and (3) administrative power which is non-legislative and non-adjudicative in
nature.

Although making of such a characterisation of functions of the administration is, in practice,

extremely difficult, and although it seems artificial at times to make any such classification, yet,
the present-day corpus of administrative law is organised around the three-fold classification of
functions of the administration. Each of these three types of functions have its own incidents which
differentiate it from the other two. For example, distinguishing legislative function, on the one
hand, from administrative/quasi-judicial function, on the other hand, assumes practical
significance in administrative law, inter alia, in the following respects:

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(a) Publication: A legislative order needs to be published in the official gazette because it is of
general nature and applies to many persons and hence it should be widely known. On the other
hand, a quasi-judicial or an administrative order need not be published as it applies to a specific
person or a few persons and needs to be known only to them.
(b) Procedure: Differentiation in the nature of functions lead to differentiation in the procedure to
be followed by the administration. For example, while discharging a quasi-judicial or adjudicative
function, the concerned authority must act according to the principles of natural justice even
though the relevant statute under which the authority is acting may not prescribe any such
procedure. In case the function being exercised is regarded as legislative, the authority does not
have to act in accordance with the principles of natural justice. In such a case, the concerned body
is required to follow only such procedure, if any, as may have been prescribed in the relevant
statute, there being no implied obligatory procedural norms required to be followed in such a case.
(c) Judicial Review: The courts apply different norms of judicial control depending upon the
nature of the power. The scope of judicial control is narrower in the case of a legislative function
than in the case of an administrative function, and the courts exercise the broadest review power
in the case of an adjudicatory function discharged by an authority. For example, while mala fides
may be a ground to challenge an administrative action, it is not yet definite whether the same
ground may be pleaded to challenge a legislative order. Whereas denial of natural justice may lead
to the invalidation of an adjudicatory order, it is not so in this case a legislative order.

1.3 Rule of Law (Why? What is?)

[Read this extract from H. R. Khanna, Rule of Law]

“Ever since the beginning of civilisation, two conflicting viewpoints, rule of men or rule of law,
have competed for acceptance. Although each school of thought has not lacked in its votaries, in
the aggregate the thinking has been in favour of the rule of law. On occasions we have slipped
back into government by will only to return again sadder and wiser to the rule of law when hard
facts of human nature demonstrated the selfishness and egotism of man and the truth of the dictum
that power corrupts and absolute power corrupts absolutely. Rule of law is now the accepted norm
in all civilised societies. Even if there have been deviations from the rule of law, such deviations
have been covert and disguised, for no government in a civilised country is prepared to accept the
ignominy of governing without the rule of law.

The content of rule of law varies from country to country, but everywhere it is identified with the
liberty of the individual. It seeks to strike a balance between the opposing notions of individual
liberty and public order. The question of reconciling individual rights with the requirements of
public interest has always posed a vexed problem. Such reconciling and harmonising can be

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attained by adherence to the rule of law and by the existence of independent courts which can hold
the balance between the citizen and the State and compel both to conform to law…………………”

“One vital index of the rule of law is that no one shall be deprived of his life or liberty without
the authority of law. This indeed can be regarded as the touchstone of the rule of law.”

“If there are three prime requisites for the rules of law, they are a strong Bar, an independent
judiciary and an enlightened public opinion.”

“Rule of law does not depend merely upon the courts and the law enforcement agencies. Rule of
law needs a general climate of order and discipline. It postulates an attitude of mind according to
which the bulk of population is inclined to obey the law and act in accordance with it irrespective
of the fact whether the law enforcement agencies are on the watch.”

Dicey and RoL

[Read the following extract from UK Parliament report on rule of law, particularly Lord Bingham’s
exposition]

One short expression of the concept is that provided by Lord Denning in Gouriet: “Be you ever so
high, the law is above you.”
Box 1: Suggested definitions of “the rule of law”

Rt Hon Dominic Grieve KC, Attorney General 2010–14:

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 “the system of rules that we have in our country to ensure that the decisions we make and the
way the Executive and, ultimately, individuals, organisations and institutions behave are subject
to the law—both our own domestic law and international law—and that the processes by which
the law can be applied work.48
Rt Hon David Gauke, Lord Chancellor 2018–19:
“the … sense that the law applies equally to everyone, that no one is above the law and, in
particular, that the Government must comply with the law.”49
Lord Keen of Elie KC, Advocate General for Scotland 2015–20:
“that all institutions and parties should be equal before the law and subject to the law, that the
law should be publicly available, and they should be capable of ascertaining what their rights
and obligations are thereunder … It extends not just to domestic law but to the sphere of
international law.”50
Lord Mackay of Clashfern, Lord Advocate 1979–84, Lord of Appeal in Ordinary 1985–87, Lord
Chancellor 1987–97:
“if an Act applies to a person, in the circumstances that prevail he or she is obliged to follow
that rule, whatever it is, but if there is no such rule the person is free to do what he or she
likes.”51
Lord Thomas of Cwmgiedd, Lord Chief Justice of England and Wales 2013–17:
“fundamental to the rule of law is the complete constitutional independence of the judiciary.”52

Lord Bingham’s definition

In a 2006 lecture, prompted by the reference to the rule of law in the 2005 Act, Lord Bingham
sought to define the concept, while acknowledging that “the meaning of the concept has to some
extent evolved over time and is no doubt likely to continue to do so.”53 His formulation was that:
“all persons and authorities within the state, whether public or private, should be bound by and
entitled to the benefit of laws publicly and prospectively promulgated and publicly administered
in the courts.”54
38.Lord Bingham expanded on this definition with eight principles, which he discussed in greater
length in his subsequent book, The Rule of Law.55
Box 2: Lord Bingham’s eight principles

1.The accessibility of the law: the law must be accessible and so far as possible intelligible, clear
and predictable.
2.Law not discretion: questions of legal right and liability should ordinarily be resolved by
application of the law and not the exercise of discretion.
3.Equality before the law: the laws of the land should apply equally to all, save to the extent that
objective differences justify differentiation.

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 4.The exercise of power: ministers 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.
5.Human rights: the law must afford adequate protection of fundamental human rights.
6.Dispute resolution: means must be provided for resolving, without prohibitive cost or
inordinate delay, bona fide civil disputes which the parties themselves are unable to resolve.
7.A fair trial: adjudicative procedures provided by the state should be fair.
8.The rule of law in the international legal order: the rule of law requires compliance by the state
with its obligations in international law as in national law.

Principles 3 and 5 in particular point to an important element of the rule of law: that it is not simply
rule by law. The law itself must conform with a fundamental concept of justice. As Lord Bingham
acknowledged, it would be difficult to regard plainly unjust actions, even in accordance with
“detailed laws duly enacted and scrupulously observed” as within the rule of law.
1.4 Judicial Review of administrative discretion

[Read the extract from a 2023 decision of SC (Amarendra Pandey v. UoI).]

“Where an Act or the statutory rules framed thereunder left an action dependent upon the opinion
of the authority concerned, by some such expression as ‘is satisfied’ or ‘is of the opinion’ or ‘if it
has reason to believe’ or ‘if it considered necessary’, the opinion of the authority is conclusive,
(a) if the procedure prescribed by the Act or rules for formation of the opinion was duly
followed, (b) if the authority acted bona fide, (c) if the authority itself formed the opinion and did
not borrow the opinion of somebody else and (d) if the authority did not proceed on a
fundamental misconception of the law and the matter in regard to which the opinion had to be
formed.
29. The action based on the subjective opinion or satisfaction, in our opinion, can judicially be
reviewed first to find out the existence of the facts or circumstances on the basis of which the
authority is alleged to have formed the opinion. It is true that ordinarily the court should not
inquire into the correctness or otherwise of the facts found except in a case where it is alleged
that the facts which have been found existing were not supported by any evidence at all or that
the finding in regard to circumstances or material is so perverse that no reasonable man would
say that the facts and circumstances exist. The courts will not readily defer to the conclusiveness
of the authority’s opinion as to the existence of matter of law or fact upon which the validity of
the exercise of the power is predicated.
30. The doctrine of reasonableness thus may be invoked. Where there are no reasonable grounds
for the formation of the authority’s opinion, judicial review in such a case is permissible. [See
Director of Public Prosecutions v. Head, (1959) AC 83 (Lord Denning).
31. When we say that where the circumstances or material or state of affairs does not at all exist
to form an opinion and the action based on such opinion can be quashed by the courts, we mean
that in effect there is no evidence whatsoever to form or support the opinion. The distinction

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between insufficiency or inadequacy of evidence and no evidence must of course be borne in
mind. A finding based on no evidence as opposed to a finding which is merely against the weight
of the evidence is an abuse of the power which courts naturally are loath to tolerate. Whether or
not there is evidence to support a particular decision has always been considered as a question of
law. [See Reg. v. Governor of Brixton Prison, Armah, Ex Parte, (1966) 3 WLR 828 at p. 841].
32. It is in such a case that it is said that the authority would be deemed to have not applied its
mind or it did not honestly form its opinion. The same conclusion is drawn when opinion is
based on irrelevant matter. [See Rasbihari v. State of Orissa, AIR 1969 SC 1081].
33. In the case of Rohtas Industries Ltd. v. S.D. Agarwal and another, AIR 1969 SC 707, it was
held that the existence of circumstances is a condition precedent to form an opinion by the
Government. The same view was earlier expressed in the case of Barium Chemicals Ltd. and
another v. Company Law Board and others, AIR 1967 SC 295.
34. Secondly, the court can inquire whether the facts and circumstances so found to exist have a
reasonable nexus with the purpose for which the power is to be exercised. In other words, if an
inference from facts does not logically accord with and flow from them, the Courts can interfere
treating them as an error of law. [See Bean v. Doncaster Amalgamated Collieries, (1944) 2 All
ER 279 at p. 284]. Thus, this Court can see whether on the basis of the facts and circumstances
found, any reasonable man can say that an opinion as is formed can be formed by a reasonable
man. That would be a question of law to be determined by the Court. [See Farmer v. Cotton’s
Trustees, 1915 AC 922]. Their Lordships observed:
“……….. in my humble judgment where all the material facts are fully found, and the only
question is whether the facts are such as to bring the case within the provisions properly
construed of some statutory enactment, the question is one of law only.” [See also Muthu
Gounder v. Government of Madras, (1969) 82 Mad LW 1].
35. Thirdly, this Court can interfere if the constitutional or statutory term essential for the
exercise of the power has either been misapplied or misinterpreted. The Courts have always
equated the jurisdictional review with the review for error of law and have shown their readiness
to quash an order if the meaning of the constitutional or statutory term has been misconstrued or
misapplied. [See Iveagh (Earl of) v. Minister of Housing and Local Govt., (1962) 2 QB 147;
Iveagh (Earl of) v. Minister of Housing and Local Govt. (1964) 1 AB 395].
36. Fourthly, it is permissible to interfere in a case where the power is exercised for improper
purpose. If a power granted for one purpose is exercised for a different purpose, then it will be
deemed that the power has not been validly exercised. If the power in this case is found to have
not been exercised genuinely for the purpose of taking immediate action but has been used only
to avoid embarrassment or wreck personal vengeance, then the power will be deemed to have
been exercised improperly. [See Natesa Asari v. State of Madras, AIR 1954 Mad 481].
37. Fifthly, the grounds which are relevant for the purpose for which the power can be exercised
have not been considered or grounds which are not relevant and yet are considered and an order
is based on such grounds, then the order can be attacked as invalid and illegal. In this connection,
reference may be made to Ram Manohar v. State of Bihar, AIR 1966 SC 740; Dwarka Das v.
State of J. and K., AIR 1957 SC 164 at p. 168 and Motilall v. State of Bihar, AIR 1968 SC 1509.
On the same principle, the administrative action will be invalidated if it can be established that
the authority was satisfied on the wrong question: [See (1967) 1 AC 13].

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 Unit II – Delegated Legislation

Outcomes:

What is delegated legislation?

Different types of delegation.

Critical analysis of judicial control of delegated legislation in India.

Usually, the legislature enacts a law covering only the general principles and policies relating to
the subject matter in question, and confers rule-making power on the government, or on some
administrative agency. The technique of delegated legislation is so extensively resorted to in
modern times as a process of government that there is not a single statute passed by the legislature
today which does not delegate some power of legislation to the executive.
In no democratic country presently does the legislature monopolise the whole of the legislative
power; it shares this power with the government and other administrative agencies. The term
‘delegated legislation’ is used in two different senses: (1) the exercise by a subordinate agency of
the legislative power delegated to it by the legislature, or (2) the subsidiary rules themselves which
are made by the subordinate agency in pursuance of the power as mentioned in (1).
An administrative lawyer is more interested in the ‘technique’, that is, the former rather than the
latter. In India, the institution of delegated legislation is as pervasive as in any other democratic
country. The term employed is in India ‘subordinate legislation’; it conveys the idea that the
authority making the legislation is subordinate to the legislature. The technique of delegated
legislation is very extensively used. Delegated legislation is designated by several names, such as,
rules, regulations, bye-laws, orders, etc., though the term ‘rules’ is more commonly employed to
denote the delegated legislation churned out by government departments. The terms ‘regulations’
and ‘bye-laws’ are usually used to denote the legislation framed by statutory corporations under
delegated legislative power. Generally, in respect of these corporations there are two levels of
delegated legislation: the government itself has power to promulgate ‘rules’ and, accordingly, to
distinguish the governmentmade rules from what the corporation itself may make, a different
terminology (regulations) is used for the latter. Sometimes, the term ‘order’ is used to designate
delegated legislation.

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 DELEGATED LEGISLATION
by
P.B. Mukharji*
Controversy
Delegated Legislation is an expression which covers a multitude of confusions. It is an excuse
for the legislators, a shield for the administrators and a provocation for the Constitutional purists.
It is easy to take sides on the controversy over delegated legislation. It is praised as a necessity and
felt as inevitable in a world where social, economic, technological, psychological and
administrative speed outstrips the spacious and placid traditional legislative ideals and processes.
It is criticised as an abdication of power by legislators and an escape from duty imposed on them
by the voters of democracy. In England the king lost legislative power at Runnymede and
Parliament lost legislative power at the stampede that followed since to provide Government for
the country through administration and bureaucracy.
Delegated Legislation is often mistaken as a modern problem. It is not. It is a historic question
which troubled and agitated men's minds very soon after the beginning of what we call law and
legal administration. It is not wholly a problem of democracy. It existed and exists as a problem in
every context of Government, whatever be its ideals or its policies. Its forms have changed; its
repurcussions have changed; but its core remains. A brief history may set the problem in its proper
perspective,
History
Greek political theory and legal concepts as expounded by Plato and Aristotle did not face in
the small City States the complex problems of delegated legislation in the modern age although
they did have occasion to notice whether the representative was limited or not in his powers of
representation. With the Romans, delegation was an acknowledged problem and the Roman
concept of “Delegatus non potest delagare” was born of many tears. Its echoes still resound in the
modern decisions of the American, Canadian, Australian and Indian Supreme Courts. Historically
speaking, Lord Hewart is not the first modern water-mark in the tide of this controversy. Its modern
origin lies in opposition to centralisation. Bentham and his

Page: 466

disciple Chadwick were pleading for devolution, so that subordinate bodies could be given greater
power to legislate. The reason why they chose to advocate that cause was that Local Self-
Government provided the best nursing ground for training in democracy. Fear of too much
centralisation was then the spur for delegated legislation. Local Self-Government and municipal
administration provided the first occasion for delegation of legislative powers and legislative
functions. The atmosphere was considerably helped by the Pluralists and the Syndicalists with
their particular ideas of self-sufficient government and organisation for different groups in society.
Imperalism and colonialism of the 18th and 19th centuries further advanced the cause of
delegation. The next step was the introduction of the principles of delegation, to courts and judicial
procedure. The British Judicature Acts are important land-marks in the history of delegated

15
legislation. Then again, the process of delegation was accelerated by the rationalisation of the
Royal prerogatives, the Crown Writs, Orders in Council and departmental Regulations. All this is
19th century-history. The 20th century legal outlook opened with shining faith in parliamentary
sovereignty in legislation but before half the century was out the world was engulfed in two Wars
whose impact on law, procedure and above all the legal instincts, so laboriously built by the
Greeks, so scientifically enhanced by the Romans, and so effectively and humanistically
administered by the British Jurisprudence, almost seemed to challenge and threaten the work of
untold centuries. A whole age of jurisprudence and political philosophy seemed to change
overnight. Parliamentary Sovereignty tends to be overthrown in favour of executive sovereignty.
Austin's basic assumptions stand challenged by Goodhart, Lock's primary categories of Separation
appear powerless to separate and even practical Bentham appears impracticable.
The two World Wars are responsible for an unprecedented increase of subordinate and
delegated legislation on the ground of emergency. These wars demanded a special speed which
was intolerant of any time-lag between the decision and action and therefore all existing legal
procedures and legal machinery were thrown out of gear. The tempting solution was found in
delegating the bald decision or still balder objective to be executed by agencies who were charged
with carrying them into effect. Emergency became a concept in jurisprudence and emergency
legislation became a normal feature of law-making. In this atmosphere and speed of emergency
the frontiers between the principles and procedures became blurred. They first came as Statutory
Rules and Orders blessed by the English Rules Publication Act of 1893 and later acquired the more
dignified

Page: 467

designation of Statutory Instruments under the English Statutory Instruments Act of 1946.
Parliament takes steps
The Donoughmore-Scott Committee proposed setting up of two Standing Committees in each
House of British Parliament to check and control this tidal flood of delegated legislation. One was
to examine every Bill with the object of drawing attention to any extraordinary proposal to delegate
legislative authority. The other was to scrutinise the Rules, Regulations and Orders that flowed
from the exercise of such authority. The British Scrutinising Committee makes a general report
usually once in every session of Parliament on technical aspects of delegation. Although the British
Committee has a reputation of acting with independence and has established the commendable
convention that its Chairman is always a member of the opposition, its influence is not what was
expected primarily because of the mechanics of parliamentary procedure by which the members
of the House usually table motions for annulment long before the Committee makes the report and
partly because in most cases the reasons for their challenge are reasons of policy and merits which
the Committee is debarred from considering.
There is also a Committee on Subordinate Legislation in the Indian House of the People. The
first report of that Committee made two useful recommendations, namely:—
(1) Bills containing proposals for delegation of legislative powers should invariably be
accompanied by a memorandum containing the details and scope of such proposals;

16
 (2) Uniformity should be secured in the provisions delegating legislative powers in various
Acts.
The Speaker of the Indian Parliament followed the British practice of appointing a member of the
opposition as Chairman of the Committee on Subordinate Legislation, In a Memorandum by the
Speaker of the House of People in 1950 it was observed:—
“At the present time parliamentary control over delegated legislation is defective for two
reasons:—
(1) Legislative powers are freely delegated by Parliament without the members of the two
Houses fully realising what is being done;
(2) Although many of the regulations made in pursuance of those powers are required to
be laid down before both the Houses and in fact they are so laid

Page: 468

there is no automatic machinery for the effective scrutiny on behalf of Parliament as a

whole, and the quantity and complexity are such that it is no longer possible to rely on
such scrutiny.”
Types of Delegation
The nature and scope of delegation in different statutes are varied and manifold. The language
in which the power of delegation is phrased is equally varied. Attempt to seek a pattern does not
always succeed. A study of certain samples, however, is useful to indicate the basic and general
trends. They may be classified particularly under the following heads:—
(1) Simple statutory provision where rule-making power is delegated either to the Government
as such or to particular officers, high or low, for carrying out the purposes of the Act. This
rule-making power appears in sections of the statutes which first give general power to
make rules to carry out the Act followed by certain specific powers enumerated on specific
branches of administration covered by the statute. Some statutes contain the express
provision that the Rules framed thereunder are to form part of the Act itself such as,
Sections 121 & 131 of the Civil Procedure Code, Section 642(2) of the Companies Act,
1956, Section 78 of the Indian Forest Act, 1927, Section 52 of the Indian Extradition Act,
1903, Section 58 of the Damodar Valley Corporation Act, 1948, etc.
(2) Sometimes the statute lays down that the rules have to be published in the Official Gazette
before they come into operation. Sec. 23 of the General Clauses Act mentions the
consequences where previous publication is required by statute.1

Page: 469

17
 (3) Very few statutes expressly make any provision how the rules are to be drafted, what
procedures are to be followed and what affected groups should be consulted before
finalising these rules.
(4) The well-known procedure of laying the rules on the table of Parliament or Legislature is
also provided in some statutes. Some statutes provide that the rules become law on
notification but there are others (which expressly say that they are to be placed before
Parliament which will have the right to modify, such as, Sec. ??? of the National Highways
Act, 1956, Sec. 17(3) of the Standards of Rates and Wages Act, 1956 or Sec. 13(2) of the
Central Sales Tax Act, 1956, etc.
(5) Another type of delegation occurs where there is legislation by schedule or appendix giving
power to add to the appendix or the schedule given in the Act. This is what is commonly
known as Skeleton Legislation. This can be found in such statutes as the Minimum Wages
Act, 1948 or Employee's Provident Fund Act, 1952.
(6) A far-reaching provision for delegation is sometimes provided in the statute delegating
power to exempt or include subjects for the Act.
(7) A different type of delegation occurs where the statute provides that the Central
Government or State Govern ment would have powers to give directions for the proper
working of the Act.
Three Stages of Delegation
Delegation requires careful examination at three fundamental stages of the law. The first stage
is when the Bill proposes delegation of powers to administrative and executive authorities; at this
stage the draftsman plays a very responsible part. His draft becomes the

Page: 470

basis of the Act. Two forces operate on him to produce the draft. One is extraneous to him and the
other is his own. He should receive intelligible directions from his masters, parliamentarians and
legislators, on the question, what and how much is to be delegated. The other is his own powers
of assimilation of these directions and formulation of them in reasonably careful and unambiguous
language. Improvement can be made on the present procedure available on both the fronts. Mr.
R.C.S. Sarkar, Joint Secretary and Draftsman of the Ministry of Law in his paper on “Legislation
and the Draftsman” pleads for a little fuller Cabinet Summary than at present forthcoming and
wider use of Office Memorandum where the administrative officers work out the details before
the Draft Bill is prepared. The second stage is reached when after the Act is passed, rules are
framed to work out the delegation. At this stage, it is necessary to be quite clear—firstly, who
should be charged with the responsibility for framing these rules and secondly, the procedure
which should be followed in devising a reasonable set of rules consistent with the Act and with
due regard to affected groups. The third stage covers the publicity of these rules with invitation for
suggestions and objections both before making them and after making them to leave enough room
for all foreseeable corrections to be made prior to the time these Rules acquire finality. The
mechanics and control of delegation have to cover all these three different stages.

18
 Statutory illustrations of delegated legislation
The statutory position in India on delegation can be profitably examined and practically
illustrated by taking some specific forms of delegation. Practical research work on delegated
legislation with reference to actual instances and forms of delegation resorted to by Indian Statutes
has hardly been undertaken in India. No intensive and practical study appears to have been made.
Cases do come up at random before the courts but then no systematic efforts have been made to
collect even the few and infrequent judicial decisions on the point and to present them in any
methodical form. If this paper serves to indicate even a beginning of what may be, a very practical,
useful and promising research project, then it will have more than served its purpose.
Factories Act, 1943—a typical example
I shall begin by examining one particular Statute as an illustration to exemplify how delegation
works in India. The Statute which I propose to examine is the Factories Act, 1948. It

Page: 471

typifies many forms of delegated legislation in use in modern legislative methods.

First, there is the general power to make rules under Sec. 112 of the Factories Act. It is phrased
in general language stating that the State Government may make rules providing for any “matter”
which under any of the provisions of the Act, is to be or may be prescribed or which may be
considered “expedient” in order to give effect to the “purpose” of the Act. Although this delegation
of powers to make rules is wide, its limitation appears to be (1) first, with regard to subject which
must be a “matter” under or for the purposes of the Act. And (2) secondly, with regard to object
which must be to give effect to the “purpose” of the Act. This delegation, however, docs not specify
who under the State Government will make the rules. This is impersonal delegation to the
executive Government.
Secondly, there is another type of delegation in this Act which delegates power to the Central
Government to give “direction” to the State Government with regard to carrying into execution of
the provisions of the Act under Sec. 113 of the Statute. Powers to the Executive Government to
give directions are becoming a very common type of delegation in India. The nature and character
of this delegation to give “direction” have not yet been sufficiently investigated and examined by
the courts. In a recent decision of the Supreme Court2 on the petition of Raman and Raman Ltd.,
under the Motor Vehicles Act, containing similar provision for giving direction, the Supreme Court
is reported to have said that these “directions” are in their nature executive and do not acquire the
character of law. Many problems arise on this form of delegation. These directions may be
executive but the question remains how far they bind the State Government as part of the law under
the Statute. For instance, under Sections 112 and 113 of the Factories Act, 1948, can these
“directions” issued by the Central Government be regarded as “expedient” under Sec. 112 and
embodied in the rules framed accordingly by the State Government When so done, it is submitted
they acquire the character and status of law.
Thirdly, Sec. 115 of the Factories Act, provides for the publication of rules by saying in effect
that all rules made under this Act shall be published in the Official Gazette and will not take effect

19
before three months from the date on which the draft of the proposed rules is published. This period
of three months may be presumed

Page: 472

to be a period of checking the reactions and objections, if any, to the proposed rules before they
come into effect. The idea may also be that this period of three months is given only as a period of
grace to factories to adjust themselves to the operation of the new rules and not with a view to
altering the rules or revising them after checking any reactions or objections to such rules during
this period. The Statute does not make this clear, although reference to Sec. 23 of the General
Clauses Act in Sec. 115 of the Factories Act appears to imply the right of objection and
consideration of such objection.
The fourth type of delegation which occurs under the Factories Act is grant of power to exempt,
for instance, under Sec. 50 of the Factories Act, 1948. Under this form of delegation the State
Government may make rules exempting a factory or class or description of factory from complying
with the Statutory provisions relating to welfare facilities under Chapter 5 of the Act. The only
limitation of this power to exempt is that it is subject to compliance with such alternative
arrangement for the welfare of the workers as may be prescribed. Again, in Section 64 of the Act,
the State Government is given the power to exempt persons from the operation of this Section of
the Act relating to the working hours of adults under Chapter 6 of the Statute. Under this Section,
the State Government may make rules defining such persons. The limitations of this power provide
that the exempted persons must be those who hold position of supervision or management or are
employed in confidential position in a factory. Again, in Sec. 64(2) of the Act, powers are given
to the State Government to make rules in respect of adult workers in a factory providing for the
exemption to such extent and to such condition as may be prescribed. The nature of, or the
limitation imposed on, these powers is with respect to the quality of work, e.g., workers on urgent
repairs or workers engaged in work in another preparatory or complimentary work or works which
are technical or intermittent or workers engaged in making or supplying articles of prime necessity.
The exemption offered under Sec. 64(2) of the Act is, however, only with respect to specific
Sections 51, 52, 53, 54, 55 and 56 of the Statute and are also conditioned by the upper limit as
provided in Sub-section 4 relating to hours of work. A wider power of exemption is conferred
under Section 65 of the Act by which the State Government may by written order relax or modify
the entire Section 65 of the Act relating to periods and notices of the works for the adult. This
power to relax or to modify the Statute is limited by the nature of work or “other circumstances”.
But the extent of the power to relax or modify is, in a sense, unlimited,

Page: 473

because it provides that such relaxation or modification may be made “to such extent and in such
manner as it may think fit and subject to such condition as it may deem expedient to ensure control
of periods of work”. The “extent”, the “manner”, the “condition” and “other circumstances” are
all unspecified and vague.

20
 There is a fifth type of delegation under the Factories Act, 1948, which can be illustrated by
Sections 85 & 86 of the Statute. It concerns the power to apply the whole Statute to certain
premises and the power to exempt public institutions. Under this power the State Government by
notification in the Official Gazette may declare that all or any of the provisions of the Act shall
apply to any place where a manufacturing process is carried on with or without the aid of power
in spite of the fact that such places do not come within the definition of Factory as provided in
Section 2(n) of the Act. It says that after the place is so declared it shall be deemed a factory for
the purpose of the Act and the owner shall be deemed to be the occupier and any person working
therein a worker. Indeed, this is a delegation of great power. In fact, it means the delegation of the
power in respect of a particular place. The only guide or standard laid down by the Statute for
exercise of this extensive power of delegation is that the place must be one where a manufacturing
process is carried on or is ordinarily carried on with or without the aid of power. But no other
conditions or guides or standards are laid down. A place working with two workers with a small
motor might be faced with the entire obligation and responsibility imposed by the Act; whereas, a
place larger than that may be exempted. This type of delegation is of the same kind that was upheld
in the leading case of Queen v. Burah3 in a different context. The power to exempt public
institution under Sec. 86 of the Act is only limited where the purpose is for education, training or
reformation. In such case, the workshop where the manufacturing process is carried on and which
is attached to a public institution maintained for these purposes, may be exempted from the whole
or any part of the Statute. The words may be regarded as too general, specially the word “trained”.
Five Different Types of Delegation
This particular study of the Factories Act, 1948, reveals and illustrates at least five different
types of delegation under the Statute.
The delegate always appears to be the State Government. Delegation does not specify the person
or persons on behalf of the

Page: 474

State Government who will act nor does it specify the procedure which he is to follow, in so acting.
Delegation by the use of the words “the State Government by notification in the Official Gazette”
may mean anyone including any subordinate officers. These subordinate officers mean
undisclosed responsibility. What, if any, sufficient cheek is imposed on such subordinate officers
is not known. No doubt, the State Government as such is a responsible institution. But who
discharges these duties on behalf of the responsible Government, is a crucial question. Very often
in the routine administration of the Government some subordinate officers and even clerks put up
the notes which by sheer administrative routine pass as rules although they may have, as a mere
matter of form, passed through the whole hierarchy of the administration. This is what 1 call
impersonal delegation and is largely responsible for strange rules not always consistent with the
Act or its spirit and sometimes impracticable causing avoidable hardship. I suggest that wherever
there is impersonl delegation of this nature the rank or class of officers who are to act as the
delegate should be specified.
Secondly, directive delegation by which the Central Government is given statutory Powers to
issue direction to the State Government appears to be both illogical or irrelevant in a statute. I

21
suggest that this type of delegation should be discontinued. It is open to many criticisms. In the
first place, in the Constitutional structure of India with its division of legislative, lists between the
State and the Centre, it does not seem to be necessary, where the statute deals with Parliamentary
subjects, that the Central Government should take legislative sanction for issuing executive
direction to the State Government. Either the power is there or it is not. In a centrally administered
subject, ordinary administrative and executive direction from the Centre to the State for proper
administration must always be implied as a pattern of executive Government for the proper
working of the Act throughout the country. If the subject is not within the competence of
Parliament, then of course, no question arises, because the statute itself or the particular statutory
provision will be bad on the ground of being ultra vires the Constitution. As the executive
directions may so alter the nature and basis of the administration, without any provision for their
publicity to inform the affected people about such directions they become worst types of
delegation. People do not know what are the executive directions? Nor do they know who frames
these executive directions? Nor do they know how these executive directions come to be made? It
is suggested that this type of delegation be altogether abolished from the Statute.

Page: 475

It is sometime said in favour of this type of executive direction that they tend to bring uniformity
of administration in the different States in India. Assuming it does, then the delegation suggested
for this purpose is that in Parliamentary Acts with Central subjects, the power of delegation should
be reserved only to the Central Government and not to the State Government with the provision,
if necessary, that the State may have limited powers to deviate from such directions only in case
of specified variations in local conditions. Similarly, in the State Act with State subjects, this power
of delegation should be reserved only to the State Government with similar provisions to the
Central Government to exercise limited powers of delegation on [joints not covered by the State
delegation.
Thirdly, the power of delegation to apply or suspend or exempt persons or subjects or area from
the operation of a Statute should be discontinued. Its sole justification is that for some special
reasons it is necessary sometimes as a practical measure. This justification does not stand close
scrutiny. This is an extensive power and in fact, it is not only legislation without a Legislature, but
is worse. It means that if the basic assumption of making exception is admitted originally, then the
subsequent application of the Act may also have to be qualified or modified. But who is to judge
this modification. The legislator gets no chance. The delegate uses his discretion or his own
procedure and his own judgment of the situation unaided by any standards except ad hoc ones that
he may hit upon. It is indefensible in a Constitutional democracy. I suggest thai instead of
delegating the whole power of legislation to a delegate, Parliament and the State Legislatures
should pass in every such case a short amending Act extending the statute to a particular area or
person or subject or exempting the same as the case may be. This will respect local condition. At
the same time, it will give the legislator concerned a chance to see whether the Act should be
applied or suspended or modified and if so, on what conditions.
Fourthly, it is difficult to appreciate the practical value of the type of delegation which attempts
to pacify parliamentary and legislative conscience by providing for the procedure of laying the
rules on the Table. To my knowledge and information, no such rules laid on the Table were ever

22
taken up either in Parliament or State Legislature for discussion, criticism, correction or
modification. Very often the rules arc ponderous; the legislators have no time to look into them;
the technicalities involved in the rules are forbidding to most. The result is nobody cares whether
the rules are in fact on the Table or not. In the legislative history of the British House

Page: 476

of Commons, it so happened that such a procedure for laying the rules on the Table was not
observed for more than two years and thus, committing a breach of the statutory direction to lay
on the Table within a specified time. The members of Parliament never even noticed that fact with
the result that an Indemnity Act had to be passed three years after. Dr. Allen quotes the incident in
his book “Law and Orders” on the National Fire Service Regulation under the Fire Service
Emergency Provisions Act, 1941. This situation is also not unknown in Parliament in India where
the Parliamentary Committee of Subordinate Legislation has reported that there has been unusual
delay of even two years in laying the rules on the Table and in its 2nd Report described it as a
“disquieting feature”. The Parliamentary and the State statutes are not at all clear in India as to
what happens if the rules are not laid on the Table. If the rules become law before they are laid on
the Table and some Statutes seem to imply that conclusion, then laying the rules on the Table
becomes a useless procedure. No Parliamentary or State procedure prescribe how the rules which
had become a part of the Act can thereafter be amended except by the process of bringing in Bill
for the amendment of the Act. Failure to lay on the Table does not make the rules void ab
initio. This is regarded as best a breach of a directory and not a mandatory provision. If the reason
for the provision for laying the rules on the Table be to put the fear of Parliament or Legislature in
the mind of the actual rule-maker then the fear is found to work more harm than good. Bad rules
can always be criticised in Parliament whether such provision is there in a Statute or not. When
they become part of the Act then a bad Act can always be amended in a sensible and democratic
Parliament whether such provision is there in a statute or not. What is not often appreciated is that
the presence of this provision for laying the rules on the Table lend to undermine the responsibility
of the rule-maker on the ground that if there be anything wrong it will be corrected by Parliament.
But as Parliament has no time it cannot take effective responsibility. The result is divided
responsibility and consequent perfuncteriness in rule-making. If complete abolition of the
procedure of laying on the Table is thought to be too radical, then the next best alternative is to
provide for an Affirmative Resolution of Parliament or State Legislature as the case may be, before
these rules become operative.
Delegation under the Minimum Wages Act
The Minimum Wages Act, 1948, is another useful example for

Page: 477

study of delegated legislation. Here, the Central Government itself retains the power of both types
of delegation—first, by the power to give directions to the State Government and secondly, by the
power of making rules under Sections 28 & 29 of the Act. Powers for exemption and exception
are also delegated to the Appropriate Government with power to provide proper conditions of such

23
exemption or exception under Sec. 26 of the Act. The special type of delegation under this Act
which requires careful analysis is that provided under Section 27 of the Statute. This Statute has a
schedule attached to it, giving a list of employments and it is in respect of the “scheduled
employment” that the Minimum Wages have to be fixed under Section 2(e) of the Act. But Section
27 gives power to the Appropriate Government to add to the schedule. Sections 3 to 10 of the Act
make provisions for fixing such minimum wages, Advisory Board and the procedure for revision
of minimum wages, and are not open to charge of unqualified and unlimited delegation. Section
27 had been the subject of a Supreme Court decision4 and is discussed later.
Delegation Under the Employees' Provident Fund Act, 1952
A typical illustration of the kind of delegation I am considering can be drawn from the
Employees' Provident Fund Act, 1952. Section 1(3) of the Act applies the Statute, in the first
instance, to all factories engaged in any industry specified in the first Schedule of the Act in which
fifty or more persons are employed but reserves the right in the Central Government to apply the
provisions of this Act to all factories employing even lesser number of persons by giving two
months notice of intention to do so by notification in the Official Gazette. The only limit upon this
power to extend the application of this Act is that it still appears to be limited to industries specified
in the first Schedule. The power to add to the first Schedule is delegated to the Central Government
by Sec. 4 of the Act, by which “the Central Government may by notification in the Official Gazette
add to the first Schedule any other industry in respect of employees whereof it is of opinion that
the Provident Fund Scheme should be framed under this Act.” In delegating this power Parliament
has not laid down any standard or guide on which such “opinion” should be based nor does it
provide whether before such opinion is formed it should hear or consult the industry proposed to
be added. The only check on this delegation is that the notification shall be laid before Parliament
as soon as may be after it is issued. But here again

Page: 478

apart from the criticisms already made of the procedure of laying before Parliament, it is clear that
this procedure is of no value in this particular case. The reason is that by Section 4 of the Act, it is
further provided that upon the notification “the industry so added shall be deemed to be an industry
specified in the first schedule for the purpose of this Act”. The result is that the moment the
notification is issued by the Central Government the addition becomes a part of the Schedule and
of the Act. Therefore, the subsequent provision that the notification should be laid before
Parliament after it is issued, does not afford any opportunity to revise it before it becomes a part
of the Statute itself. The actual framing of the Provident Fund Schemes is necessarily delegated to
the Central Government by Sec. 5 of the Act, and so also the power to add or to amend or vary
such scheme under Sec. 7 of the Act. Power is also delegated by Sec. 3 of the Act to the Central
Government by notification in the Official Gazette, to apply the Act to an establishment which has
a common Provident Fund in the Factory. The impact of the Act is on the “factory” and not on
“establishment” as such by reason of Sec. 1(3) of the Act and this delegated power under Sec. 3
of the Statute even alter this basis by extending it to an establishment.
Delegation tinder Employees' State Insurance Act

24
 Extensive powers of delegation are conferred by this Act. Sec. 87 of the Act gives power to the
Appropriate Government to exempt a factory or establishment from the operation of the Act. Now,
the only limitation with regard to such exemption is the time limit of one year and even that may
be extended. This power of exemption is said to be “subject to such conditions as may be specified
in the notification”. Nothing is said either of any standard or of any condition or of any ground for
which such exemption should be granted. The entire field is left unmarked. Nothing is said as to
who should judge and determine such conditions as are to be specified in the notification. This
exemption can be granted by notification in the Official Gazette. No procedure is prescribed as to
what is done before the exemption is granted and whether there is any scope for objection to the
exemption by any competing factory of the same kind. Under Sec. 89 of the Act such exemption
shall not be granted unless a reasonable opportunity has been given to the Corporation to make
any representation it may wish to make in regard to the proposal and such representation has been
considered by the Appropriate Government. But this provision of reasonable opportunity to the
Corporation which is the Employees' State

Page: 479

Insurance Corporation, does not mean opportunity for representation to anyone else. Similar power
of exemption is conferred by Sec. 88 of the Act by which the Appropriate Government is given
power to exempt persons or class of persons employed in the factory. Sec. 91 of the Act gives
power to the Appropriate Government to exempt, of course, with the consent of the Corporation,
and by notification in the Official Gazette, any employees or class of employees of any factory
from one or more of the provisions of the Act.
Sub-Delegation
The problem of Sub-delegation may be mentioned here briefly because this Act also contains
powers of sub-delegation in Sec. 94A of the Act by which the Corporation or its Standing
Committee is given power to delegate all or any of its powers and functions in relation to such
matters and subject to such conditions as may be specified to any officers or authorities subordinate
to the Corporation. Some statutes delegate powers to the Ministers who in turn are given the power
to Sub-delegate. Sub-delegation raises many problems of practical difficulty. An unspecified Sub-
delegate means that Parliament at the time of the passing of the Statute may not know under this
Sub-delegation who will have the virtual power of working out the Act. The actual terms of Sub-
delegation are also left vague in many instances such as in Sec. 94A of the Employees' State
Insurance Act where not only the entire power may be sub-delegated but even the conditions are
left undertermined. On the point of Sub-delegation I would suggest (1) laying down the standards
and guides, (2) limiting the content of Sub-delegation, (3) prescribing specific conditions and
occasions on which the Sub-delegate shall function and (4) whenever there is Sub-delegation the
work of the Sub-delegate must require ultimate Written Affirmation of the original delegate under
the statute.
This is a fair sample survey of delegation with reference to particular Statutes. For reasons of
space it is not possible or even perhaps necessary to multiply instances because the types of
delegation more or less follow the patterns already examined.
Delegation in Licensing Laws

25
 Licensing Laws very often typify different attempts at delegation. The Statutes which very
often come up before the courts for interpretation in India on this point are the statutes relating to
transport and motor vehicles and the statutes relating to fire arms and in respect of food supply.
Issue of licences for cars, buses and taxis and issue of

Page: 480

licences for food supply, fire arms and guns and their control, grant and refusal depend on
delegated powers.
A. Essential Supplies Act
It will be useful to preface our remarks by examining a kind of delegation which was recently
held by the Supreme Court to be void because of a provision of the Essential Supplies Act which
provided:—
“The licensing Authority may grant, refuse to grant, renew or refuse to renew a licence and
may suspend, cancel, revoke or modify any licence or any terms thereof granted by him under
the order for reasons to be recorded.”
This provision was held to be void by the Supreme Court in Dwarka Prasad
Lakshminarayan v. The Stale of Uttar Pradesh5 The Court declared this provision void by holding
that it imposed an unreasonable restriction on the fundamental right of freedom to trade guaranteed
by the Constitution. A part of its reasons is that the Licensing Authority has been given absolute
power and that mere recording of reasons was hardly an adequate safeguard. Such reasons were
only for the personal or subjective satisfaction of the Licensing Authorities and not for furnishing
any remedy to the aggrieved persons.
The point here emphasised, however, is not so much how far such a provision infringes the
fundamental right of freedom to trade but how far it is a delegation which gives absolute power.
No standards or principles are laid down in this provision for grant or refusal of licence. In fact,
this kind of unlimited power raises the crucial question of delegation. The effectiveness of the
entire Act can be displaced by the Licensing Authority acting on this uncontrolled power. The
question thus, arises here whether the Licensing Authority could be delegated such powers which
could nullify the utility of an Act.
B. Motor Vehicles Act.
The Motor Vehicles Act confers large powers of delegated legislation. Cases frequently come
up before the court under this Act on the question of refusal of the State Government to grant road
permits or restrict or control road transport. Section 43 of the Motor Vehicles Act confers power
upon the State Government by notification in the Official Gazette to prohibit or restrict throughout
the State or in any area or on any route within the State, subject to such conditions as it may think
desirable, the conveying of long distance goods traffic

Page: 481

26
generally, or of prescribed classes of goods, by private or public carriers, or fix maximum or
minimum fares or freights for stage carriages and public carriers. The delegation lays down broad
standards and useful limitations, which include the consideration of
(1) the advantages offered to the public, trade and industry by the development of motor
transport;
(2) the desirability of co-ordinating road and rail transport;
(3) the desirability of preventing the deterioration of the road system, and
(4) the desirability of preventing uneconomic competition among motor vehicles.
It also requires that before the State Government, issues the notification it should hear the
representatives of “interests affected” and should consult the State and Regional Transport
Authorities concerned. It also provides for affected interests to make representation for
cancellation or variation of the notification on specified grounds.
Sec. 47 of the Act lays down the procedure of the Regional Transport Authorities and imposes
a duty upon them in deciding to grant or refuse a stage carriage permit, to consider specified
matters which indicate the standards and guides in this respect, such as:—
(i) the interest of the public generally;
(ii) the advantages to the public of the service to be provided;
(iii) the adequacy of existing passage of transport services, the fares charged and the effect
upon those services
(iv) the benefit to particular locality;
(v) the operation by the applicant of other transport services;
(vi) in particular of unremunerative services in conjunction with remunerative services;
(vii) the condition of the roads.
It also imposes upon the Regional Transport Authorities the obligation to take into consideration,
any representations made by persons already providing road transport facilities along or near the
proposed routes or by any local authorities or police authorities or by any association interested in
the provision of road transport authorities. This is a useful provision for consultation of affected
groups. An examination of this power of delegation shows that the Statute lays down both general
standards, such as public interest and also particular standards, such as, utility of the proposed
services. Almost similar provisions are made in Sections 47 and 50 of the Act in respect of private
contract carriage permits and public carriage permits. Appeals from the order of the State and
Regional Transport Authorities

Page: 482

to the prescribed Appellate Authorities are also provided in Sections 50 and 55 of the Act. Sec. 68
provides the State Government with power to make rules for the purposes of carrying into effect
the provisions of Chapter 4 of the Act dealing with the control of transport vehicles.
27
 C Indian Arms Act
Delegation under the Indian Arms Act has very frequently come up before the courts for
criticism. Sec. 17 of the Indian Arms Act delegates power to the Central Government by
notification in the Official Gazette to make rules to determine the officers by whom, the form in
which, and the terms and conditions on and subject to which, any licence shall be granted. Now
this power does not specify the officers nor indicate the rank below which it may not be desirable
to go in this matter. The power is granted to the officers in very wide and general terms. Not only
the form is to be prepared by him but the very terms and conditions on the subject to which the
license is to be granted are to be determined by him. This power of delegation has been
unsuccessfully challenged in courts. After granting these general powers certain specific matters
are mentioned in Sec. 17 of the Act on which rules could also be made. Sec. 18 delegates power
to the officer who granted licence or to any authority to which he may be subordinate or to any
Magistrate of a District or Commissioner of Police within whose local limits of jurisdiction the
licence-holder may be found, to cancel or suspend the licence. The limitation imposed upon the
cancelling or suspending authorities is that he must record his reasons in writing and deal with the
considerations of security of the public peace to cancel or suspend such licence. There is, however,
no condition in Sec. 18 of the Act for giving any hearing to the ‘person whose licence is cancelled.
The rule-making power under Sec. 17 of the Act requires that the rules should be published and
notified in the Official Gazette. No procedure is laid down for laying these rules on the Table of
Parliament nor is there any provision for hearing before making of rules or publicising the rules
and inviting objection or criticism before they are made final.
How Courts Have Reacted to the Problem of Delegation
Reference to some judicial decisions to show how the Courts have reacted to the problem of
delegation may be useful.
In In re Delhi Laws Act,6 a reference by the President under Art. 143 of the Constitution, the
Supreme Court had occasion to consider

Page: 483

the power given to the State Governments to extend an Act with such “restrictions and
modifications” as it thought fit to Delhi or any part thereof by means of a notification in the Official
Gazette. There was divergence of views expressed by different judges on the Bench. On the main
question, that the essentials of the legislative function which means determination of legislative
policy and its formulation into a rule of conduct, there was no serious difference of opinion. On
the application of that principle to the practical question of delegation in each case, the difference
of views was obvious. Neither the maxim of Delegatus non potest delegare nor the doctrine of
agency nor the doctrine of separation of powers appears to have found much favour with the
Bench. Although the ghost of Queen v. Burah,7 did not fail to haunt the judgment, it was pointed
out that the question of delegation in India depended on the construction of the express provision
of the Indian Constitution and the theory that the unlimited right of delegation was inherent in the
legislative power itself was disputed.

28
 The Federal Court, in Jatindra v. Province of Bihar,8 held that the power to extend the duration
of an Act beyond the period declared in the Act could not be validly delegated. But the Supreme
Court has, in Inder Singh v. State of Rajasthan,9 expressly dissented from this view. “The reason
for upholding a legislative provision authorising an outside authority to bring an Act into force at
such time as it may determine,” the Court said, is that it must depend on the facts as they may exist
at a given point of time whether the law should then be made to operate, and that the decision of
such an issue is best left to an executive authority.10
The Supreme Court had occasion in the case of Edward Mills v. The Stale of Ajmer,11 to
consider Section 27 of the Minimum Wages Act, 1948. Section 27 is in the following terms:
“The appropriate Government after giving by notification in the Official Gazette not less
than three months' notice of its intention to do so, may, by like notification, add to either part
of the Schedule any employment in respect of which it is of opinion that minimum rates of
wages should be fixed under this Act, and thereupon the Schedule shall in its application to the
State be deemed to be amended accordingly.”

Page: 484

The essential features of the section are:—

(i) It is the “opinion” of the appropriate Government which determines the matter.
(ii) It does not insist on any standard or guide hy which the opinion is to be formed.
(iii) The Preamble of the Statute is “to provide for fixing the minimum rates of wages in certain
employment.”
(iv) The language of Sec. 27 appears to speak of two notifications in the Official Gazette for
three months, one of the intention and the other presumably of the act itself, but does not
expressly include any scope for revision of notification. Presumably the first notification
only gives time to the industry to be affected to adjust. The law does not provide that the
opinion formed can be challenged even within any of the periods of three months for
amendment or revision.
The Supreme Court upheld this delegation by observing that by section 27, the Legislature did
not, in any way, strip itself of its essential powers or assign to the administrative authority anything
but an acccessory or subordinate power which was deemed necessary to carry out the purpose and
the policy of the Act.
The reason given by the Supreme Court in justifying this delegation is that “conditions of labour
vary under different circumstances and from State to State and the expediency of including a
particular trade or industry within the schedule depends upon a variety of facts which are by no
means uniform and which can be ascertained by the person who is placed in charge of the
administration of a particular State.”

29
 Now the language of Section 27 of the Minimum Wages Act gives the power to add and thereby
amend the Act itself. Assuming that due to special local condition, a particular industry is added,
but subsequently, that industry either declines or developes other special features which make it
expedient that the Act should no longer apply to it, then this delegation under Sec. 27 does not
give the power to exclude the added employment. In such a case perhaps the powers of exemption
and exception contain in Sec. 26 of the Act may be invoked though the language of Sec. 26 does
not expressly give the power to strike out an employment from the schedule. Sec. 26(2) of the Act,
however, gives the appropriate Government for “special reasons” again by notification to exclude
application of the Act or any part thereof to all or any class of employees in any scheduled
employment or to any locality where there is a scheduled employment.

Page: 485

This part, therefore, perhaps can be notified to be excluded in this particular case. By this power
of delegation and by the combined operation of Sec. 27 and Sec. 26 of the Act the entire enacted
Schedule passed by Parliament may be replaced by the executive Government by an entirely
different Schedule than what Parliament enacted.
Ganga v. Tejpur Kalibarta Co-operative Society Ltd.12 involved section 16 of the Assam Land
& Revenue Regulation, 1886, dealing with the right of fishery. It provides that the Deputy
Commissioner, with the previous sanction of the State Government, may, by proclamation declare
any collection of water to be a fishery; and no right of fishery so declared shall be deemed to have
been acquired by the public or by any person except as provided in the rules made under Sec. 155
of the Act. There is nothing in the provision of Sec. 16 which either lays down or indicates what
are the principles on which such rules for acquisition of fishery right by the public or by any person
can be made, nor is there anything in that Section to indicate any policy which is empowered by
Section 155 of the Act to make rules relating to the granting of licence and framing of right to fish
in fishery proclaimed under Sec. 16 consistent with the Regulation. The High Court of Assam
in Nuruddin Ahmed v. the Stale of Assam,13 declared Rule 12 of the Fishery Rules ultra vires of
State Government and therefore invalid and unenforceable. Rule 12 provided “no fishery should
be settled otherwise than by the sale except by the State Government. The order of settlement
passed by the State Government, shall be final; provided that the State Government may introduce
the tender system of settlement of fishery in place of sales by auction system whenever it is
considered necessary.” The Supreme Court overruled the Assam High Court decision
in Nuruddin's case.
The question, before the Supreme Court, therefore, was whether there was any power conferred
on the State Government by these rules to settle fisheries otherwise, than by sale, e.g., by individual
settlement without a settlement thereof by auction system or by tender system. In the judgment of
the Supreme Court, it is said that no fetter could be placed on the discretion of the State
Government and that State Government was the best judge to determine what procedure to adopt
for settlement of fishery rights otherwise than by sale. The Supreme Court disposed of the case on
the narrow ground of interpretation of Rule 12 and not on the broader ground of ultra vires and
delegation.

30
 Page: 486

In Bhatnagar & Co. Ltd. v. the Union of India,14 the Supreme Court considered the Imports and
Exports Control Act, 1947. That Act purported to continue for a limited period to prohibit or
control imports and exports which had already been enacted by the Defence of India Act and the
rules framed thereunder. The Supreme Court, held that the legislation which authorises the issue
of licences did not amount to delegation, because, the general policy for securing public safety and
maintenance of public order and the maintenance of supplies and services essential to the life of
the community is embodied in the preamble of the Defence of India Act and Sec. 2 of the Imports
and Exports Control Act, 1947. The Supreme Court observed:
“The challenge to the validity of the legislative enactment on delegated legislation often
presents problems which are not easy of solution. The recent history of judicial decisions,
however, shows that though there is a considerable divergence of opinion in the approach to
the question of dealing with such a challenge, some principle may be said to be fairly well
settled. There is no doubt that the legislation which is conditional, properly so called, must be
distinguished from legislation which is delegated.”15
The challenge in that case was that the Imports and Exports Control Act, 1947, did not lay down
any principle and give any guidance to the delegate while it relegated the implementation of the
Statutory provision to him. The Supreme Court met that challenge by reference to the preamble
and the material provisions of the Act and found that the questions of policy had been clearly
decided by the Legislature. The Supreme Court in Bhatnagar case relied on its previous decision
in Hari Shankar Bagla v. The State of Madhya Pradesh,16 where Sections 3 and 4 of the Essential
Supplies Temporary Powers Act, 1946, were attacked as ultra vires on the ground of undue
delegation of legislative power. The Supreme Court there observed:—
“The Legislature must declare the policy of law and legal principles which are to control
any given cases and must provide a standard to guide the officials or the body in power to
execute the law. The essential legislative function consists in the determination of choice of
the legislative policy and of formally enacting that policy into a binding rule of conduct.”
In Hari Shankar Bogla's case also the supreme Court upheld the Statute on the ground that
principle of the maintenance or

Page: 487

increase in supplies of essential commodities and/or securing equitable distribution and availability
at fair price was clearly laid down and/or it was a sufficient guide to the Central Government in
exercising its power under Sec. 3 of the Essential Supplies Temporary Powers Act, 1946.
In Rajnarain Singh v. The Chairman, Patna Administration Committee,17 the Supreme Court
unanimously held the notification under the Bihar & Orissa Municipal Act, 1922, ultra vires on
the ground that the notification effected an essential change in the policy enunciated in the Act.

31
Section 3(1)(f) empowers the delegated authority to pick any section it chose and exend it to Patna
with such “restrictions and modifications” as it thought fit. Sections 4, 5 and 6 afford a statutory
guarantee that no municipality competent to tax shall be thrust upon a locality without giving its
inhabitants a chance of being heard and of being given an opportunity to object. The impugned
notification subjected the residents of the Patna village to municipal taxation without observing
the formalities imposed by sections 4, 5 and 6; the Court held that the notification travelled beyond
the authority conferred by section 3(1)(f).
Much of the discussion on delegated legislation in the juristic and legal world has an air of
unreality. Gone are the days of simple Government and simple legislation when Parliament and
Legislatures knew and were expected to know exactly what should be stated in the statute.
Delegation today has become one of the many necessary evils of modern legislation on the ground
of growing complexity of administration. The better legal opinion today is no longer the ideal of
the perfect law where all the details are to be stated but to see that such delegation, should not be
no more than, is absolutely necessary. The error in the world of jurisprudence on this point is
caused by the desire to classify and stratify the different forms of delegation. It is not often realised
that a rigid pattern cannot be laid down to cover different forms of delegation which might vary
considerably not only because of the subject of legislation but also because, of the imperceptible
and inarticulate theory which is growing in the modern world that the modern statutes in a
representative democracy are not always the final conclusions of Parliament and Legislatures on
the subjects dealt therein but arc used more or less as testing instruments by which social reactions
arc probed, judged and moulded as the Act continues to operate.
It is, therefore, becoming increasingly necessary to have a new and radical outlook for judging
and guiding delegated legislation.

Page: 488

General principles that legislative policy and function cannot be delegated or that the standard and
guide should be laid down are not going to be of much practical value. Delegation has now to be
judged on three major grounds in the light of the illustrations that I have drawn from the Statutes:—
(i) The first ground is to examine delegation of the power to determine the condition or
contingency under which a statute shall be operative;
(ii) The second ground is to examine the delegation to operate or suspend or extend or modify
the statute or any provision thereof;
(iii) The third ground is to examine the delegation of the power to make rules and regulations;
(iv) The fourth ground is to examine the delegation of the power to ascertain facts and to apply
and administer standards which is increasingly resorted to in Tariff or Fiscal Statutes. It is
very often said that the Legislature, for instance, may lay down the principle and the rate
according to which duties arc to be levied and then leave it to an external authority to
determine whether a particular article or merchandise is dutiable and therefore, this is not
the delegation of the power of taxation in the modern complex fiscal administration. This
proposition cannot be conceived in the abstract. It must be read and applied in terms of the
subject-matter. Determination of that subject matter is, therefore, closely co-related to the

32
 power of taxation because by random and arbitrary decision whether an article is dutiable
or not or whether an article is dutiable under a particular item or not, the whole basis and
principle of taxation can be altered or modified so radically as to go beyond the original
intent of the statute. The power of taxation is a practical and not a theoretical power. It is
unwise to dismiss the situation merely as a delegation of the power for execution of the
policy of the Act.18 The delegation of power to make rules can be checked by testing the
rules framed with reference to the terms of the statute. But the delegation to ascertain facts
and administer

Page: 489

standards carries with it more drastic and uncontrolled power than is ordinarily realised
and it is therefore necessary to check and control this particular power of delegation. It
raises somewhat similar problems where the power to apply a law upon certain conditions
and contingencies is delegated. Unless these conditions and contingencies arc reasonably
specific such delegation is also open to the same criticisms in spite of decisions which draw
their descent and inspiration from Queen v. Burah.19 Nobody seems to have yet questioned
the principle why outmoded systems of colonial legislation should be applied to modern
Parliaments and modern representative democracies with far more effective machinery
than what the Government used to have in the days of Queen v. Burah. Colonialism
depended on the man on the spot. The man on the spot today is the omnipresent
representative democracy with a vast net work of legal representation from different
constituencies in Parliament and State Legislatures and a representative from each
constituency. It is submitted that the whole basis of the decision of Queen v. Burah has
disappeared in this modern context.
The delegation of the entire procedure so frequently resorted to in modern statutes demands
much closer examination than it has received so far. The doctrine of principles and standards can
be usefully imported to give practical relief in this type of delegation which involves delegation of
procedure. Some principles and some standards of the procedure itself should be laid down instead
of committing the entire procedure to the rule-making authority. It is, of particular, importance not
merely in fiscal Statutes, but also in criminal jurisprudence. To the ordinary citizen, the procedure
is very often more important and more touching than the general principle. It is suggested that the
principles of prescribing standards should also be introduced wherever there is delegation to
ascertain facts.
Problem of Delegated Legislation Re-stated.
In the realm of applied jurisprudence the difficulty lies not in the theoretical test that the
delegation is to be judged bad when no principle or guide is laid down in the Act. That is well
accepted and

Page: 490

well settled. The real difficulty lies in the practical application of this test. The question is whether
the maintenance of public order and safety or maintenance of essential supplies and services,

33
would by themselves be a sufficient guide to the delegate in making the law in implementing that
policy. Here, the question of degree may be pushed to such an extreme that it may infringe the
question of principle. To illustrate the difficulty I shall pose the question, will it be enough guide
in a statute if it only contains one Section like this:—
“This Act is called the Public Welfare Act. The State Government will have the power to
make rules for improving the welfare and conditions of the people of India and giving effect
to this Act.”
One ventures to submit that the adumbration of the general principle of public welfare will not
save such delegation from being bad. The delegate does not know what exactly is the guide or
standard. The general principle or standard of public welfare of the people of India is too vague
and too general a standard to entrust on the basis of which the delegate can be clothed with
legislative function for effectuating that general purpose. Similarly is an Act which contains
nothing but one section declaring the principle:
“An Act to improve education in India and giving powers to the State Government to make
rules for giving effect to that purpose.” Such instances can be multiplied. The tendency to
generalise is symptomatic of the modern age of shirking labour and responsibility for thinking
out lines of action. A large responsibility, therefore, lies on the courts and administration to
approach the problem of delegation not with the philosophical attitude of discovering vague
general principles of laying down maxims of standards or guides, but to define actual practical
limits to such general theories. It can be done only by the hard way of examining specific
problems and not by the soft way of indulging in general philosophy. What is needed on this
branch is not ideology but methodology.
That principle or guide must be laid down in the statute is the first axiom by which to test or
judge delegation. The second test is that the delegation is not saved by mere enunciation of a
general principle or standard. The standard must be specific. This does not certainly mean that the
specific standard has to be exactly and precisely framed, for then there would be no occasion for
delegation at all. But this test insists that this specific standard must relate to certain conditions
and limits which should outline the arena within

Page: 491

which the delegate must work with his rules, but beyond which he should not be permitted to go.
Reforms Suggested
(1)(a) Terminological consistency and precision in the provisions of the Act where power is
delegated to the Executive.
(b) A fuller Cabinet Summary for the draftsman and more use of the Office Memorandum
of the administrative officers when drafting clauses for delegation.
(2) Abolition of all delegation to extend, amend or exempt the operation of the statute. Should
such power be in any extreme cases needed, then the relevant statute (a) should lay down
specific conditions and standards on the basis of which the power is to be exercised and (b)
must always insist on the condition of previous publication of the rules. On this branch it

34
 is submitted the better alternative is to pass a short amending Act whenever extension,
amendment or exemption is intended, so that Parliament's attention is effectively focussed.
(3) Abolition of all powers of delegation to the Executive Government to issue directions for
the purposes of working of the Act. Legislative sanction for federal government to issue
executive directions to the State Government should not find a place in a statute.
(4) Abolition of the useless procedure of laying the rules on the Table of Parliament or the
State Legislature. The general American procedure on this point is more sensible and it
does not provide for laying the rules on the Table unless on a specific subject there is a
particular demand.20 If complete abolition of the procedure of laying on the Table is
thought to be too radical, then the next best alternative is to provide for an Affirmative
Resolution of Parliament or State Legislature as the case may be before these rules become
operative.
(5) Wherever delegation is by the rule-making power such rules should always require previous
publication

Page: 492

with facilities offered by Sec. 23 of the General Clauses Act before they become operative
or rendered part of the Act. It is suggested that besides publication in the Official Gazette
which often goes unnoticed such publication should be supplemented by circulars issued
to Chambers of Commerce or other Association of persons or interests who arc going to be
affected by these rules and summary advertisements in the newspapers.
(6) Impersonal delegation should generally specify the rank or class of officers who should act
as the delegate.
(7) Wherever there is Sub-delegation, the work of the Sub-delegate must require ultimate
Written Affirmation of the original delegate under the statute.
(8) Delegation occurring in skeleton legislation should be reformed on the following lines:—
(a) Change of Schedule or Appendix to the statute should be made generally on the
principle of Ejusdem Generis as one of the conditions for altering the Schedule or
Appendix.
(b) Such change should never come into force immediately upon notification but must
always be preceded by the condition of previous publication and right of objection.
(9) When there is any delegation of procedure, the statute should lay down (a) the basic features
of that procedure, (b) requirement of Publicity, (c) right of objection and representation
and (b) right of hearing. The practice of permitting the entire procedure to be invented ad
hoc by the delegate should be discontinued.
(10) Delegation of power to determine the condition or contingency under which the statute
can be operated should be abolished in the present age.

35
 (11) Delegation of power to ascertain facts and to apply and administer standards should also
lay down specific conditions and standards as well as the condition of publicity for
ascertainment of such facts.
———
*
Judge, High Court, Calcutta, and Chairman of the Law Institute's Committee on Delegated
Legislation.
1
Sec. 23.
Provisions applicable to making of rules of bye-law after previous publication.
Where, by any (Central Act) or Regulation, a power to make rules or bye-laws is expressed
to be given subject to the condition of the rules or bye-laws being made after previous
publication, then the following provisions shall apply, namely:—
(1) the authority having power to make the rules or bye-laws shall, before making
them, publish a draft of the proposed rules or bye-laws for the information of persons
likely to be affected thereby;
(2) the publication shall be made in such manner as that authority deems to be
sufficient, or, if the condition with respect to previous publication so requires, in such
manner as the (Government concerned) prescribes,
(3) there shall be published with the draft a notice specifying a date on or after
which the draft will be taken into consideration;
(4) the authority having power to make the rules or bye-laws, and where the rules
or bye-laws are to be made with the sanction, approval or concurrence of another
authority, that authority also, shall consider any objection or suggestion which may be
received by the authority having power to make the rules or bye-laws from any person
with respect to the draft before the date so specified;
(5) the publication in the Official Gazette of a rule or bye-law purporting to have
been made in exercise of a power to make rules or bye-laws after previous publication
shall be conclusive proof that the rule or bye-law has been duly made.
2
Raman & Raman v. State of Madras, AIR 1959 SC 694 Imam, Sarkar & Subba Rao JJ.
3
(1877-78) 5 IA 178.
4
Edward Mills v. State of Ajmer, (1955) 1 SCR 735
5
1954 SCR 808
6
1951 SCC 568 : 1951 SCR 747
7
(1877-78) 5 IA 178
8
1949 FCR 596
9
AIR 1957 SC 510
10
Ibid, at 516

36
11
(1955) 1 SCR 735
12
1957 S.C.A. 208 : AIR 1957 SC 377
13
AIR 1956 Assam 48.
14
[1957] S.C.A. 810 : AIR 1957 SC 478
15
[1957] S.C.A. at 822.
16
[1955] I.S.C.A. 38 : 1955 I.S.C.R. 380
17
(1955) 1 SCR 290.
18
cf. Mercantile Co. Ltd. v. Asstt. Collector of Custom, (1957-58) 62 CWN 661. In this case I had
the occasion to point out how by changing the base of facts the importer was taxed more than
300%.
19
(1877-78) 5 IA 178
20
See, Carr, Delegated Legislation in the United Stales, 25 Journal of Comparative Legislation
and International Law (3rd series) 47; Benjamin, Administrative Adjudication in the State of New
York (Report); Report of the Wisconsin Legislative Council on Administrative Bule-Making.

Judicial Control of Delegated Legislation in India

By V.N. Shukla*

Judicial review of legislation has always been an essential feature of the Indian constitutional
law. At one time it was contended before the Calcutta High Court that the limits on the powers of
the Indian Legislature are political, and not legal, and that the validity of its legislation is not a
justiciable issue. The Court rejected the plea saying:
“The theory of every government with a written constitution forming the fundamental and
paramount law of the nation must be that an Act of the legislature repungnant to the constitution
is void. If void, it cannot bind the courts, and oblige them to give it effect; for this would be to
overthrow in fact what was established in theory, and make that operative in law which was not
law.”1
The Privy Council approved the interpretation of the Calcutta High Court of the functions of the
court,2 and the question of validity of an Act has ever since been treated as an ordinary matter of
construction of the Constitution Act.3 The present Constitution incorporating a list of fundamental
rights of the citizen has widened the ambit of judicial review.

The position in England is different. No British court can give judgment that an Act of
Parliament need not be obeyed because it is ultra vires. No Act is beyond Parliament's competence
since there is no law which defines what is within its powers. The British Parliament has entrusted
to the two Houses of Parliament, subject to the consent of the King, an absolute power

37
untrammelled by any written instrument obedience to which may be compelled by any judicial
body.

But the rule of non-challengeability is applicable only to Acts of Parliament. It does not apply
to delegated powers. A subordinate power of law-making is limited by the terms of the enactment
whereby it is delegated, and the courts, when a question arises whether the

Page: 358

prescribed limits have been exceeded, must determine that question.4

In regard to subordinate legislation, too, there is an important distinction resulting from the
divergence in the constitutional theories of the two systems. British Parliament is sovereign and
may, if it likes, confer on any subordinate law immunity from being challenged in a law court.
Thus by excluding subordinate legislation from the control of the courts, it may obliterate the
distinction between subordinate and supreme legislation. In India obviously there is no such power
with Parliament. It can delegate only what it has, and it has no power to oust the jurisdiction of the
courts from the review of laws, direct or subordinate.5

In this connection it will be appropriate to consider the effect of two sorts of provisions
sometimes found in Indian statutes : an Act may declare (a) that the rules made thereunder shall
not be called in question in any court; or (6) that such rules are to have the same effect as if
contained in the Act itself.

As to the first, it has been held that the provision would not prevent the court from determining
the validity of a rule. In Keshav Talpade v. Emperor,6 the Federal Court declared Rule 26, made
under the Defence of India Act, 1939, ultra vires the Act in spite of S. 16(1) of the Defence of
India Act which stated that “No order made in exercise of any power conferred by or under this
Act shall be called in question in any court.” This section, though it did not mention the word rule,
has, it seems, to be understood to comprehend the act of rule-making also. The view of the Federal
Court about the validity of Rule 26 has been reversed by the Privy Council in Emperor v. Shibnath
Banerji7 but the Privy Council agreed with the Federal Court that S. 16(1) could not exclude the
courts from scrutinising a rule or order and from declaring it illegal if so found. In K.E. v. Shibnath
Banerji,8 Lord Thankerton, delivering the judgment of the Board, said about the objection to the
court's jurisdiction based on the above sub-section as below:
“Sub-Section (1) assumes that the order is made in exercise of the power, which clearly leaves it
open to challenge on the ground that it was not made in conformity with the power conferred.”

Page: 359

The second type of provision, viz., as if contained in the Act, has been the subject-matter of
considerable controversy in English Law. In Institute of Patent Agents v. Lockwood,9 the rules to
be made by the Board of Trade were declared to “have the same effect as if they were contained

38
in this Act.” Lord Herchell, with a majority in the House of Lords, held that the above words meant
to exclude the rules altogether from judicial examination. His argument was that you cannot
canvass an Act of Parliament in a court and if Parliament said that a rule made under the Act shall
have the same force as if “contained in the Act itself,” it intended to confer on the rule the same
immunity from judicial control as is possessed by the delegating Act itself. This opinion of Lord
Herchell was not necessary, however, for the decision of the appeal and must be treated as
mere obiter dicta. Yet the soundness of the opinion has been doubted and, in a later
case, R. v. Minister of Health, exparte Yaffee10 the House of Lords seems to have been of the
opinion that these words do not prevent the courts from ascertaining whether a subordinate law
conflicts with the delegating Act. The reasoning used is that while the provision makes the order
speak as if it were contained in the Act, the Act in which it is contained is the Act which empowers
the making of the order, and therefore if the order as made conflicts with the Act, it will yield to
the Act.

In India, so far as the jurisdiction of the court to examine subordinate legislation is concerned,
the clause has been understood in the same sense11 as explained in the Yaffe case.12 Whether these
words have the effect of enlarging the scope of delegated power to any particular case, we shall
consider below.

Grounds of Invalidity
Invalidity of delegated legislation may arise on account of any one of the following reasons:
1. The enabling Act being ultra vires.
2. The subordinate legislation violating the Constitution.
3. The subordinate legislation being ultra vires the delegating Act.

1. A law will be ultra vires if it violates a constitutional prohibition.

Page: 360

The prohibition which has been infringed may affect the competence of the Legislature to enact
the law or it may merely operate as a check on the exercise of a power which is within its
competence.13 Where the law is unconstitutional on either ground it is devoid of any effect and is
unenforceable.

As to the competence, we may classify it as express and implied. The implied want of
competence is illustrated by decisions of the Supreme Court regarding the limits within which the
Legislature may delegate its law-making powers on outside authorities.14 Thus it is now settled
that there is a limit beyond which delegation may not go. The limit is that essential powers of
legislation cannot be delegated which consist in the determination or choice of the legislative
policy and formally enacting that policy into a binding rule of conduct. The Legislature,
accordingly, may not delegate its functions of laying down legislative policy to an outside authority
in respect of a measure and its formulation as a rule of conduct. So long as a policy is laid down
by the delegating Act, the Act is not unconstitutional because it leaves to the Executive the making
of subordinate rules within prescribed limits and the determination of facts to which the legislation

39
is to apply.15 A law may therefore be challenged on the ground that in making delegations of
powers it has transgressed the permissible limits. Thus in re Delhi Laws Act etc.16 the majority of
the Judges held the exercise of delegated law-making power invalid because the enabling Act
was ultra vires for it had exceeded the constitutional limits in permitting the Executive to repeal a
law existing in the area. Likewise, in Raj Narain Singh v. Chairman, P.A. Committee17 power was
given to extend, with modifications, an existing Act to a municipal area. The notification issued
under this power picked out one section and extended that to the municipal area. The effect of such
partial extension was to bring about a change in the policy of the Act. It was held that it was
an ultra vires exercise of the power because an executive authority cannot be authorised to modify
existing laws in any essential feature.

Page: 361

Coming to the express limitations, no Legislature, for instance, has the power to transgress the
distribution of powers embodied in the Constitution.18 The legislative powers of the Union are
divided between Parliament and the State Legislatures. The ambit and limits of the respective
powers are defined in the Constitution. Union Parliament can make laws for the whole of India or
any part thereof in respect of matters in the Union List and, concurrently, with a State Legislature
in respect of matters in the Concurrent List. Residuary powers belong to the Union. Accordingly,
an Act of Parliament which encroaches upon a subject in the State List is invalid. In Tan Bug
Taim v. Collector of Bombay,19 a case under the Government of India Act, 193520, the Defence of
India Act, inter alia, empowered the Central Government to make rules for the requisition of
immoveable property. The rule made under the Act for requisition of property was held ultra
vires on the ground that the subject of requisition of immoveable property fell outside the three
lists.21 In Bhimsen v. State of U.P.22. rule 84 made under section 49 of the U.P. Panchayat Raj Act,
1947, in so far as it related to the constitution of a special bench where one of the parties belongs
to a place outside the State was held ultra vires. Article 245 of the Constitution empowers a State
Legislature to make laws for the whole or a part of the State. The impugned rule in giving extra-
territorial operation to its provisions transgressed the limits placed on its powers.

The other reason of unconstitutionality, as we have noted above, is that the prohibition operates
as a check on the exercise of a power which is within the competence of the Legislature. Violation
of the provisions of Part III of the Constitution which declare a number of fundamental rights of
the citizen would fall under this category. It is provided23 there that the State shall not make any
law which takes

Page: 362

away or abridges the rights conferred by Part III and if any law does have that effect, it shall be
void to the extent of contravention. The same principle is made applicable to the laws existing on
the date of the commencement of the Constitution. In Chintamanrao v. State of Madhya
Pradesh24 an Act of the state Legislature empowered the Deputy Commissioner to prohibit, by
general order, during the agricultural season, the manufacture of bidis (a kind of cigarette) —in
40
such villages as he might specify. By a notification issued under the Act, the Deputy Commissioner
forbade all persons in certain villages from engaging in the manufacture of bidis. The Supreme
Court held that the Act (in permitting the imposition of a total prohibition upon those carrying on
the business of manufactures of bidis during the Aagricultural season) arbitrarily interfered with
private business and thereby violated the fundamental right guaranteed by Article 19(1)(g) of the
Constitution. In the result the Deputy Commissioner's notification was held to be void and
inoperative.

2. Subordinate legislation in violation of the Constitution—In some instances, while the

enabling Act may be valid, the subordinate legislation made thereunder may be violating some
provision of the Constitution. The same principles which govern the constitutional validity of
legislation emanating directly from Parliament will apply in determining the validity of a
subordinate law. The decision of the Supreme Court in Dwarka Prasad v. State of U.P.25 is an
instance of subordinate legislation in conflict with the Constitution being held ultra vires. In that
case sub-clause (i) of clause (3) of the U.P. Coal Control Order, 1953, issued under section 3 of
the Essential Supplies (Temporary Powers) Act, 1946, provided that no person shall “stock, sell,
store for sale or utilise coal for burning bricks or shall otherwise dispose of coal in this State except
under a license in Form ‘A’ or ‘B’ granted under this Order or in accordance with the provisions
of this Order”. Clause 3(ii)(4) laid down that nothing contained in sub-clause (i) “shall apply to
any person or class of persons exempted from any provision of the above sub-clause by the State
Coal Controller to the extent of their exemption.” The Supreme Court held that
clause 3(ii)(b) was ultra vires because it gave unrestricted power to the State Controller to make
exemptions, and even if he acted arbitrarily or from improper motives there was no check over
him and no way of obtaining redress. Such a power was violative of the freedom of trade and
business guaranteed under Article 19(1) (g), and could not be justified as a reasonable restriction
under clause

Page: 363

(6) of the same article.26

In Sheo Shanker v. M.P. State27 the question arose whether the enabling Act also became
invalid if a rule made under it is found to be ultra vires on the ground of its violating some
provision of the Constitution. The majority held that the Act was not, but the offending rule alone
was, to be rejected.

3. Subordinate legislation being ultra vires of the delegating Act— This is the only ground on
which the courts in Britain could hold a statutory rule invalid.28 The two grounds above are only
the amplification of the principle that the delegated power must not exceed the competence of the
delegating authority and have no relevance to parliamentary delegation in England.

The various circumstances which may attract the invalidating rule of ultra vires to the exercise
of power of delegated legislation may be stated below:

(a) In excess of delegated authority.—The delegated power is limited by the terms of

delegation. If the rules are not within the powers entrusted by the Legislature, they are liable to
challenge as ultra vires. A good example of the application of this general principle is found in the

41
recent Allahabad case of Chandra Bali v. R.29 Section 19 of the Northern India Ferries Act
authorised the making of rules for the purpose of maintaining order and safety of passengers and
property but the Commission under the delegated power made rules also for the purpose of
forbidding the establishment of private ferries within a distance of two miles from the limits of
another ferry. The Court held the rules ultra vires on the ground that they were outside the scope
of the rule-making power conferred by the Act.

It seems that the courts will not import any implied doctrine to enlarge the ambit of delegated
powers. Thus in Agarwal Avengar & Co. v. State30 it was contended that the power conferred on
the rulemaking authority to control the price of textiles impliedly carried with

Page: 364

it the power to regulate the price of “lickerin wire”—an article necessary for use in the machinery
for carding cotton. The principle relied upon in support of the contention was that whenever power
is conferred upon the Legislature to pass laws in a given field, that power carried with it the power
to regulate all matters which might be called subsidiary or ancillary. The Court held that this
principle was inapplicable in interpreting the subordinate power of legislation conferred upon the
executive government.

It is observed here, however, that the effective application of the rule that the delegated powers
must not go beyond the terms of the enabling authority is conditioned by the delegatory Act
defining the precise limits of the law-making power. If the power to make rules is delegated in
very wide terms there would be little scope left to apply the rule of ultra vires. The language used,
for example, in section 2, sub-sec. (1) of the Defence of India Act, 1939, is so comprehensive that
it is difficult to conceive how any rules can be beyond its scope. Sub-section (2) of the same section
gave certain powers which were, however, declared to be “without prejudice to the generality of
the powers conferred by sub-section (1)-” In King Emperor v. Sibnath Banerji31 the Privy Council
held that a rule which was covered by the more general language used in sub-section (I) would not
become ultra vires although it did not fall within the terms of the legislative provisions of sub-
section (2)

(b) In conflict with the delegating statute—Subordinate legislation, to be valid, must not be in
conflict with or repugnant to the delegating Act. In Ram Prasad v. State32 Section 49 of the U.P.
Panchayat Raj Act, 1947, laid down that every case or proceeding cognizable by panchayat adalat
(village court) must be tried by a bench constituted in the manner provided in the Act. Rule 87
made under the Act laid down that three members of a panchayat adalat shall constitute the quorum
of meeting of any bench. This number was less than that prescribed in the Act. The Court held the
rule invalid on the ground of its being inconsistent with the main provisions of the delegating Act.

Some times there are cases, similar to the above Allahabad case, where the conflict between the
parent Act and the subordinate legislation may not be as apparent, yet the latter may be found to
be repugnant to the scheme of the Act. To illustrate, in Haji H. Ibrahim v. Emperor33 the power to
make rules under the Factories Act for precautions

Page: 365
42
to be taken against fire was held not to include power to make rules for the consequences of the
fire since the Act intended that the provisions regarding that matter should be made by each factory
(as far as could reasonably be required in the circumstances of each factory), and then leave to the
inspectors to see if the necessary precautions have been taken.

Occasionally the question has arisen whether a subordinate law becomes invalid, though
otherwise within the scope of the delegating Act, if it is in conflict with some other general
porovision of law, statutory or non-statutory. For example, in Subbarao v. I.T.
Commissioner,34 the validity of Rules 2 and 6 of the Income-tax Act, 1922, which provided that
an authorised agent could not file the application for the removal of registration of a firm was
involved. The rules, though clearly within the purview of the authority delegated under the Act,
are in conflict with the Powers of Attorney Act, 1822, which permits the agent to sign on behalf
of the principal. The Court held the Rules valid, relying on the principle that a special enactment
overrides more general laws on the same subject. This principle of interpretation applies equally
to Acts as well as to statutory rules, which are to be treated as part of the Act itself. In the above
case, the Act had declared that rules framed thereunder were to have the same effect “as if enacted
in the Act itself.” But it appears from the decision of the Supreme Court in T.B.
Ibrahim v. Regional Transport Authority35 that the same principle is applicable even in the absence
of these words. In that case certain rules were impugned on the ground of being in conflict with
the provisions of an earlier Act. The Court said:
“If Rule 268 is, therefore, within the power of the rule-making authority, it follows that it cannot
be challenged as being void because it is not consistent with some general law.”36

It is doubtful if the courts in England in the absence of an express authorisation by Parliament

would be willing to give such an operation to subordinate legislation.37

(c) Disregard of prescribed procedure—A rule may become ultra vires for not being made in
the manner prescribed by the enabling

Page: 366

Act. Thus where the rules were directed to be made by the State Government with the concurrence
of the Central Government, on proof that amendments had been made in the existing rules without
such concurrence, the rules were held to be invalid.38 The same will be the result if the condition
of “Gazette publication” is disregarded.39 Likewise failure to consult specified interest in
rulemaking, if the condition of consultation is mandatory, will make the rule subsequently
promulgated invalid.40 But non-complicance of a direction to make a rule after previous
publication will not affect the validity of the rule if it is subsequently published in the Official
Gazette. Publication in the Gazette, it may be pointed out here, raises an irrebutable presumption
of law that the rules were made after previous publication.41

The effect of non-compliance with the conditions in the enabling Act that the rules shall be laid
before the Legislature came for consideration in Manna Lal v. H.R. Scott.42 Clause (5) of Article
320 of the Constitution of India requires that all regulations made under the proviso to clause (3)
“shall be laid for not less than fourteen days before each House of Parliament………………as

43
soon as possible after they are made, and shall be subject to such modifications, whether by way
of repeal or amendment, as both Houses of Parlia ment…….may make during the session in which
they are laid.” The Court held that clause (5) is merely directory and the failure to lay them before
Parliament does not entail the consequence that the regulations shall be inoperative and
unenforceable. In England, it appears that a requirement that the statutory instrument is to be laid

Page: 367

before Parliament will be treated as merely directory43 unless the enabling Act has expressly
stipulated that, if not laid, it shall have no legal effect.44

(d) Mala fide—There is no Indian case where a statutory rule has been held invalid on the
ground of mala fide exercise of the rule making power. But if it is established that the rule-making
authority has acted with ulterior motive, the court would reject the rule. The following observations
of Viscount Simon, L.G., in K.E. v. Binori Lal Sharma45, which involved the validity of an
Ordinance made by the Governor-General, assumes the existence of such a jurisdiction:
“Assuming that he [the Governor-General] acts bonafide and in accordance with his statutory
powers, it cannot rest with the courts to challenge his view that the emergency exists.”46

(e) Reasonableness—In England the courts will not hold a departmental regulation invalid on
the ground of unreasonableness, though a bye-law of the county council may be declared to
be ultra vires on that ground.47 In a recent case, Taylor v. Brighton Borough Council,48 the Court
of Appeal said, upon being invited to hold that a provision in the Town Planning Scheme
sanctioned by the Minister was ultra vires on the ground of unreasonableness:
“The analogy of the bye-law, even if it could carry the appellant as far as suggested, is quite out
of place in the present circumstances. We are dealing with a totally different class of subject-matter
and one in which the ultimate arbiter is the Minister himself.”

It is submitted that in India also the courts will not examine the reasonableness of a statutory
rule. In Mulcand v. Mukund49 the Court was asked to hold rule 36 made under the Bombay
Cooperative Societies Act invalid on the ground that it was unreasonable. The Court rejected the
plea observing:

Page: 368

“Statutory rules stand on an entirely different footing. Parliament or Legislature, instead of

incorporating the rule into the statute itself, ordinarily authorises Government to carry out the
details of the policy laid down by the Legislature by framing the rules under the statute, and once
the rules are framed, they are incorporated in the statute itself and become part of the statute, and
the rules must be governed by the same principles as the statute itself. And, therefore, although a
bye-law may be challenged on the ground of its unreasonableness, a statutory rule cannot be so
challenged.”

44
 To the same effect are the observations of the Madras High Court in Subbarao v. I.T.
Commissioner:
“It is well established that rules authorised to be made by an enactment are as effectual as if they
were part of the Act itself, the question of their reasonableness, fairness or propriety not being a
matter for the courts to investigate.”50

The judgment of the High Court was affirmed by the Supreme Court in Subbarao v. I.T.
Commissioner.51

But the contrary view has been taken in two decisions of the Allahabad High Court52. Both
these decisions assumed that the courts have a jurisdiction to examine the reasonableness of a
statutory rule though no reason or authority is cited for the view. The decision of the Supreme
Court in T.B. Ibrahim v. Regional Transport Authority53 would appear to support the Madras and
Bombay views. Though in that case the question of reasonableness of statutory rules was not
directly raised, the reasoning used by the Courts is equally applicable to the question. The
important point concerns the status of the statutory rules; are they to be treated as part of the
enabling Act? if as the Supreme Court says, they are “part and parcel of the statute itself”, it is
difficult to see on what basis the court can assume a jurisdiction to examine their reasonableness.
There is no such general power with the courts to examine the reasonableness of Acts of
Parliament.

In one respect, however, the courts are bound to examine the reasonableness of statutory rules
as well as Acts of Parliament or Acts

Page: 369

of Legislature. The Constitution has guaranteed certain freedoms to the citizen. The freedoms are
not absolute; the Legislature is permitted to impose, by law, reasonable restrictions in respect of
these rights generally in the interest of the public54. It is for the courts to determine if the
restrictions imposed on the freedom are reasonable. But here the jurisdiction to ascertain the
reasonableness of the restriction imposed by an Act of the Legislature, or a statutory rule made
thereunder, is on constitutional grounds, and is different from the general reasonableness of
statutory rules discussed above.

Methods of Review
So far we have considered the principles which regulate the review of delegated legislation by the
courts. Now we shall discuss briefly the procedures by which the jurisdiction of the court to
determine the legality of a rule is normally invoked. The principles governing the methods of
review are the same for administrative adjudication and administrative legislation. Therefore in
the following pages only those points strictly applicable to the latter are discussed and the general
nature of these remedies are not discused.
(a) Ordinary litigation—The validity of statutory rules may be challenged in ordinary litigation.
Thus it is a defence to prosecution for an offence created by statutory rules to set up the plea that
the rules are ultra vires and void55. Similarly the validity of staturory rules can be pleaded as a

45
defence to the enforcement of a civil liability, or where a person has suffered damage owing to an
invalid rule he will have a good cause of action for bringing a regular suit56.
(b) Declaratory Suits—In England the validity of statutory instruments may be challenged through
declaratory actions against the Attorney-General. In Dyson v. Attorney-General57 an action was
brought to test the legality of notices issued by the Commissioner of Inland Revenue under the
Finance Act, 1910. The plaintiff contended that the Commissioners had exceeded their powers in
the way in which they had issued the notices. It was held that a declaratory action would lie under
order 25, r. 5 against the Attorney-General as defendant representing the Crown. But the grant of
relief is discretionary and the courts may refuse the declaration unless there is a real and not a

Page: 370

fictitious or academic question to be tried58.

In India the court's power to make declarations accompanied by any coercive direction, is
derived from section 42 of the Specific Relief Act which provides as follows:
“Any person entitled to any legal character, or to any right as to any property, may institute a suit
against any person denying, or interested to deny, his title to such character or right, and the court
may in its discretion make therein a declaration that he is so entitled and the plaintiff need not in
such suit ask for any further relief;
Provided that no court shall make any such declaration where the plaintiff, being able to seek
further relief than a mere declaration of title, omits to do so.”

Whether a suit for simple declaration of invalidity of an Act or a statutory rule lie under section
42 of the Specific Relief Act, 1877, is not authoritatively settled. The question has arisen before
the Privy Council in Thakur Jagannath Bakash Singh v. United Provinces59 but was left open. The
Privy Council said:
“In dismissing the appeal their Lordships wish to make it clear that they express no opinion on two
points mentioned in the case…………. The points are : (1) whether a suit lies under section 42 of
the Specific Relief Act for a declaration that a Provincial statute is ultra vires.”

In Narain Prosad v. Indian Iron and Steal Co.60 and Singara Singh v. Callaghan61, it was held
that a suit for mere declflration that an Act or Ordinance is ultra vires and void does not fall within
the terms of section 42, Specific Relief Act. The reasoning is that section 42 does not sanction
every form of declaration. The person seeking relief must ask for a declaration either in regard to
any property or in regard to any legal character. It will be difficult to maintain that a person who
asked for a mere declaration of vires of an Act or rule is seeking a declaration of title or legal
character within the meaning of the section. On the other hand, it is open to argument why the
expression “legal character” should not be held wide enough to include the status of a man not to
be subjected to or threatened to be subjected to, a law which is ultra vires. Indeed, in the sphere of
private

Page: 371

46
law, decisions have given quite an extended meaning to “legal character”.62

Assuming that a declaration of invalidity of a law does not fall within the terms of section 42,
Specific Relief Act, can such relief be given by civil courts in exercise of their inherent power? In
other words, is section 42 exhaustive with regard to declaratory action? Any commentary on the
Specific Relief Act would show that there are two views on the matter. Thus the High Court of
Madras has taken the view that section 42 should not be held exhaustive of declaratory
decrees.63 The other view is that courts have no jurisdiction to grant a declaration apart from
section 4264.

Petition for writs and orders

Article 226 of the Constitution empowers every High Court to issue to any person or authority,
including in appropriate cases the state government, directions, orders or writs, including writs in
the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari, or any of them,
for the enforcement of any of the rights conferred by Part III and for “any other purpose”. 65 A
similar power to use such writs and orders for the enforcement of the fundamental rights has been
conferred on the Supreme Court under Article 32. The ambit of powers of the High Courts is wider
than the powers of the Supreme Court, for the former may exercise its jurisdiction not

Page: 372

only for the enforcement of the fundamental rights but also for “any other purpose”.

It will be noted that the power given to the High Courts and the Supreme Court is not confined
only to issuing what are known as prerogative writs. This is clear from the words used in Articles
226 and 32 : the High Courts may issue directions, orders or writs, including writs in the nature
of habeas corpus, mandamus etc. The word ‘including’ connotes an amplification of the ordinary
meaning of the writs in the nature of habeas corpus, mandamus etc.66

A perusal of the reported decisions since the commencement of the Constitution would show
that the invalidity of an Act or subordinate law has been the foundation of a large number of cases
invoking the jurisdiction of the High Courts under Article 226, and of the Supreme Court under
Article 32. More commonly it is the order or writ in the nature of mandamus which has been used
as a means to raise the issue of invalidity of legislation.67

There is no doctrine of immunity of the State or its officers, in India. Article 226 expressly
mentions that the writ may be issued on the Government. Hence this procedure is being used as an
expeditious means of challenging the validity of an Act or a statutroty rule. The applicant comes
before the High Court with the allegation that a particular law or statutroy rule is ultra vires, that
its enforcement against him affects his rights and that the High Court may issue a writ of
mandamus to order the Government or its servants to desist from enforcing the same against
him.68 The High Court has thus been induced to enter into the question of the vires of the impugned
law. To illustrate, in Sheo Shanker v. State69 the petitioner, characterised as discriminatory the
provisions of one of the rules under the Prohibition Act which precluded a person from obtaining
a permit to consume intoxicating liquor unless he had a certain social and economic status and on

47
that ground, invited the High Court to issue a writ of mandamus directing the State Government
not to enforce the rule against him and to withdraw or cancel the rule.

Page: 373

In Charnajitlal v. Union of India70 the Supreme Court has held that the right sought to be
enforced by mandamus must ordinarily be the right of the petitioner himself. The Calcutta High
Court holds that an application must be preceded by a distinct demand for performance of the duty
in order to give the party an opportunity to consider whether he should comply or not with such
demand.71 The Nagpur72 and Bombay73 High Courts, however, hold the rule of demand to be
flexible. But the court will not pass judgment on the validity of a statute upon complaint of one
who fails to show that he has been injured by its operation. The new procedure
of mandamus appears to have compensated for the non-availability of the remedy (if that is the
interpretation which is finally accepted) of a mere declaratory suit under section 42 of the Specific
relief Act.

We do not find instances in England of the writ of mandamus being used to challenge the
validity of departmental regulations. In similar circumstances a declaratory action under the rule
in Dyson's case will be an appropriate remedy. It will be remembered that the Crown is not
amenable to an order of mandamus.,

Summary
To sum up, the judicial control of delegated legislation in India is complete. The constitutional
position of the Judiciary is such that its rights to examine legislation, whether emanating directly
from Parliament or from subordinate authorities, cannot be barred. A law purporting to confer the
status of statutory finality on subordinate legislation would not bind the courts.

On the procedural side, the recently acquired jurisdiction of the High Courts and the Supreme
Court to issue prerogative writs—particularly mandamus—has provided an expeditious remedy to
an aggrieved party to challenge the validity of an ultra vires rule.

But it is submitted that judicial control from its very nature can only be of limited effectiveness.
The courts may step in to prevent the abuse of power or its exercise for purposes other than those
for which it is delegated. Any interference by the courts beyond that will hamper the potentialities
of delegated legislation—a process of undeniable necessity and incontestable usefulness.

Page: 374

Effective control against the abuse of delegated powers of legislation must come from the
Legislature itself, parimarily at the time of delegation, and secondarily in the supervision of the

48
manner in which they are exercised. Equally important is the need for public co-operation in the
rule-making process. In a democratic system the administration must respond to the needs and
views of those whom its rules are going to affect. There is no surer test of the success of a policy
than that it is in tune with the genuine needs of the people, receiving their sympathy, good-will
and satisfaction. Finally, we must devise methods by which the rapidly growing subordinate
legislation shall become easily accessible, in an intelligible manner, to those concerned. All these
have to be done in India to achieve an efficient system of delegated legislation.
———
*
Dean, of the Faculty of Law, Professor of constitutional law and administrative law, Lucknow
University; Project Director of the Institute on ‘The Problem of Delegations’
1
Empress v. Burah and Book Singh, I.L.R. 3 Cal. 63, per Markby J. at 87-8.
2
R. v. Burah, (1877-78) 5 IA 178-194.
3
“The Constitution of India contains express provisions for judicial review of legislation as to its
conformity with the Constitution” per Sastri C.J. in State of Madras v. V.G. Row, AIR 1952 SC
197 at p. 199.
4
Chester v. Bateson, [1920] 1 K.B. 829; R. v. Minister of Health Ex. p. Davis, [1929] 1 K.B.
619; Attorney General v. Wilts United Dairies, (1922) 38 T.L.R. 781.
5
See Articles 13, 32 and 226 of the Constitution of India.
6
AIR 1943 FC 1.
7
AIR 1945 PC 156.
8
(1944-45) 72 IA 241 at 261.
9
[1894] A.C. 347.
10
[1931] A.C. 494.
11
See Municipal Corporation of Rangoon v. The Soobrati Bora Bazaar Co., 5 Rang.
212; State v. A.K. Jain, AIR 1958 MP 162; Cooperative Central Bank v. Benoy, AIR 1954 Cal
371 at p. 379.
12
[1931] A.C. 494.
13
There are certain differences as to the effect of unconstitutionality in the two cases which it is
unnecessary to discuss here.
14
In re Delhi Laws Act, 1951 SCC 568 : AIR 1951 SC 332; Raj Narain Singh v. Chairman, P.A.
Committee, AIR 1954 SC 569; Hari Shanker Bagla v. M.P. State, 1954 S.C. 465; Ram
Jawaya v. State of Punjab, AIR 1955 SC 549.
15
In re Delhi laws Act etc., 1951 SCC 568 : AIR 1951 SC 332, para 246.
16
1951 SCC 568 : AIR 1951 SC 332.
17
AIR 1954 SC 569.

49
18
See Articles 245 and 246 of the Constitution.
19
AIR 1946 Bom 266.
20
The Act, like the present Constitution of India, embodied a scheme of distribution of powers
between the Central and Provincial Governments. See Secs. 99 and 100 of the Govt. of India Act,
1935.
21
Under the Government of India Act, 1935, the subject matter did not belong either to the centre
or the provinces. The question of allotment of the subject was left to the discretion of the Governor-
General. [The difficulty created by this division was met by the passing of the Indian (proclamation
of Emergency) Act, 1945, by the British Parliament. The present constitution provides for
requisition of property in item 33 of List I, items 36 of List II and 43 of List III of the 7th schedule,
Ed.].
22
AIR 1955 SC 435.
23
Art. 13 cls. (1) and (2).
24
1950 SCC 695 : AIR 1951 SC 118.
25
AIR 1954 SC 224.
26
In this case clause 4(3) of the Control Order was also held void as imposing an unreasonable
restriction upon the freedom of trade and business guartanteed under Article 19(1)(g) of the
Constitution and not coming within the protection afforded by clause 6 of the Article. For other
instances of subordinate legislation held ultra vires on constitutional grounds, see R.M.
Seshadri v. Distt. Magistrate Tanjore, AIR 1954 SC 747 and the discussion in R.M.D.
Chamarbaugwalla v. Union of India, 1957 SCJ 593.
27
AIR 1952 Nag 58.
28
e.g. Chester v. Bateson, [1920] 1 K.B. 829.
29
AIR 1952 All 793.
30
AIR 1951 Bom 397.
31
(1944-45) 72 IA 241.
32
AIR 1952 All 843.
33
AIR 1943 Bom 5.
34
AIR 1952 Mad 127.
35
(1952) 2 SCC 590 : AIR 1953 SC 79.
36
Ibid. P. 82.
37
Thus in Perry v. London General Omnibus Co., [1916] 2 K.B. 335 at p. 348, the Court doubted
if in;the absence of an express provision a statutory instrument could repeal or amend an Act of
Parliament.
38
Radhakrishna v. The State, AIR 1952 Nag 367.

50
39
In re Venkataswami, AIR 1950 Mad 308.
40
In an English case, May v. Beattie, [1927] 2 K.B. 353, certain regulations made by the Minister
of Transport under the London Traffic Act, 1924, were challenged on the ground that the Minister
did not comply with the provisions of the Act requiring compulsory consultation with the Statutory
Advisory Committee sitting with the additional members. While the Court held that the regulations
were not of the nature requring the additional members to sit and, therefore, were valid, it was
assumed all along in the judgment that if the regulations had been of the type requiring the sitting
of additional members they would not have been valid unless the required procedure was complied
with. Recently, the Supreme Court expressed the view that if consultaion is optional, an
administrative Act is not rendered invalid in the absence of such consultation. (T.B.
Ibrahim v. Regional Transport Authority, AIR 1952 SC 79, 83).
41
General Clauses Act, 1897, Sec. 23
42
AIR 1955 Cal 451.
43
Storey v. Graham, [1899] 1 Q.B. 406, at p. 412, and Bailey v. Williamson, AIR [L.R.] 8 Q.B.
118. But in 1944 when it was discovered that 23 sets of regulations, some of which had been made
nearly years earlier, had not been laid before Parliament, an indemnity was passed indemnifying
the Secretary of State from all consequencies of the failure to lay the regulations, which were also
declared to be valid. (7 and 8 Geo. 6, c. 38).
44
Metcalfe v. Cox, [1895] A.C. 328.
45
[1945] A.C. 14.
46
Ibid. p. 21.
47
Kruse v. Johnson, [1898] 2 Q.B. 91.
48
[1947] K.B. 736 at pp. 748-49.
49
AIR 1952 Bom 2%.
50
AIR 1952 Mad 127, at 134.
51
AIR 1957 SC 606.
52
Surya Pal Singh v. U.P. Government, AIR 1951 All 674 at 698; Brij Bhushan Lal v. State, AIR
1952 All 868.
53
(1952) 2 SCC 590 : AIR 1953 SC 79.
54
See Article 19, clauses (2) to (6).
55
e.g. Darshan Singh v. State of Punjab, (1952) 2 SCC 578 : AIR 1953 SC 83.
56
Alma Ram v. State of Bihar, AIR 1952 Pat 359.
57
[1911] 1 K.B. 410.
58
Russian Commercial Bank v. British Bank for Foreign Trade, [1921] 2 A.C. 438, at p. 452.

51
59
AIR 1943 FC 29; on appeal to the Federal Court 1943 FCR 72; on appeal to the (1945-46) 73
IA 123, 134.
60
AIR 1953 Cal 695.
61
AIR 1946 Lah 247, at 255-56.
62
Sabapath Singh v. Abdul Gaffar, (1896) 24 Cal. 107; Chairman of Municipal
Commissioners v. Bisseswar Ghose, (1921-22) 26 CWN 92;
Audh Bihari Lal v. Kesari Prasad, (1921) 63 I.C. 6; Satnarain Gurawalla v. Hanuman
Prasad, AIR 1946 Lah 85.
63
Secretary of State v. Subbarao, ILR 58 Mad 758, relying on Robbert Fisher v. Secretary of
State, (1898-99) 26 IA 16.
64
e.g. Kishori Lal v. Begrai, AIR 1952 Punj 367, and P.C. Thevar v. Samban, AIR 1928 Rang
513, relying on the Privy Council decision in Sheo Parasan Singh v. Ram Nandan, 43 Cal.
694. Pollock and Mulla are also of the view that section 42 is exhaustive of the cases in which a
decree that is merely declaratory can be made. (Indian Contract and Specific Relief Act, 6th ed. p.
847). In a very recent decision of the Supreme Court, Basheshar Nath v. I.T. Commissioner, AIR
1959 SC 149, the following obiter suggests that the courts have jurisdiction to grant declaration of
invalidity of statutes:“Even then he might merely obtain a relief declaring the legislation ultra
vires the Constitution and the court would not grant him any consequential relief. For that relief
he would have to approach the regular courts of law, when all questions of law, apart from the
mere constitutionality of the provision would be considered by the court on a contest between the
parties”—per Bhagwati J. at 163.
65
Constitution, Art. 226.
66
Rashid Ahmad v. M.B. Kairana, 1950 SCC 221 : AIR 1950 SC 163.
67
e.g. Chamber of Commerce v. State of U.P., AIR 1955 SC 8; K.C. Gajpati Natain Deo v. State
of Orissa, 1954 SCR 1; Ram Jawaya v. State of Punjab, AIR 1955 SC 549; Ram Prasad v. State
of Bihar, AIR 1953 SC 215.
68
Mst. Govindi v. State of U.P., AIR 1952 All 88; R.M. Shehsdari v. District Magistrate, AIR
1952 Mad 120; Ratan Chandra v. Adhar Biswas, AIR 1942 Mad 840; V. Menon v. Development
Department, AIR 1952 Mad 715.
69
AIR 1951 Nag 58.
70
1950 SCC 833 : AIR 1951 SC 41
71
Surendra v. State of W. Bengal, (1950-51) 55 CWN 255; Sataynor v. Commercial Tax
Officer, (1950-51) 55 CWN 583.
72
Sheo Shanker v. State, AIR 1951 Nag 58.
73
F.N. Balsara v. State, AIR 1951 Bom 10; on appeal, 1951 SCC 860 : AIR 1951 SC 318

© 2024 EBC Publishing Pvt. Ltd., Lucknow

52
 Unit III – Natural Justice

After this unit, you will be able to:

- Analyse the concept of natural [Read the following para from Halsbury for a brief
justice overview]
- Understand and apply the
The principles of natural justice are a part of the legal and
principles against Bias
- Understand and apply ‘Audi
judicial procedures. Natural justice comprises two
Alterum Partem’. concepts: (1) right to fair hearing, that is, audi alteram
- Assess the effect of breach of partem, and (2) the rule against bias, that is, nemo debit
natural justice principles esse judex in propria causa. Natural justice is an
- Understand situations where important procedural safeguard against any
natural justice principles can discrimination, or arbitrary, wrong or undue use of
be excluded administrative powers. Every case has to be considered
on its own merits in order to decide whether in taking a
particular action, the administration should give a hearing to the affected party.

The term ―Principles of Natural Justice- derived from the expression „Jus Natural” of the Roman
Law, does not have force of law as they may or may not form part of statute but they are necessarily
to be followed. The adherence to principles of natural justice as recognized by all civilized States
is of supreme importance when a quasijudicial body embarks on determining disputes between the
parties, or any administrative action involving civil consequences is in issue. These principles are
well settled.
Principles of natural justice are those rules which have been laid down by the Courts as being the
minimum protection of the rights of the individual against the arbitrary procedure that may be
adopted by a judicial, quasi-judicial and administrative authority while making an order affecting
those rights. These rules are intended to prevent such authority from doing injustice. 4. The rules
of natural justice do not supplant the law of the land but only supplement it. It is now firmly
established that in the absence of express provisions in any statute dispensing with the observance
of the principles of natural justice, such principles will have to be observed in all judicial, quasi-
judicial and administrative proceedings which involve civil consequences to the parties. (A.K
Kraipak vs. Union of India (AIR 1970 S.C.150) & Maneka Gandhi (AIR 1978 S.C.597). 5. Natural
justice is the essence of fair adjudication, deeply rooted in tradition and conscience, to be ranked
as fundamental. The purpose of following the principles of natural justice is the prevention of
miscarriage of justice.
6. Natural Justice recognizes three principles: (i) Nemo debet essc judex in propria causa. (ii) Audi
alterem partem, and (iii) Speaking orders or reasoned decisions. The first two have come to us
from the Roman Law and the third one is a recent Innovation due to the rapid development of the
constitutional as well as administrative law. Nemo debet essc judex in propria causa 7. The first
principle of impartiality roughly translated into English means nobody shall be a judge in his own
cause or in a cause in which he is interested. This principle is more popularly known as the
Doctrine of Bias. That is the authority sitting in judgment should be impartial and act without bias.
To instill confidence in the system, justice should not merely be done but seen to be done. Bias:
Pecuniary Bias 8. Bias can be categorized in three categories namely pecuniary, personal and
53
official. It is obvious that decision of the adjudicator would be affected if he is having pecuniary
interest in the subject matter of the proceedings. In Mohapatra vs. State of Orissa (AIR 1984 S.C.
1572), it was held that when the author of a book was a member of the committee set up for
selection of books, and his book was also under consideration by that committee, the possibility
of bias could not be ruled out and the selection by that committee cannot be upheld. Thus, in
addition to the direct personal interest, the test laid down by the court is to consider the real
likelihood of bias. In other words, probability of bias is sufficient to invalidate the right to sit in
judgment and there is no need to have the proof of actual bias. Personal bias may arise out of
friendship, relationship. professional grievance or even enmity. Here again likelihood of bias is to
be given more credence.

10. The third type of bias, namely, official bias may arise in cases where an administrator who
enunciates, and then has to carry out an official policy, is entrusted with the duty of hearing
objections from the concerned persons as to the implementation of the policy. Here the general
rule is that the bias that may be said to be likely to arise because the adjudicator has a general
interest in the subject matter and administration of the policy in his official capacity, would not
operate as a disqualification. The mere fact that the Registrar of Cooperative Societies has a power
of general supervision over all Co-operative Societies, does not amount to inherent bias in him so
as to disqualify him for the purpose of acting as an arbitrator or judge under Section 18 of the
Rules made under the Co-operative Societies /Act 1912 to decidedisputes between members of a
Society (Viraj vs. State of Orissa 1967 SC 158). Thus, no official bias arises while senior officers
adjudicate the Customs or Central Excise or Service Tax cases even though the investigations in
the case might have been conducted by their subordinates. Audi alterem partem 11. The second
principle of natural justice literally means ―to hear the other side‖. This is necessary for providing
a fair hearing and no doubt the rule against bias would also be a part of the procedure. A corollary
has been deduced from the above two rules and particularly the audi alteram partem rule, namely
‗qui aliquid statuerit parte inaudita alteram actquam licet dixerit, haud acquum facerit‘ that is, ‗he
who shall decide anything without the other side having been heard, although he may have said
what is right, will not have been what is right‘ or in other words, as it is now expressed, ‗justice
should not only be done but should manifestly be seen to be done‘.

13. It says that no one should be condemned unheard. Notice is the first limb of this principle. It
must be precise and unambiguous. It should appraise the party determinatively the case he has to
meet. Time given for the purpose should be adequate so as to enable him to make his
representation. In the absence of a notice of the kind and such reasonable opportunity, the order
passed becomes wholly vitiated. Thus, it is but essential that a party should be put on notice of the
case before any adverse order is passed against him. This is one of the most important principles
of natural justice. It is after all an approved rule of fair play. 14. When it is said that hear the other
side. It means that hearing should not be reduced to mere formality and it does not remain confined
to only auditory hearing. It should be effective hearing. The principle or effective hearing embraces
a larger sphere and includes the following essential aspects :- Issuance of Notice (a) Prior notice
of decision making:- Giving of a valid notice to the proper or concerned person of the facts of the
matter and nature of the action proposed to be taken is a sine qua non of a fair hearing. Notice is
to be given even if the statute does not contain any provision for the issue of a notice (Fazalbhai

54
Vs Custodian AIR 1961 SC 284). However, if the statute specifically waives giving of the notice
then no notice need be given as the rules of natural justice do not supplant the law. Courts have
also held that submission of suo moto revision or the claim that there can be no defence to the
action proposed cannot justify department i.e. from this requirement of natural justice (Olga Tellis
vs BMC AIR 1986 SC 180).
Right to make Representation (f) The right to make representation requires that the person
proceeded against must have opportunity to peruse all material relied upon. Copies of such material
should be furnished free of charge without being demanded and even in those cases where the
documents having been seized from the party, are relied upon. Furnishing of these copies would
include copies of test reports, trade opinions, international price publications, etc. Reliance of any
document or material without furnishing the above requisites would render the ultimate decision
bad for failure of natural justice.In Kothari Filaments vs Commissioner of Customs (Port) Kolkata
(Citation:- 2009 (233) ELT 289 (SC) ), an order was passed with reference to an overseas enquiry
report which was not supplied to the party. SC found the order to be violation of principles of
natural justice, further imposing a fine of Rs. 25000 on the department.
Issuance of Speaking Orders or Reasoned Decision The third aspect of natural justice requires
speaking orders or reasoned decisions. It is now universally recognized that giving reasons for a
certain decision is one of the fundamentals of good administration and a safeguard against
arbitrariness. The refusal to give reasons may excite the suspicion that there are probably no good
reasons to support the decision. Hence reasons are useful as they may reveal an error of law, the
grounds for an appeal or simply remove what might otherwise be a lingering sense of injustice on
the part of the unsuccessful party. When the order to be passed is an appealable order, the
requirement of giving reasons would be a real requirement. Thus, reasons are also required to be
given when the appellate or revisionary authority affirms the order of the lower authority.

[Read the following text(from 338_Introduction_To_Law_Eng_L6.pdf (nios.ac.in) for a brief

overview of the exclusion of natural justice]

Application of the Principles of Natural Justice can be excluded either expressly or by necessary
implication subject to the provisions of Articles 14 and 21 of the Constitution. Therefore, if the
Statute, expressly or by necessary implication, precludes the rules of natural justice it will not
suffer invalidation on the ground of arbitrariness. 6.5.1 Exclusion in Emergency In exceptional
cases of emergency where prompt preventive or remedial action, is needed, the requirement of
notice and hearing may be obviated. Such as, in situations where a dangerous building is to be
demolished, or a company has to be wound up to save depositors. However, the administrative
determination of an emergency situation calling for the exclusion of rules of natural justice is not
final. The courts may review the determination of such a situation. Natural Justice is pragmatically
flexible and is amenable to capsulation under compulsive pressure of circumstances. It is in this
context that the Supreme Court observed: “Natural Justice must be confined within their proper
limits and must not be allowed to run wild. The concept of Natural Justice is a magnificent
thoroughbred on which this Nation gallops forward towards its proclaimed and destined goal of
justice social, economic and political.

55
6.5.2 Exclusion in Cases of Confidentiality In a case the Supreme Court held that the maintenance
of surveillance register by the police is a confidential document. Neither the person whose name
is entered in the register nor any other member of the public can have access to it. Furthermore,
the court observed that the observance of the principles o natural justice in such situation may
defeat the very purpose of surveillance and Techniques of Law there is every possibility of the
ends of justice being defeated instead of being served. Same principle was followed in S.P. Gupta
v. Union of India where the Supreme Court held that no opportunity of being heard can be given
to an Additional Judge of a High Court before his name is dropped from being confirmed. It may
be pointed out that in a country like India surveillance may provide a very serious constraint on
the liberty of the people, therefore, the maintenance of the surveillance register cannot be so utterly
administrative and non-judicial that it is difficult to conceive the application of the rules of natural
justice.
6.5.3 Exclusion in case of routine matters A student of the university was removed from the rolls
for unsatisfactory academic performance without giving any pre-decisional hearing. The Su-preme
Court held that the very nature of academic adjudication appears to negative any right of an
opportunity to be heard. Therefore if the competent academic authorities examine and assess the
work of a student over a period of time and declare his work unsatisfactory, the rules of natural
justice may be excluded. In the same manner when the Commission cancelled the examination of
the candidate because, in violation of rules, the candidate wrote his roll number on every page of
the answer, the Supreme Court held that the principles of natural justice are not attracted. Court
observed that the rule of hearing is strictly construed in academic discipline as if this is ignored it
will not only be against public interest but would also erode social sense of fairness. However, this
exclusion shall not apply in case of disciplinary matters or where the academic body permits non-
academic circumstances.
6.5.4 Exclusion Based on Impracticability Rules of Natual Justice may be exluded on the grounds
of administrative impracticability. For example in a case where the entire M.B.A. entrance
examination was cancelled by the university because of mass copying, the court held that notice
and hearing to all the candidates is not possible in this situation, which has assumed national
proportions. Thus the court sanctified the exclusion of the rules of natural justice on the ground of
administrative impracticability. 6.5.5 Exclusion in Cases of Interim Preventive Action If the action
of the administrative authority is a suspension order in the nature of a preventive action and not a
final order, the application of the principles of natural justice may be excluded. In a case where
the institution passed an order debarring the student from entering the premises of the institution
and from attending classes till the pendency of a criminal case against him for stabbing a co-
student. The Delhi High Court held that such an order could be compared with an order of
suspension pending enquiry which is preventive in nature in order to maintain campus peace and
hence the principles of natural justice shall not apply. Therefore, natural justice may be excluded
if its effect would be to stultify the action sought to be taken or would defeat and paralyse the
administration of the law. The Supreme Court in Maneka Gandhi v. Union of India observed :
“Where an obligation to give notice and opportunity to be heard would obstruct the taking of
prompt action, especially action of a preventive or remedial nature, right of prior notice and
opportunity to be heard may be excluded by implication.”

56
6.5.6 Exclusion in Cases of Legislative Actions Legislative action, may be plenary or subordinate,
is not subjected to the rules of natural justice because these rules lay down a policy without
reference to a particular individual. On the same logic principles of natural justice can also be
excluded by a provision of the Constitution also. Constitution of India excludes the principles of
natural justice in Articles 22, 31(A), (B), (C) and 311(2) as a matter of policy. Nevertheless if the
legislative action is arbitrary, unreasonable and unfair, courts may quash such a provision under
Articles 14 and 21 of the Constitution. In a case the Supreme Court held that no principles of
natural justice have been violated when the government issued notification fixing the prices of
certain drugs. The Court reasoned that since notification flowed from a legislative act and not an
administrative one so the principles of natural justice do not apply.
6.5.7 Where No Right of the Person is Infringed Where no right has been conferred on a person
by any statute nor any such right arises from common law, the principles of natural justice are not
applicable. This can be illustrated by referring a decision of the Supreme Court The Delhi Rent
Control Act makes provision for the creation of limited tenancies. Sections 21 and 37 of the Act
provide for the termination of limited tenancies. Combined effect of these sections is that after the
expiry of the term a limited tenancy can be terminated. The Supreme Court held that after the
expiry of the prescribed period of any limited tenancy, a person has no right to stay in possession
and hence no right of his is prejudicially affected which may warrant the application of the
principles of natural justice.
6.5.8 Exclusion in Case of Statutory Exception or Necessity Techniques of Law Disqualification
on the ground of bias against a person will not be applicable if he is the only person competent or
authorized to decide that matter or take that action. If this exception is not allowed there would be
no other means for deciding that matter and the whole administration would come to a grinding
halt. But the necessity must be genuine and real. Therefore, the doctrine of necessity cannot be
invoked where the members of the Text Book Selection Committee were themselves the authors
because the constitution of the selection committee could have been changed very easily by the
government.
6.5.9 Exclusion in Case of Contractual Arrangement In a case the Supreme Court held the
principles of natural justice are not attracted in case of termination of an arrangement in any
contractual field. Termination of an arrangement/agreement is neither a quasi-judicial or an
administrative act so that the duty to act judicially is not attracted.

57
 Unit IV

After this unit you will be able to:

[See the following extract from PRS research on
- Define a tribunal and administrative tribunals in India]
distinguish it from a court
- Understand the scope of
administrative adjudication in
Tribunals are institutions established for discharging
India
- Critically examine the position judicial or quasi-judicial duties. The objective may
of tribunals in Indian judicial be to reduce case load of the judiciary or to bring in
hierarchy. subject expertise for technical matters.
- Understand ‘State Liability’
- Examine judicial remedies
- Understand salient features of
RTI. The Supreme Court has ruled that tribunals, being
quasi-judicial bodies, should have the same level of
independence from the executive as the judiciary. Key factors include the mode of selection of
members, the composition of tribunals, and the terms and tenure of service.

In order to ensure that tribunals are independent from the executive, the Supreme Court had
recommended that all administrative matters be managed by the law ministry rather than the
ministry associated with the subject area. Later, the Court recommended creation of an
independent National Tribunals Commission for the administration of tribunals. These
recommendations have not been implemented.

Whereas the reasoning for setting up some tribunals was to reduce pendency of cases in courts,
several tribunals are facing the issue of a large case load and pendency.
Evolution of the Tribunal System

Tribunals are judicial or quasi-judicial institutions established by law. They intend to provide a
platform for faster adjudication as compared to traditional courts, as well as expertise on certain
subject matters.1, Pendency of cases in courts is one of the key challenges faced by the judicial
system., As of June 6, 2021, there are 91,885 cases pending for more than 30 years in different
High Courts of India. As of May 1, 2021, there are 67,898 pending cases in the Supreme Court
The Law Commission of India (2017) noted that pendency in courts leads to delays in the
administration of justice, thereby, impacting efficiency of the judicial system. Further, it noted
that in certain technical cases, the traditional courts need expert knowledge for adjudication.

58
This note discusses the tribunal system in India in terms of its evolution, administration,
functioning, and the reforms suggested to improve their functioning. In 1976, Articles 323A and
323B were inserted in the Constitution of India through the 42nd Amendment. Article 323A
empowered Parliament to constitute administrative Tribunals (both at central and state level) for
adjudication of matters related to recruitment and conditions of service of public servants.
Article 323B specified certain subjects (such as taxation and land reforms) for which Parliament
or state legislatures may constitute tribunals by enacting a law. In 2010, the Supreme Court
clarified that the subject matters under Article 323B are not exclusive, and legislatures are
empowered to create tribunals on any subject matters under their purview as specified in the
Seventh Schedule of the Constitution.

Currently, tribunals have been created both as substitutes to High Courts and as subordinate to
High Courts (see Figure 1). In the former case, appeals from the decisions of Tribunals (such as
the Securities Appellate Tribunal) lie directly with the Supreme Court. In the latter case (such as
the Appellate Board under the Copyright Act, 1957), appeals are heard by the corresponding
High Court.

The tribunal system has developed as a parallel to the traditional court system over the last eighty
years. The Income Tax Appellate Tribunal was created in 1941 to reduce pendency of cases in
courts.1 After the insertion of Articles 323A and 323B, several tribunals such as the Central
Administrative Tribunal as well as sector specific tribunals were set up from the 1980s to 2010s.
The Finance Act, 2017 consolidated several tribunals. In 2021, a Bill has been introduced that
abolishes nine tribunals and transfers the matters to courts.

Table 1: Key developments in Indian tribunal system

1941

The Income Tax Appellate Tribunal was established as the first Tribunal in India. The
objective was to reduce the workload of courts, expedite adjudication of disputes, and build
expertise on tax matters within the Tribunal.1
1969

The First Administrative Reforms Commission recommended that the central government should
set up Civil Services Tribunals at the national level and state levels. These Tribunals would be

59
the final appellate authority for adjudicating on matters related to dismissal, removal from
service, and reduction in rank of civil servants.[8]
1974

The Sixth Law Commission (1974), recommend setting up a separate high-powered tribunal and
commission for adjudication of matters in High Courts. This was aimed at reducing arrears of
cases in the High Courts.[9]
1976

The Swaran Singh Committee (1976) noted that the High Courts were burdened with service
cases by public servants.[10] It recommended setting up: (i) administrative tribunals (both at
national level and state level) to adjudicate on matters related to service conditions, (ii) an all-
India Appellate Tribunal for matters from labour courts and industrial tribunals, and (iii)
tribunals for deciding matters related to various sectors (such as revenue, land reforms, and
essential commodities). It further recommended that the decisions of the tribunals should be
subject to scrutiny by the Supreme Court.10

The 42nd amendment to the Constitution was passed. The amendment empowered Parliament to
constitute: (i) administrative tribunals (both at central and state level) for adjudication of matters
related to recruitment and conditions of service of public servants, and (ii) other tribunals for
adjudication of certain subject matters including industrial disputes, taxation (such as levy and
collection of taxes), and foreign exchange.[11]
Since the 1980s

Several tribunals were established under different Acts.

These include the Central Administrative Tribunal for administrative matters, the Securities
Appellate Tribunal to hear appeals against decisions of financial sector regulators, an Appellate
Tribunal where decisions of the Central Film Certification Board could be challenged, and an
Appellate Tribunal for Electricity to hear tariff issues.
2017

The Finance Act, 2017 reorganised the tribunal system by merging tribunals based on functional
similarity.8 The number of Tribunals was reduced from 26 to 19.[12],[13] It delegated powers

60
to the central government to make Rules to provide for the qualifications, appointments,
removal, and conditions of service for chairpersons and members of these tribunals.8
2021

The Tribunals Reforms (Rationalisation and Conditions of Service) Bill, 2021 was introduced in
Lok Sabha in February.[14],[15] As the Bill was pending at the end of the session, an Ordinance
with similar provisions was promulgated in April 2021. They abolish nine tribunals and transfer
their functions to existing judicial bodies (mainly High Courts).

Structure of Tribunal system in Australia, France, United Kingdom, and United States of
America

Australia: Tribunals in Australia deal with administrative and civil matters. Appeals against
most tribunals lie with the Court of Appeal.1,[16] The Court of Appeal is a division of the
Supreme Court of Australia.[17]

France: France has a dual legal system which classifies courts into judicial courts (dealing with
private law) and administrative courts (dealing with public/administrative law).23,[18] France
has a three-tier tribunal system within the category of administrative courts.18 The first tier is
Tribunal Administratif (Administrative Court), which has jurisdiction covering all administrative
matters. The appeals against Tribunal Administratif lie to Cour Administrative d’appeal
(Administrative Court of appeal). The third tier is the Counseil d’Etat, which finally
adjudicates on appeals against the first and second tier. The appellate courts do not have
jurisdiction of judicial review over subordinate courts.18

United Kingdom: United Kingdom has a two-tier tribunal system, which consists of: (i) a First
Tier Tribunal, and (ii) an Upper Tribunal. The appeals against the First Tier Tribunal lie with the
Upper Tribunal. Within the First Tier Tribunal there are several Chambers with jurisdiction over
different subject matters. For example, the Tax Chamber has jurisdiction over matters related to:
(i) direct and indirect taxation, and (ii) expenses of Members of Parliament.[19]
Appeals from the Upper Tribunal lie to the Court of Appeal. The Court of Appeal is the second
highest court after the country’s Supreme Court. There is a separate tribunal for employment
related matters called Employment Appeals Tribunal. The appeals of this tribunal lie to the
Court of Appeal. The administration of all courts and tribunals is managed by a separate
organisation called Her Majesty’s Courts and Tribunals Service (HMCTS).

61
United States of America: In the United States of America, tribunals are empowered to exercise
only quasi-judicial functions related to administrative actions. The country’s Constitution does
not allow vesting judicial powers in a body which is not a court. The decisions of these
administrative tribunals are subject to judicial review by courts having jurisdiction over them.1

Key Issues

There are two major issues related to the working of tribunals. First, as quasi-judicial bodies,
whether they have the same degree of independence from the Executive as the courts that they
replace. Second, the level of their success in achieving quicker decision on disputes. In
addition, their place within the constitutional scheme has been questioned. The Supreme Court
has examined some of these issues and laid out some principles. Table 2 summarises some of
these judgements.

Key Supreme Court judgements related to tribunals

S. P. Sampath Kumar Etc. versus Union of India and Ors., 1986[20]

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.

L. Chandra Kumar versus Union of India and Ors, 1997[21]

62
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)

R. Gandhi versus Union of India & Anr, 20107

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.

Madras Bar Association versus Union of India & Anr, 2014[22]

63
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.

Rojer Mathew versus South Indian Bank Limited & ors, 2019[23]

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.

Madras Bar Association versus Union of India, 2020[24]

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).

Madras Bar Association versus Union of India, 2021[25]

64
The Court struck down provisions related to the four-year tenure and minimum age requirement
of 50 years for members.

Constitutional foundation and competence of tribunals

The constitutional standing of tribunals has been questioned. In particular, whether the
jurisdiction of High Courts and Supreme Court can be removed. In 1986, the Supreme Court
ruled that Parliament may create an alternative to High Courts provided that they have the same
efficacy as the High Courts.20

In 1997, the Supreme Court ruled that such Tribunals may decide questions on constitutional
validity of statutory provisions.21 However, they will be considered as a supplement rather than
as substitutes to High Courts on such matters.21 Thus, their decisions on such matters may be
examined by a division bench of the High Court. Further, the Supreme Court stated that
tribunals must not adjudicate on questions related to the constitutionality of their parent statutes.
Such matters must be adjudicated directly by High Courts.21

Independence of tribunals

In 2010, the Supreme Court noted that the tribunals in India have not achieved complete
independence.[26] In 2014, the Supreme Court while reviewing the National Tax Tribunal Act,
2005 stated that when a tribunal is vested with jurisdiction of High Courts, the tribunal must be
free from executive interference.22 Any involvement of the central government in
administrative activities of tribunals (such as sanctioning leave for members) would affect their
independence.22 The components which determine the independence of tribunals include: (i)
selection process of the members, (ii) composition of the tribunals, and (iii) terms of office and
service conditions of the members.22

Selection process of members: In 1986, while reviewing the Administrative Tribunal Act, 1985
the Supreme Court stated that the total insulation of the judiciary from all forms of interference
from the executive is a basic essential feature of the Constitution.20 Thus, empowering the
central government to appoint the Chairperson and other members of a Tribunal established as a
substitute of a High Court, violates the independence of judiciary.20 In 2019, the Supreme Court
reiterated that the lack of judicial dominance in the selection committees of tribunals violates the
65
doctrine of separation of powers and is an encroachment on the judicial domain.23 Further, the
Court clarified that the Executive is often a party in litigations and hence, they should not be
allowed to be a dominant party in judicial appointments.23 The mechanism for appointment and
removal of members in tribunals, and tenure of their employment should have adequate
protection from legislative and executive interference.23
In November 2020, the Court specified that selection committees of tribunals should consist of:
(i) the Chief Justice of India or his nominee (with a casting vote), (ii) the presiding officer of the
tribunal or a retired Supreme Court judge or Chief Justice of High Court in case the presiding
officer is not a judicial member or if he is seeking re-appointment, (iii) Secretary to the Ministry
of Law and Justice, (iv) Secretary to central government from non-parent Ministry, and (v)
Secretary from parent Ministry (without a vote).24

Composition of Tribunals: The Supreme Court has noted that the members of a tribunal may be
selected from departments of the central government as well as from various other fields of
expertise.21 The presence of expert members (technical members) along with judicial members
is a key feature of tribunals which distinguishes them from traditional courts.7 Only persons
with a judicial background (such as Judges of the High Court and lawyers with the prescribed
experience who are eligible for appointment as High Court Judges) may be considered for
appointment as Judicial Members.7
The Supreme Court specified that there is no need of a technical member if jurisdiction of courts
is transferred to tribunals to achieve expeditious disposal of matters.7 In such cases, any
provision for technical members in addition to or in substitution of judicial members would
clearly be a case of dilution and encroachment upon the independence of the judiciary.7,22,23
Further, where a tribunal has technical members, the technical member must always sit with a
judicial member in a two-member bench.7 In case of a larger bench, the number of non-judicial
members must not exceed the judicial members.7

Term of office: In 2019, the Supreme Court stated that a short tenure of members (such as three
years) along with provisions of re-appointment increases the influence and control of the
Executive over the judiciary.23 Moreover, in such short term of office, by the time the members
achieve the required knowledge, expertise and efficiency, one term gets over.22 This prevents
enhancement of adjudicatory experience, thereby, impacting the efficacy of tribunals.23 Further,
it discourages meritorious candidates from applying for such positions as they may not leave
their well-established careers to serve as a member for a short period.23 In 2020, the Supreme
Court stated that the term of office for the Chairperson and other members must be five years
(subject to a maximum age limit of 70 years for the Chairperson and 67 years for other
members).24

66
Administration of Tribunals: In 1997, the Supreme Court recommended setting up an
independent mechanism for uniform management of appointments and administration of
tribunals. The Court specified that 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).21
Subsequently, in 2014, the Court specified that administrative support for all tribunals should be
from the Ministry of Law and Justice.22 It further specified that neither the Tribunals nor their
members must seek or be provided with facilities from the respective parent Ministry or
concerned Department.22
The Standing Committee on Personnel, Public Grievances, Law and Justice (2015)
recommended creation of an independent body called the National Tribunals Commission (NTC)
for administration of all tribunals in India.[27] In 2020, the Supreme Court also emphasised on
creating the NTC to supervise appointments, as well as functioning and administration of
tribunals. However, till now, the NTC has not been created.

[Read the following article on State Liability after Rudul Shah case]

43 JILI (2001) 559 A

State Liability : A New Dimension from Rudul Sah

STATE LIABILITY : A NEW DIMENSION FROM RUDUL SAH

by
Surendra Yadav*

I Introduction

THE LIABILITY of the state for wrongful acts of its employees has assumed importance in the
present context. State has been defined in article 12 of the Constitution of India, which means the
union government or provincial government or any other local authority. In democracy, the state
performs innumerable functions for the welfare of its citizens. In the exercise of these functions,
any misuse of power by the government servants may cause injury to person or property of the
citizens. Sometimes even the fundamental rights are attacked. Such a situation calls for an adequate
mechanism for determining the state liability and compensating the victim. It is, however, strange
that the state itself has not bothered to enact a law for determining the citizens' claims against it.
Indian judiciary has taken an onerous task by evolving in its own way some principles for meeting
with the aforesaid situation. An attempt is made here to evaluate the judicial response with focus
on the conflict between the individual and the state.

67
 II Tortious liability of the state

English common law immuned the crown from the jurisdiction of courts following the famous
old doctrine ‘King can do no wrong’. This sovereign immunity came to an end by passing of
legislation1 in England. Such statute was not extended to India. Article 300 of the Constitution of
India says that the government of a state may sue or be sued by the name of that state. The
Constitution does not directly tell the extent of the liability in the matters of tortious actions of
government employees. It only declares that the liability of the union or state government in the
matters of tort is the same as was that of the dominion or East India Company before the
Constitution2. The first leading case on the point is P & O Steam Navigation Co. v. Secretary of
State for India3,

Page: 560

where a servant of the plaintiff company was travelling in a horse-van and an accident took place
in a government dockyard. Some government workmen employed there were carrying an iron-rod
for the purpose of repairing a steamer. They were going in the middle of the road. The horse-van
driver slowed its speed and gave horn to these men. Instead of giving the way to the van, they
suddenly dropped the iron-rod and ran away. Due to this one of the horses was seriously injured
and the plaintiff company filed a suit against the secretary of state for the damages for injury to its
horse caused by the negligence of the servant of East India Company, i.e. the government.

The court held the secretary of state for India liable for the damage caused by the negligence of
government servants, because the negligent act was not done in the exercise of a sovereign
function. Chief Justice Peacock, who delivered the judgment, made a distinction between acts done
in exercise of ‘sovereign power’ and acts done in the exercise of ‘non-sovereign power’. The latter
acts are those which might be carried on by the private individuals also, not having sovereign
power.

The East India Company had a two-fold character : (a) as a sovereign ruler, and (b) as a trading
company. The liability of the company could arise only in respect of its trading actions done in the
exercise of non-sovereign power and not in respect of the acts done by it in exercise of the
sovereign power. As the maintenance of dockyard could be done by any private person also, it was
treated a non-sovereign function and hence the government was liable for the tortious action done
by its employees.

Our Supreme Court held the state vicariously liable by following the above case in State of
Rajasthan v. Vidhyawati4, as a government jeep driver killed the plaintiff's husband in an accident

68
and it was treated as a non-sovereign function. But in Kasturi lal Ralia Ram Jain v. State of U.P.5,
the state was immuned from liability for the tortious act done by its policemen, who caught the
plaintiff under suspicion during night and put him in lock-up. The gold and silver seized from him
was kept in malkhana. Later the plaintiff was proved innocent and he demanded his property back.
But the gold was missing, perhaps taken away by the policeman in charge of
malkhana. Unfortunately the state succeeded in getting sovereign immunity as the apex court came
to the conclusion that the tortious act was done in the exercise of a sovereign function. Justice P.B.
Gajendragadkar, C.J., felt helpless and called on the government of India to enact a law in this
field. The state liability bill was introduced in the Parliament in 1967, but it remained as a bill and
could never be passed. Thus a chance of codifying the law of torts with regard to state acts was

Page: 561

lost. The Kasturilal decision has been criticized on many counts6. One reason sounds good that
the taking care of the property seized and duty to return the same is just like the duty of a statutory
or contractual bailee and cannot fall within the sovereign powers7.

III Emerging compensatory trend : death of sovereign immunity

In Bhagalpur Blinding cases8, once again the Supreme Court got the opportunity to discuss
whether the state is liable for blinding of prisoners in Bhagalpur by its prison officials. This
inhuman act was treated as violation of the fundamental right to life guaranteed under article 21 of
the Constitution. Conceding the state liability, the court directed the state of Bihar to provide them
the best treatment at state cost. Therefore, all the blinded prisoners were sent by the Bihar
government to the All India Institute of Medical Sciences, New Delhi. In this way the medical
relief at state's cost was granted for an action done in the exercise of sovereign function.

Then came the case of Rudul Sah9, in which the apex court evolved a new remedy of providing
compensation to the victims of tortious acts done by government employees during sovereign
functions. In this case, the petitioner had already completed his sentence and the prison officials
did not take care to release him. He was kept in illegal incarceration for many years and the hon'ble
Supreme Court awarded Rs. 35,000/- as compensation to the poor victim. Chief Justice
Chandrachud categorically said that the state must repair the damage done by its officials to the
petitioner. This right to compensation is in the nature of palliative for the unlawful acts of
instrumentalities who act in public interest and put for their protection the state's sovereign powers
as their shield. In another case Sebstian. M. Hongray v. Union of India10, two Christian priests
were called for interrogation in an army camp. Thereafter, they could not be found and on the basis

69
of letters of their wives, the apex court issued the habeas corpus writs to produce them before it.
As they could not be produced, their death was presumed to be caused by army officials and for
which each of the wives was awarded Rs. 1,00,000/- as exemplary damages under article 32 in a
PIL petition. Again here we see that the union government was asked to pay compensation for an
act done by its employees in the exercise of sovereign function.

Page: 562

It is generally seen that the police officials violate the protections available to arrested persons
under the Constitution11 and the Criminal Procedure Code12. The Supreme Court felt shocked
when it learnt that a member of the legislative assembly of Jammu and Kashmir was wrongfully
arrested with the sole object of stopping him to attend the session13. As per rules he could have
been arrested only when there would have been any charge of committing offence upon him and
that too with the permission of the Speaker. Neither the police sought this permission nor he was
produced before any magistrate within the required period, though the police remand was taken.
The apex court treated it as a gross violation of fundamental rights under articles 21 and 22 and
following the previous two cases14, awarded Rs. 50,000/- as compensation to the detained MLA
in Bhim Singh v. State of J & K15. Any order of release was of no meaning for Mr. Bhim Singh
because he had already been released. Therefore, to safeguard the civil liberties an order of this
nature for giving lesson to the state was given so that their employees do not commit tortious acts
in the garb of sovereignty.

The conflict between the concepts of sovereign immunity and personal liberty was considered
by the Andhra Pradesh High Court in detail in Challa Ramkonda Reddy v. State of A.P.16. In this
case the compensation was claimed for the death of an under trial prisoner in jail, who had
informed the prison officers about the risk to his life and the threats received by him. In spite of
that, the prison administration didn't bother to take steps to increase his security. It was found that
even on the day when some outsiders attacked on the jail and this prisoner, some of the regular
guards were on leave or absent from duty. The hon'ble high court treated it as a failure or
negligence to guard the prison properly and ensure safety to the prisoners on the part of the jail
officials.

The court opined that personal liberty should be given supremacy over sovereign immunity. It
held that when a citizen is deprived of his life or liberty, otherwise than in accordance with the
procedure established by law, it is no answer to say that the said deprivation was done by the

70
employees of the state in the due discharge of their sovereign functions17. Kasturilal18 was decided
following the stand taken by the apex court in

Page: 563

the Rudul Sah19 and the Blum Singh20 cases. The high court was thus right in directing the state of
Andhra Pradesh to pay Rs. 1,44,000/- as compensation so that personal liberty under article 21 is
upheld and the defence of sovereign immunity is negatived.

It was unfortunate on the part of the state of Andhra Pradesh that instead of paying the above
compensation, its officers decided to make an appeal to the Supreme Court. The high court verdict
was upheld and the civil appeal of the state was dismissed in State of A.P. v. Challa Ramkrishna
Reddy21 by the apex court saying that the fundamental rights include basic human rights. Right to
life is one such right available to a prisoner, whether he be a convict or under trial or a detenue.
Such rights cannot be defeated by pleading the old and archaic defence of sovereign immunity
which has been rejected several times by the Supreme Court22.

Another case in which the question of sovereign immunity was considered is that
of Saheli v. Commr. of Police23, where the illegal acts of Delhi policemen were brought to the
notice of the court by a women organisation. A lady tenant was harassed by a landlord in
conspiracy with the police so that she vacates his house. She was attacked and molested with the
help of police officials. She was implicated in false cases and called to police station where her
nine years old son was slapped and beaten for intervening in between them. After a few days this
boy died, for which exemplary damages were claimed to compensate the poor lady by a Delhi
women organisation in public interest. The court rejected the defence of sovereign immunity laid
down in Kasturi Lal24 and directed the state to pay Rs. 75,000/- to the mother of the deceased
child25. The court clearly stated that it is now well settled that the state is liable for all the tortious
acts of its employees, whether done in the exercise of sovereign function or non-sovereign
function. There will also be no distinction between the cases violating the fundamental rights or
ordinary legal rights.

Nilabati Behera v. State of Orissa26 is yet another case of police atrocity, where the deceased
was caught by police and kept in custody for a day and next day his dead body was found on the
railway track with multiple injuries. The police tried to make a story that he ran away from the
prison and committed suicide. The court did not believe on the police

Page: 564

71
enquiry and observed that it must have been independently conducted by the District Magistrate
himself or through some independent agency. In such circumstances the burden lies on the state to
show how the death was caused. Invoking its judicial activism, the apex court observed that it
could evolve new tools and provide remedy in cases of the violation of the fundamental rights,
especially of have-nots. Since the state could not prove its innocence, the death was presumed to
be caused by the state employees. The defence of sovereign immunity was not allowed and a
compensation of Rs. 1,50,000/- was awarded rightly as per the trend developed through the case
law.

IV No distinction between sovereign & non-sovereign

In N. Nagendra Rao & Co. v. State of A.P.27, the Supreme Court has held that when a citizen
suffers any damage due to the negligence of the employees of the state, the latter is liable to pay
damages and the defence of sovereign immunity will not absolve it from this liability. It was held
that in the modern context, the concept of sovereign immunity stands diluted and the distinction
between sovereign and non-sovereign functions no longer exists.

The appellant in the above case was carrying on business in fertilisers and food grains legally.
His premises were inspected and goods were seized under Essential Commodities Act. On
29.6.1976, the proceedings terminated in his favour and confiscation order was quashed. The
collector directed the release of the stock, but the subordinates delayed it due to which the goods
were spoilt both in quality and quantity. The appellant then asked for the value by way of
compensation. His demand was rejected. Therefore, he filed suit and the state claimed sovereign
immunity. The trial court did not allow this defence and decreed the suit. The state appealed to the
high court, which set aside the decree relying on Kasturi Lal28 and the appellant came in appeal to
the Supreme Court. The apex court reversed the high court decision and disallowing the contention
of the state held that the state is vicariously liable for negligent act of its employees in discharge
of their public duty. The court rightly observed that the traditional concept of sovereignty has
undergone a drastic change in the modern times. No legal system can place the state above law, as
it is unjust and unfair for a citizen to be deprived of his property illegally by negligent acts of
state's officers without remedy. The need of the state to have extraordinary powers is not doubted.
But at the same time, the state cannot claim sovereign immunity for the sufferings caused to the
common man by its officers acting illegally or negligently.

72
 Page: 565

The above view also finds support in Hazur Singh v. Behari Lal29, where justice B.R. Arora has
observed that ours is a democratic country following the rule of law and the state cannot claim any
immunity from payment of compensation for the wrongs done by pleading sovereign immunity.
This defence has become outdated in the context of modern development and the time has come
for us to say a good-bye to it. In our nation, the people are sovereign and the government, which
is elected by the people, cannot seek sovereign immunity against them.

The whole question was again examined by our Supreme Court in Common Cause v. Union of
India30 and the doctrine of sovereign immunity was rejected. The state liability rule as laid down
in P & O Steam Navigation case31 is very outmoded. In the modern times when the state activities
have been largely increased, it is very difficult to draw a line between its sovereign and non-
sovereign functions. The increased activities of the state have made a deep impact on all facts of
citizen's life, and therefore, the liability of the state must be made coextensive with the modern
concept of a welfare state. The state must be held liable for all tortious acts of its employees,
whether done in exercise of sovereign or non-sovereign powers. The apex court rightly observed
that in this process of judicial advancement, Kasturi Lal case32 has paled into insignificance and
is now no longer of binding value.

V Human right jurisprudence

Human rights are traditionally known as ‘natural rights’ and can be said to have their origin
from the divine law of nature. The right to life and liberty has been held to be a basic human right.
Through its various pronouncements, the Supreme Court of India has been successful in creating
human rights jurisprudence and helping the poor people of our country. But only a few could be
benefited and it was thought that there should be a separate agency to deal with the cases of human
rights violations. Indian Parliament enacted the protection of Human Rights Act, 1993 and a high-
powered and multi-member National Human Rights Commission (NHRC) headed by a former
Supreme Court Chief Justice was constituted to monitor and probe into the human rights violations.
This National Commission was established at New Delhi in 1993 and many of the states are also
taking steps to constitute state human rights commissions. These commissions can take action on
being approached and also suo motu by coming across the news of violation of human rights in
the media.

73
 Page: 566

Despite the constitutional and statutory safeguards in favour of the individual's liberty, the
growing incidents of custodial torture and dearth in our society have become a matter of concern
both for the higher judiciary and the National Human Rights Commission33, which has awarded
compensation in many cases. Complaints of abuse of power and torture to suspects by the police
in custody or by other law enforcing agencies are on rise. Generally, the victims of custodial
wrongs belong to the weaker sections of our society or they are either women or children. The rich
are able to get legal shelter, but the poor, the down trodden and the ignorant with little or no
political or financial power, are the sufferers and practically enjoy no human rights.

O.K. Basu v. State of W.B.34 is an important case in which the Supreme Court considered a PIL
petition for dealing with the complaints of custodial violence and deaths in the police lock-ups.
The respondent protested by saying that the petition was misconceived, misleading and untenable
in law. While the writ petition was under consideration, the court received a letter from Shri A.K.
Johri on 29.7.1987 about the death of one Mr. Mahesh Bihan in police custody at Aligarh (Uttar
Pradesh). This letter was also treated as a writ petition and listed with the writ petition filed earlier
by Shri D.K. Basu, Executive Chairman of West Bengal Legal Aid Services.

The Supreme Court, through Kuldip Singh, J. and Dr. A.S. Anand, J., observed that in almost
all the states there are allegations of frequent deaths in custody reported in media and custodial
death is perhaps one of the worst crimes in a civilized society governed by the rule of law. Any
form of torture or cruel, inhuman or degrading treatment would fall within the ambit of article 21
of the Constitution. If the functionaries of government become lawbreakers, it is bound to breed
contempt for law and encourage lawlessness. In its effort of making a human rights jurisprudence,
the court rightly said that the precious right guaranteed by article 21 of the Constitution cannot be
denied to convicts, under-trials, detenues and other prisoners in custody, except according to the
procedure established by law35. The court also gave some directions to all the states which should
be followed in all cases of arrest or detention till legal provisions are made in that behalf.

It was also stated by the court in the above case that the monetary compensation is an effective
remedy for redressal of the infringement of the fundamental right to life or liberty by the public
servants and the state

Page: 567

74
is vicariously liable for their tortious acts. The claim is based upon the principle of strict liability
and the state is not allowed to get the defence of sovereign immunity in that. In the assessment of
compensation, the emphasis has to be on the compensatory and not on punitive element. The
objective is to apply balm to the wounds and not to punish the offender. The award of
compensation in public law jurisdiction is also without prejudice to other actions like civil suits,
which will be lawfully available to the victim or the heirs of the deceased with respect to the
tortious acts committed by state functionaries. This relief under the public law jurisdiction is, thus,
in addition to the traditional remedies and not in derogation of them. The amount of compensation
awarded may be adjusted against any amount, which may be awarded to the claimant as damages
in a civil case36.

The above view is now followed and the compensation could be awarded for custodial death or
torture in civil proceedings too. The nature of liability would remain same, irrespective of the
forum. In State of Gujrat v. Govind Bhai Jakhubhai37, the state was held liable for wrongfully
abusing, beating and firing by a policeman on the plaintiff, whose right leg did not heal and had to
be amputated consequently. He filed civil suit in 1976. The trial court and the high court rightly
awarded Rs. 1,98,000/- to him with interest from the date of suit, as the said wrongful acts of state
employee amounted to the violation of the victim's basic human right to life. The defence of
sovereign immunity was rejected and it was held that such compensation for violation of
fundamental right under article 21 can also be granted in civil proceedings.

In Aheibam. Ongbi. Leihao Devi v. State of Manipur38, the Guwahati High Court awarded a
compensation of Rs. 1,50,000/- to the victim's wife because Manipur Rifles men fired as many as
83 rounds and killed the driver of a lone jeep who allegedly refused to halt at the check post on
being asked to do so. The concept of sovereign immunity has become inapplicable in cases of
human rights violations, whether it is writ39 jurisdiction or civil40 jurisdiction or even the
appellate41 jurisdiction. The only requirement is that the violation of the fundamental rights be
proved and the courts including the quasi-courts like NHRC have taken steps to compensate the
victim.

The forums awarding compensation may also take into consideration the economic conditions
and other humanitarian grounds of the victims.

Page: 568

In People's Union for Democratic Rights v. State of Bihar42, twenty one persons died as a result
of police firing at a peaceful meeting and the court was kind enough to award Rs. 20,000/- for each

75
death without prejudice to any just claim of compensation which could be filed by their legal
representatives. Recently the Supreme Court directed the state of U.P. to pay Rs. 5,00,000/- to the
parents of the deceased who died in the judicial custody. Giving this order in A jab Singh v. State
of U.P.43, the court further cleared that the direction to pay compensation would be without
prejudice to the rights of legal representatives of victim to claim compensation in private law
proceedings following D.K. Basu44 case. For the interests of the children of the deceased, the court
directed that half of the sum awarded be invested for their education and other benefits during their
minority.

Besides providing compensation of Rs. 2,00,000/- for custodial deaths45, the NHRC also
provided relief in cases of illegal detention and physical torture by the police. It has followed the
trend set by the judiciary in above cases and disallowed the defence of sovereign immunity to the
state in tortious acts of government employees. If the human rights or the fundamental rights are
violated, the NHRC after enquiring the matter grants compensation or damages to the victim. In
one such case46, the NHRC directed the state of Orissa to pay Rs. 50,000/- as damages to a 16-year
old boy, who was detained illegally by the police and subjected to physical abuse and torture. The
petitioner was a juvenile and was kept in illegal detention by police for four days before being
produced in the court. While dealing with a PIL case47 concerning the under-trial prisoners in jails,
the Supreme Court came to know in 1999 that one Mr. Ajay Ghosh had been kept as under-trial in
West Bengal prisons since 1962. The court felt shock at the illegal detention of Ghosh for over 37
years without any justification. He was produced before the court till May 1964 but there were no
court orders for 19 years thereafter till 1983. The court was anguished that “what happened during
the period 1964 to 1983 is not known”. The court considered it a blatant human rights violation.
After getting the matter enquired through a judicial magistrate, the court directed the State of West
Bengal to bear the expenses with regard to rehabilitation and keeping of Ghosh in charity home/old
age home as he had become mentally sick during such a prolonged incarceration. The chances of
his trial were bleak as none of the witnesses was alive. There was none to look after him, as all his
near relatives were dead. As he had already

Page: 569

undergone more than the double life term due to the carelessness of the officials of the state, the
burden of bearing expenses for the rest of his life were put on the state of West Bengal. There is
no room for sovereign immunity now and human rights considerations required its rejection.

VI Conclusion

76
 On the basis of the above study involving various cases, it can be concluded that the defence
of sovereign immunity is now not available to the state whenever its employees commit tort against
the citizens. Kasturilal is now overruled and the apex court has given a new dimension to the state
liability principle from Rudul Sah case. A concept of paying the compensation has been evolved
that whenever there is violation of fundamental right of life or liberty by any employee of the state,
it is vicariously liable for such tortious act. The remedy of getting damages can be availed both,
through writ or through civil litigation. It can also be obtained by approaching the Human Rights
Commission, whether at national level or at the state level. It will be better if our Parliament enacts
a law on this point and makes the state statutorily liable, whenever there is any tort committed by
its employees, whether in the exercise of sovereign or non-sovereign function.
———
*
Head, Law Department, Govt. B.S.R. Arts College, Alwar.
1.
The Crown Proceedings Act, 1947.
2.
S. 176, Government of India Act, 1935; S. 32, Government of India Act, 1919 and S. 65.
Government of India Act, 1858.
3.
(1851) 5 Bom H APP 1.
4.
AIR 1962 SC 933.
5.
AIR 1965 SC 1039.
6.
See, Seervai, Constitutional Law of India, 1137.
7.
State of Gujarat v. Memon Mohd. Haji Hasam, AIR 1967 SC 1885. See also, B.P. Dwivedi,
“Form Sah to Saheli : A New Dimension to Goverment Liability” 36 JILI 99 (1994).
8.
Khatri (2) v. Stale of Bihar, (1981) 1 SCC 627 : AIR 1981 SC 928. 1068.
9.
Rudul Sah v. State of Bihar, (1983) 4 SCC 141 : AIR 1983 SC 1086.
10.
(1984) 1 SCC 339 : AIR 1984 SC 571, 1026.
11.
Ans. 21 and 22, Constitution of India.
12.
S. 57, CrPC, 1973.
13.
Bhim Singh v. State of J & K, (1985) 4 SCC 677 : AIR 1986 SC 494.
14.
Supra notes 9 and 10.

77
15.
(1985) 4 SCC 677 : AIR 1986 SC 494.
16.
1989 SCC Online AP 30 : AIR 1989 AP 235.
17.
Ibid. at 247.
18.
Supra note 5.
19.
Supra note 9.
20.
Supra note 15.
21.
(2000) 5 SCC 712 : AIR 2000 SC 2083.
22.
Ibid. at 2091.
23.
(1990) 1 SCC 422 : AIR 1990 SC 513. See also, People's Union for Democratic
Rights v. Police Commr., (1989) 4 SCC 730, where Delhi Police Commissioner was directed to
pay Rs. 75,000/- to the family of deceased labourer who was beaten to death by policeman on
demanding wages.
24.
Supra note 5.
25.
Supra notes 23 at 516.
26.
(1993) 2 SCC 746 : AIR 1993 SC 1960.
27.
(1994) 6 SCC 205 : AIR 1994 SC 2663.
28.
Supra note 5.
29.
1991 SCC Online Raj 24 : AIR 1993 Raj 51.
30.
(1999) 6 SCC 667 : AIR 1999 SC 2979.
31.
Supra note 3.
32.
Supra note 5.
33.
NHRC Annual Reports revealed 444 custodial deaths in 1095-96. which were doubled (888) in
1996-97, as quoted in S.C. Raina, “Custodial Torture in Police Stations : Causes and Areas of
Improvement” 5 NCU 1(2000).
34.
(1997) 1 SCC 416 : AIR 1997 SC 610
35.
Ibid. at 618.

78
36.
Ibid. at 628. See also, A jab Singh v. State of U.P., (2000) 3 SCC 521 : AIR 2000 SC 3421.
37.
1998 SCC Online Guj 358 : AIR 1999 Guj 316.
38.
1998 SCC Online Gau 10 : AIR 1999 Gau 9.
39.
Supra notes 9,10,13 & 23.
40.
Supra notes 16 & 37.
41.
Supra note 21.
42.
(1987) 1 SCC 265 : AIR 1987 SC 355.
43.
(2000) 3 SCC 521 : AIR 2000 SC 3421.
44.
Supra note 34.
45.
See, Times of India (27_8_2000 & 1_9_2000).
46.
See, Indian Express (28_2_2000).
47.
R.D. Upadhyay v. State of A.P., (1998) 5 SCC 696.

© 2024 EBC Publishing Pvt. Ltd., Lucknow.

Unit V

[Read s. 11 of SEBI Act for powers and functions of the Board]

11. Functions of Board.—(1) Subject to the provisions of this Act, it shall be the duty of the Board
to protect the interest of investors in securities and to promote the development of, and to regulate
the securities market, by such measures as it thinks fit. (2) Without prejudice to the generality of
the foregoing provisions, the measures referred to therein may provide for—

(a) regulating the business in stock exchanges and any other securities markets;
(b) registering and regulating the working of stock brokers, sub brokers, share transfer agents,
bankers to an issue, trustees of trust deeds, registrars to an issue, merchant bankers, underwriters,
portfolio managers, investment advisers and such other intermediaries who may be associated with
securities markets in any manner;

(ba) registering and regulating the working of the depositories, 19[participants,] custodians of
securities, foreign institutional investors, credit rating agencies and such other intermediaries as
the Board may, by notification, specify in this behalf.] (c) registering and regulating the working
of 20[venture capital funds and] collective investment schemes, including mutual funds; (d)

79
promoting and regulating self-regulatory organisations; (e) prohibiting fraudulent and unfair trade
practices relating to securities markets; (f) promoting investors' education and training of
intermediaries of securities markets; (g) prohibiting insider trading in securities; (h) regulating
substantial acquisition of shares and takeover of companies;

(i) calling for information from, undertaking inspection, conducting inquiries and audits
of the stock exchanges 21[, mutual funds, other persons associated with the securities
market,] intermediaries and self-regulatory organisations in the securities market;
22[(ia) calling for information and records from any person including any bank or any
other authority or board or corporation established or constituted by or under any
Central or State Act which, in the opinion of the Board, shall be relevant to any
investigation or inquiry by the Board in respect of any transaction in securities;] 23[(ib)
calling for information from, or furnishing information to, other authorities, whether in
India or outside India, having functions similar to those of the Board, in the matters
relating to the prevention or detection of violations in respect of securities laws, subject
to the provisions of other laws for the time being in force in this regard: Provided that
the Board, for the purpose of furnishing any information to any authority outside India,
may enter into an arrangement or agreement or understanding with such authority with
the prior approval of the Central Government;] (j) performing such functions and
exercising such powers under the provisions of 24[* * *] the Securities Contracts
(Regulation) Act, 1956 (42 of 1956), as may be delegated to it by the Central
Government; (k) levying fees or other charges for carrying out the purposes of this
section; (l) conducting research for the above purposes; 25[(la) calling from or
furnishing to any such agencies, as may be specified by the Board, such information as
may be considered necessary by it for the efficient discharge of its functions;] (m)
performing such other functions as may be prescribed.

[Read the following briefing note on TRAI from CPR]

The Telecom Regulatory Authority of India (TRAI), an independent regulatory authority for the
telecommunications sector was created by an Act of Parliament, the TRAI Act, 1997. The
establishment of TRAI was a momentous event in India’s telecom development story.

Economic liberalisation ushered in significant changes to the telecom sector in India. Telecom
transitioned from being a government monopoly to an industry with multiple private participants.
The process of strengthening the telecom sector had begun in the early 1980s, with the creation
of the National Electronics Policy, 1984 and the setting up of two corporatised entities – the
Mahanagar Telephone Nigam Limited (MTNL) and the Videsh Sanchar Nigam Limited (VSNL).
Until such time, the Department of Telecommunications (DoT) within the Ministry of
Communications was the only service provider, since telecom was believed to be a “natural
monopoly”. This change marked the beginning of the corporatisation of services previously only
provided by a government department. In the early 1990s, the National Telecom Policy (1994)
was announced. Among other things, it allowed private investment in basic telephone services
for the first time in India. The constitutional validity of the 1994 policy was challenged on the
ground that telecommunications, being a sensitive service, ought to remain under the exclusive

80
control of the government. The Supreme Court of India upheld the policy and cited countries
where telecommunications had been privatised and regulatory authorities had been established
for the same.

As more private investment was allowed in the telecom sector in India, there were concerns of
an unequal playing field between private service providers and DoT (as a service provider and
policy maker). It was proposed that an independent and impartial sectoral regulator, at arm’s
length from the government, should be established. This led to the inception of TRAI.

In its original form, TRAI was vested with administrative and adjudicatory functions. Its
adjudicatory powers were, however, limited. For instance, it could not adjudicate disputes
between DoT and other telecom players. Further, on the policy-making side, TRAI could only
provide recommendations on significant aspects of telecom regulations and DoT was not
obligated to seek the advice of TRAI. Officials of DoT were members of TRAI as well. While
TRAI was a regulator and a dispute settlement body, DoT continued making policies for the
sector. Expectedly, this led to a conflict between TRAI and the Ministry. There were also
concerns about TRAI being able to execute its functions in an independent and impartial manner.
In the year 1999, the New Telecom Policy was released. It clarified that DoT was one among the
many providers in the telecom market and stated the government’s commitment to a “strong and
independent regulator with comprehensive powers and clear authority to effectively perform its
functions”.

With the objective of enabling the effective regulation of the telecom sector, the government
amended the TRAI Act in the year 2000. This brought changes to TRAI’s regulatory remit. The
Authority’s adjudicatory functions were shifted to the Telecom Disputes Settlement and
Appellate Tribunal (TDSAT). The TRAI Act was amended to state that, both, TRAI and TDSAT
will regulate telecommunication services, adjudicate disputes, dispose of appeals, and protect the
interests of service providers and consumers of the telecom sector, with the aim of promoting and
ensuring its orderly growth.

Powers and functions of TRAI

Section 11 of the TRAI Act specifies the powers and functions of the Authority. Broadly, the
telecom regulator’s functions can be classified under the following heads:
● Making recommendations, either suo-moto on or request from the Government, on issues
concerning licenses, competition and technological improvements, development of
telecommunication technology, equipment used by service providers, and efficient spectrum
management.
● Discharging functions relating to compliance with license conditions, technical compatibility
and interconnection between service providers, revenue sharing arrangements between them,
specifying the quality of services and conducting periodic surveys on services provided etc.
● Levying fees and other charges at rates specified by regulations.
● Notifying rates at which telecommunication services will be provided.
● Undertaking and performing any other functions as entrusted to it by the Central Government.

The recommendations provided by TRAI are not binding on the Central Government. With

81
regard to recommendations pertinent to licensing issues, TRAI can request, and the Government
is bound to provide, information/documents necessary for the purposes of making
recommendations.

Under Section 35 and 36 of the Act, TRAI is empowered to make regulations consistent with the
Act and the rules to carry out the provisions of the Act. It has issued regulations on consumer
protection, grievance redressal system, mobile number portability, reporting systems, standards
for quality of services, fees and charges levied etc. In addition to these legislative functions, it is
also expected to perform executive functions involving information gathering, monitoring, and
supervising the conduct of service providers. TRAI is vested with powers to call for information
from service providers, appoint persons to make inquiries into their affairs, and inspect their
books and accounts whenever necessary. It may also issue directions for the proper functioning
of all service providers and for them to comply with its rules and regulations. While the
adjudicatory functions of TRAI were moved to TDSAT, it still has some residual judicial powers
to ensure effective enforcement. For instance, under Section 29 of the Act, the Authority has been
given the power to impose penalties for the contravention of its directions and regulations.

Section 11 of the TRAI Act requires the Authority to ‘ensure transparency’ while exercising its
powers and discharging functions. In view of such a requirement, TRAI has adopted good
regulatory practices. For instance, it has developed a mechanism to promote stakeholder
participation in, both, the regulation-making and recommendation-making processes. It issues a
consultation paper laying out issues for discussion and invites public comments on it. The
comments are released on the TRAI website. It also organises open house discussions and
provides an opportunity for stakeholders to present their views in public and interact with TRAI
officials. Another way in which it promotes transparency is by releasing ‘explanatory
memorandums’ along-with regulations issued by it. These memorandums provide the rationale
for the Authority’s regulatory interventions and decisions.

The definition of “telecommunication service” under the TRAI Act was revised, in the year 2000,
to provide that the Central Government may expand TRAI’s mandate under the Act by
broadening the definition to include any other service. In January 2004, broadcasting and cable
services were added to TRAI’s mandate.

The telecom sector in India

India’s telecom sector is second only to China’s and is also among the fastest growing networks
in the world. The market size is primarily driven by wireless networks. As per the quarterly TRAI
Telecom Services Performance Indicators Report (July – September 2021), 98.19% of India’s 1.2
billion telecom subscribers are on wireless networks. Similarly, 97% of the subscriber base in
internet services is on wireless networks. There has also been significant growth in the mobile
services industry. Around a decade back, there were 10-14 mobile service providers in the
country. This competition enabled the adoption of wireless services, and brought down tariffs.
Data usage charges, however, are understood to have stayed high until the telecom market
witnessed the disruptive entry of Reliance Jio. As per analysis done using TRAI Performance
Indicators Reports, data prices saw an immediate decline from Rs. 180 per GB in September 2016
to Rs. 160 per GB in December 2016 and a drastic decline to Rs. 6.98 per GB in 2019.

82
 Simultaneously, many smaller players were acquired and the market presently has three large
private sector operators – Reliance Jio, Vodafone-Idea and Airtel. These 3 private players
together are understood to own almost 88% of the market.

The Indian telecom sector is now data-driven, predominantly due to lower tariffs, and easier
accessibility and availability, however, it remains skewed in favour of urban dwellers. While
India is touted to be one of the lowest priced telecom markets in the world, the focus ought to
shift to the quality of these services. For instance, call drops are an indicator of poor service
quality. It is understood that the drastic cut in tariffs which many operators were forced to
introduce due to Reliance Jio’s extremely low tariffs, shrunk their revenue streams and led to
lower investments in network infrastructure itself. The sectoral regulator is often criticised for
focusing unduly on price based competition and not enough on longer-term consumer interests
in terms of the quality of services.

In recent years, the industry debt burden has increased – primarily owing to spectrum acquisition
and network upgradation. With the industry’s sustainable future at risk, some incumbents
including the Cellular Operators Association of India (COAI) made a request to TRAI regarding
the introduction of floor prices, i.e. a minimum amount of profit for telecom operators for an
interim period in order to help them recover financially.

More generally, there has also been debate regarding ‘competition regulation’ in the telecom
sector. While the TRAI Act empowers the regulator to undertake “measures to facilitate
competition and promote efficiency in the operation of telecommunication services”, competition
as a subject also falls under the direct regulatory ambit of the Competition Commission of India
(CCI). In 2018, the Supreme Court of India ruled on the overlapping responsibilities of TRAI and
CCI and decided that once the technical fact is determined by the sectoral regulator, then CCI can
proceed to examine the anti-competitive nature of the agreement concerned.

As India’s telecom development story shifts focus to the quality of services offered, it must also
find ways to address long-standing challenges such as the digital divide, which has further
deepened due to the Covid-19 pandemic. In view of this, expanded telecom infrastructure capacity
will be necessary. Further, for the quick adoption and roll out of the 5G technology, the challenge
of high spectrum pricing will have to be resolved in the context of the overall health of the telecom
industry. In addition to these, potential challenges in the form of bundling of services, pressures
from online businesses etc. may require interventions in the future. In a fast-evolving sector such
as telecom, the regulator will continue to play a tremendous role in straddling consumer
expectations, investments, pricing, competition and the quality of telecommunication services in
India.

[ Notes on CCI. Source: UGC e-pathshala]

The Competition Act, 2002, as amended by the Competition (Amendment) Act, 2007, governs
competition law in India. Competition Commission of India is the organ which prevents anti-
competitive activities, abuse of dominance and anticompetitive combinations. Director General
83
(DG) leads the investigation relating to anticompetitive activities. The Competition Appellate
Tribunal (COMPAT) has the appellate jurisdiction against decisions of the CCI. Any appeal filed
against the order of the COMPAT has to be filed before the Supreme Court of India. The modules
deals with the duties, powers and functions of the competition authorities in India, DG, CCI and
COMPAT.
The Director General leads the investigation wing of the Competition Commission of India.
Director General in India refers to the Director General appointed under sub-section 1 of section
16 and includes any Additional, Joint, Deputy or Assistant Directors General appointed under the
section.1 The Director General, is expected by the Commission, to assist the Commission in
investigating into any contravention of the provisions of the Competition Act whenever required
or investigate into contravention of any rules or regulations thereunder.2 (2) The Director General
have all the powers conferred upon the Commission under sub-section (2) of section 36.(3) Where
the CCI upon private complaint or suo motu consider that a prima facie case exists it shall ask the
DG to investigate into the matter.3 In respect of investigations whether carried out suo motu or on
complained filed by the aggrieved party DG submits investigation report to the CCI within a
specific time period. CCI sends the DG Report to both the parties for inviting their comments and
objections. After further hearing the CCI passes the appropriate orders. The success stories of DG
and the CCI in the last 5 years can be summarised as follows. In December 2010, CCI investigated
the case of cartelisation among traders when onion prices touched 80 rupees. This was done
anticipating that the actual cause of the increase of price of onions was secret pact between the
traders.4 But the investigation was not successful to the extent that the onion traders could be
booked.5 In June 2012, CCI imposed a fine of 63.07 billion (US$1.0 billion) 11 cement companies
for cartelisation. CCI investigation was successful and the evidence suggested that the cement
companies made secret pacts when they met at regular intervals. Their motive was to control
market share and hold back supply. 6 The profits that earned out of the cartelization was designated
as illegal profits.

CCI has a very important role to play in the context of addressing cartels, abuse of dominance and
combinations. The Commission comprises of a Chairperson and six members. Ashok Chawla is
the current Chairperson of the CCI. The MRTP Act, 1969 only required enterprises to “cease and
desist” from anti-competitive activities. The Supreme Court in the case Union of India v Hindustan
Development Corporationhas also commented on the undesirability of cartels,12 and has lamented
the inability of the MRTP Act to effectively deal with the problem of cartels, partly because of the
lack of an effective definition of the same and partly because of the lack of effective powers to
control cartels. The provisions of the Competition Act, 2002, as amended by the Competition
(Amendment) Act, 2007, which are relevant are mentioned below. A cartel is defined in Section
2(c) of the Competition Act, 2002, as “including associations of producers, sellers, distributors,
traders or service providers who agree to limit control or attempt to control the production,
distribution, sale or price of, or, trade in goods or provision of services”. 13 Section 3 of the Act
lays down a general prohibition against enterprises or association of enterprises and persons or
association of persons entering into an agreement (horizontal or vertical) which causes or is likely

84
to cause an appreciable adverse effect on competition. 14 Section 3(3) provides an exhaustive list
of prohibited horizontal agreements (for example, price-fixing, output restrictions, market sharing
and bid rigging) which are presumed to cause an appreciable adverse effect on competition in
India.15In the proviso to the section there is an exemption for joint ventures entered into by
competitors, which enhances efficiencies in production, supply, distribution, storage, acquisition
or control of goods or provision of services.16 So save those types of joint ventures every other
form of horizontal agreements having cartelization shall be considered by the CCI to have
appreciable adverse effect on competition in India. An enquiry into a violation of the Act can be
triggered upon the receipt of a complaint by the Commission or upon its own motion which is also
called suo motu action. If the Commission is convinced that a prima facie case exists, it proceeds
to direct the Director General to commence an investigation. When the director general completes
the investigation he submits a report to the Commission which then decided what action to take.
Section 46 of the Competition Act, 2002, as amended by the Competition (Amendment) Act, 2007,
in India provides for such leniency as well, and the Act allows the Commission to draft regulations
in connection with this.

[Read the following note on Civil Services from a constitutional perspective by Institute of
Management in Government, Kerala]

CONSTITUTIONAL PROTECTION TO CIVIL SERVANTS (Dr. A. Prasanna)

Civil Servants are considered as the back bone of the administration. In order to ensure the progress
of the country it is essential to strengthen the administration by protecting civil servants from
political and personal influence. So provisions have been included in the Constitution of India to
protect the interest of civil servants along with the protection of national security and public
interest. Part XIV of the Constitution of India deals with Services under The Union and The State.
Article 309 empowers the Parliament and the State legislature regulate the recruitment, and
conditions of service of persons appointed, to public services and posts in connection with the
affairs of the Union or of any State respectively.
Doctrine of Pleasure
In England a civil servant holds his office during the pleasure of the Crown. His services can be
terminated at any time by the Crown without giving any reasons. Article 310 of the Constitution
of India incorporates the English doctrine of pleasure by clearly stating that every person who is a
member of a defence service or of a civil service of the Union or of an all India service or holds
any post connected with defence or any civil post under the Union, holds office during the pleasure
of the President, and every person who is a member of a civil service of a State or holds any civil
post under a State holds office during the pleasure of the Governor of the State . But this power of
the Government is not absolute. Article 311 puts certain restriction on the absolute power of the
President or Governor for dismissal, removal or reduction in rank of an officer. Article 311 reads

85
as follows: (1) No person who is a member of a civil service of the Union or an all India service
or a civil service of a State or holds a civil post under the Union or a State shall be dismissed or
removed by a authority subordinate to that by which he was appointed. (2) No such person as
aforesaid shall be dismissed or removed or reduced in rank except after an inquiry in which he has
been informed of the charges against him and given a reasonable opportunity of being heard in
respect of those charges. Civil Post The protective safe guards given under Article 311 are
applicable only to civil servants, i.e. public officers. They are not available to defence personnel.
In State of U. P. v A. N. Singh1 the Supreme Court has held that a person holds a civil post if there
exists a relationship of master and servant between the State and the person holding the post. The
relationship is established if the State has right to select and appoint the holder of the post, right to
control the manner and method of his doing the work and the payment by it of his wages or
remuneration.
∗ Associate Fellow IMG, Thiruvananthapuram
Dismissal and Removal
Dismissal and removal are synonymous terms, but in law they acquired technical meanings by
long usage in Service Rules. In case of dismissal a person is debarred from future employment,
but in case of removal he is not debarred from future employment.
No Removal by Subordinate Authority
No removal by subordinate authority does not mean that the dismissal or removal must be by the
same authority who made the appointment or by his direct superior. It is enough if the removing
authority is of the same or co- ordinate rank as the appointing authority.
Reduction in Rank
Reduction in Rank means reduction from a higher rank or post to a lower rank or post and not
loosing place in rank or cadre. In State of Punjab v Kishan Das2 The Supreme Court held that a
mere reduction in the salary in the same cadre is not reduction in rank. Inquiry It is mandatory
under Article 311(2) to make an inquiry before the dismissal, removal or reduction in rank of a
civil servant. In that inquiry the civil servant has to be informed of the charges against him and
given a reasonable opportunity of being heard in respect of those charges. Informed of the charges
Informed of the charges, means serving of a charge sheet explaining the reasons of the charges
leveled against the concerned officer and statement of allegations against each charge.
Reasonable Opportunity of Being Heard
In Khem Chand v Union of India3 the Supreme Court held that the 'reasonable opportunity'
means:- (a) An opportunity to deny his guilt and establish his innocence, which he can do only if
he is told what the charges leveled against him are and the allegations on which such charges as
based. (b) An opportunity to defend himself by cross examining the witness produced against him
and by examining himself in support of his defiance. (c) An opportunity to make his representation
as to why the proposed punishment should not be inflicted on him. 3 Termination of Service When
Amounts to Punishment. The protection under Art. 311 is available only when the dismissal,

86
removal or reduction in rank is by way of punishment In Parshotham Lal Dhingra v Union of
India4 the Supreme Court has laid down two tests to determine whether termination is by way of
punishment- (1) whether the servant had a right to hold the post or the rank (under the terms of
contract or under any rule) (2) whether he has been visited with evil consequences If yes it amounts
to punishment.
Suspension
Suspension of a government employee is not a punishment. It is neither dismissal or removal nor
reduction in rank. So the employee cannot claim a reasonable opportunity to be heard.
Exclusion of Opportunity to be Heard
Article 311(2) Provides that reasonable opportunity of being heard is not applicable in the
following cases. (a) where a person is dismissed or removed or reduced in rank on the ground of
conduct which has led to his conviction on a criminal charge; or (b) where the authority empowered
to dismiss or remove a person or to reduce him in rank ins satisfied that for some reason, to be
recorded by that authority in writing, it is not reasonably practicable to hold such inquiry; or (c)
where the President or the Governor, as the case may be, is satisfied that in the interest of the
security of the State, it is not expedient to hold such inquiry An employee who is convicted on
criminal charges need not be given an opportunity to be heard, before his dismissal from service.
However in Divisional personal Officer, Southern Railway v T. R. Chellappan5 the Supreme Court
held that the imposition of the penalty of dismissal ,removal or reduction in rank without holding
an inquiry was unconstitutional and illegal. The objective consideration is only possible when the
delinquent employee is being heard. But in Union of India v Tulshiram Patel6 the Court held that
the dismissal, removal or reduction in rank of a person convicted on criminal charges is in public
interest, and therefore not violative of Art. 311(2) of the Constitution. The Court thus overruled its
earlier decision in Chellappan's case.
Compulsory Retirement
Compulsory retirement simpliciter is not punishment. It is done in ' public interest' and does not
caste a stigma on the Government servant. So the employee cannot claim an opportunity to be
heard before he is compulsorily retired from service. The Supreme Court of India has issued certain
guidelines regarding compulsory retirement. In State of Gujarat v Umedbhai M.Patel7 the Court
laid down the following principles. 1. When the Service of a public servant is no longer useful to
the general administration, the officer can be compulsorily retired in public interest. 2. Ordinarily
the order of compulsory retirement is not to be treated as a punishment under Art. 311 of the
Constitution. 3. For better administration, it is necessary to chop off dead wood but the order of
compulsory retirement can be based after having due regard to the entire service record of the
officer. 4. Any adverse entries made in the confidential record shall be taken note of and be given
due weightage in passing such order. 5. Even uncommunicated entries in the confidential report
can also be taken in to consideration. 6. The order of compulsory retirement shall not be passed as
a short cut to avoid departmental inquiry when such course is more desirable. 7. If the officer is
given promotion despite adverse entries in the C. R., that is a fact in favour of the officer. 8.
Compulsory retirement shall not be imposed as a punitive measure. In Baikunth Nath v Chief

87
Medical Officer8 the Court issued further clarifications regarding compulsory retirement. (1) An
order of compulsory retirement is not a punishment. It implies no stigma. (2) The order has to be
passed by the Govt. in public interest. The order is passed on the subjective satisfaction of the
Govt. (3) Principles of natural justice have no place in the context of an order of compulsory
retirement. However courts will interfere if the order is passed mala fide or there is no evidence or
it is arbitrary. (4) The Govt. shall have to consider the entire record of service before taking a
decision in the matter particularly during the later years' record and performance. (5) An order of
compulsory retirement is not liable to be quashed by a Court merely on showing that while passing
it excommunicated adverse remarks were taken in to consideration. The circumstances by itself
cannot be a basis for interference.
Temporary Employees and Probationers
In State Of Punjab & Anr v Sukh Raj Bahadur9 the Supreme Court laid down the following
principles regarding the applicability of Article 311 to temporary servants and probationers.
1. The services of a temporary servant or a probationer can be terminated under the rules of his
employment and such termination without anything more would not attract the operation of Art.
311 of the Constitution. 2. The circumstances preceding or attendant on the order of termination
of service have to be examined in each case, the motive behind it being immaterial. 3. If the order
visits the public servant with any evil consequences or casts an aspersion against his character or
integrity, it must be considered to be one by way of punishment, no matter whether he was a mere
probationer or a temporary servant. 4. An order of termination of service in unexceptionable form
preceded by an enquiry launched by the superior authorities only to ascertain whether the public
servant should be retained in service, does not attract the operation of Art. 311 of the Constitution.
5. If there be a full-scale departmental enquiry envisaged Art. 311 i.e. an Enquiry Officer is
appointed, a charge sheet submitted, explanation called for and considered, any order of
termination of service made thereafter will attract the operation of the said article. The Constitution
of India through Article 31, thus protects and safegurds the rights of civil servants in Government
service against arbitrary dismissal, removal and reduction in rank. Such protection enables the civil
servants to discharge their functions boldly, efficiently and effectively. The public interest and
security of India is given predominance over the rights of employees. So conviction for criminal
offence, impracticability and inexpediency in the interest of the security of the State are recognised
as exceptions. The judiciary has given necessary guidelines and clarifications to supplement the
law in Article 311. The judicial norms and constitutional provisions are helpful to strengthen the
civil service by giving civil servants sufficient security of tenure. But there may arise instances
where these protective provisions are used as a shield by civil servants to abuse their official
powers without fear of being dismissed. Disciplinary proceedings initiated by Government
departments against corrupt officials are time consuming. The mandate of ‘reasonable opportunity
of being heard’ in departmental inquiry encompasses the Principles of Natural Justice which is a
wider and elastic concept to accommodate a number of norms on fair hearing. Violation of
Principles of Natural Justice enable the courts to set aside the disciplinary proceedings on grounds
of bias and procedural defects.

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1. AIR 1965 SC 360 2. AIR1971SC766 3. AIR 1958 SC300 4. AIR 1958 SC 36 5. (1976 ) 3SCC
1990 6. (1985) 3SCC398 7. AIR 2001 SC 1109 8. (1992) 2 SCC 299 9. AIR 1968 SC 1089 10.

[Read the following SCConline blog piece for a comprehensive overview of Lokpal]

Corruption and maladministration in public life is fatal to economic growth. Corruption also
erodes the authority of the State, promotes crime and violence, and undermines the rule of law and
the very foundations of a democratic polity. The issue of corruption in India merits consideration
as a national issue at least at par with secularism, stability, reservation in services, political
empowerment of women and like subjects. Though at different times different persons raised their
voice against corruption, but the real fight against corruption as a national and priority issue was
championed by late Jayaprakash Narayan. After his movement, the fight against corruption
continued by several other leaders, however, sometimes wrong priorities focusing on non-issues
and divisive factors by some leaders on the national agenda lead to negative consequences. The
concept of establishing an independent body to look into the citizens grievances in India dates back
to the year 1952, when for the first time it was discussed in Parliament during a discussion on the
Prevention of Corruption Bill. Seven years later the need for Ombudsman type of institution in
India was effectively articulated by the then Chairman of the University Grants Commission and
former Minister of Finance, Shri C.D. Deshmukh. Shri Deshmukh observed that “an uneasy public
hears of nepotism, high-handedness, gerrymandering, feathering of nests through progeny, and a
dozen other sins of omission and commission, and yet is helpless for lack of precise data, facts and
figures, evidence and proof”1. He even came forward to make a beginning by lodging half a dozen
complaints if a high level, impartial standing judicial Tribunal to investigate and report on
complaints or lying of information was set up.

Genesis of the Ombudsman concept in India

Regarding the need of an independent agency to look into the grievances of citizens was
highlighted by Mr M.C. Setalvad, the then Attorney General of India in the Third All India Law
Conference held on 12-8-1962 to 14-8-1962. It was in fact the relentless effort of the great
Parliamentarian Dr L.M. Singhvi who fought rigorously for setting up of an Ombudsman type of
institution in India. Dr Singhvi said that “the institution of Ombudsman would enable the citizens
to effectively ventilate their grievances which could not be substituted by the question hour in
Parliament or through writing letters to the Ministers concerned and the available judicial remedy
is also not adequate as the courts are prejudiced by limitations of procedures and
technicalities.”2 Dr Singhvi made several efforts to make the Government convinced for

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establishing the Ombudsman, but failed. During that period Prime Minister Jawaharlal Nehru in
his address to the All India Congress Committee at Jaipur (3-11-1963) observed that “while the
system of Ombudsman fascinated him, since the office would have overall authority to deal with
charges even against the Prime Minister and would command respect and confidence of all, he,
nevertheless, felt that its introduction was beset with difficulties in a big country like India”3.

Subsequently, Shri P.B. Gajendragadkar, the then Chief Justice of India, raised the issue of
Ombudsman and he commended for careful examination of the idea of an independent authority
for the redress of public grievances.4 The Provincial Bar Association of Madras supported the
creation of the institution of Ombudsman in their meeting held in October 1963. A number of other
Committees also like the Committee on Prevention of Corruption (1962), Administrative Reforms
Commission of Rajasthan, Special Consultative Group of Ministers of Parliament (1965),
Administrative Reforms Commission (ARC) (1966 and 2007), the National Commission to
Review the Working of the Constitution (2002), all have recommended the setting up of the
institution of Ombudsman or Lokpal.

The Administrative Reforms Commission (ARC) set up in 1966 under the chairmanship of late
Shri Morarji Desai have recommended the idea of setting up two types of Ombudsman institutions,
namely, (1) the Lokpal (protector of people); and (2) the Lokayukta (Commissioner of the People).
As per the recommendation of the ARC, the Lokpal was expected to deal with the complaints
against the Ministers and the Secretaries of Government posted at the Centre and in the States,
whereas the Lokayukta in each State and one for the centre to look into the complaints against
public officials other than Ministers and Secretaries to the Government.

In the year 2002, another Commission was set up under the chairmanship of former Chief
Justice of India, Shri M.N. Venkatachaliah in the name of “The National Commission to Review
the Working of the Constitution.” The Commission recommended the establishment of the
institution of the Lokpal as a constitutional authority so that a cleaner Government could be
achieved. More specifically, the Commission recommended two things—(1) The Constitution
should provide for the appointment of the Lokpal and make it obligatory for States to establish the
institution of Lokayukta; and (2) the office of the Prime Minister should be kept out of the purview
of the Lokpal.

Again in 2007, the Second Administrative Reforms Commission under the chairmanship of Dr
Veerappa Moily was set up, which also recommended to amend the Constitution so as to provide
for a national Ombudsman called the Rashtriya Lokayukta. The Commission further recommended
that the role and jurisdiction of the Rashtriya Lokayukta should be defined in the Constitution, but
the composition, mode of appointment and other details can be decided by Parliament through

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legislation. All Ministers, Chief Ministers and Members of Parliament, except the Prime Minister,
should come within the purview of the Rashtriya Lokayukta. Regarding the composition and
appointment of the Rashtriya Lokayukta, the Commission suggested that it should consist of a
serving or retired Judge of the Supreme Court as the Chairperson, an eminent jurist as Member
and the Central Vigilance Commissioner as the ex-officio Member. The Chairperson and Members
should be selected by a Committee consisting of the Vice-President, the Prime Minister, the Leader
of the Opposition, the Speaker of the Lok Sabha and the Chief Justice of India. The Commission
has said that the Chairperson and Member should be appointed for only one term of three years
and they should not hold any public office later, except the office of Chief Justice of India, if they
are eligible.

Need for establishment of the Lokpal

When the question of governance comes, the possibilities of misgovernance by the rulers
become more visible. The need for the establishment of any institute always depends upon a
specific and pertinent cause. Likewise, the need for establishment of the institute of Lokpal is the
outcome of the issue of rampant growth of corruption in almost every sphere. It is not that the evil
of corruption is of recent origin; rather it was as old as governance.

Kautilya in his Arthashastra rightly observes that for those who guard the treasury the
temptation to be dishonest is almost a natural instinct. He says:

“Just as it is impossible not to taste the honey or the poison that finds itself at the tip of the
tongue, so it is impossible for a government servant not to eat up at least a bit of the king's
revenue. Just as fish moving under water cannot possibly be found out either as drinking or not
drinking water, so government servants employed in the government work cannot be found
out while taking money for themselves.”

Corruption in India has been a problem ever since the country had been having a multilayered
administration by Ministers, Administrative Chiefs and Officers. The problem of corruption in
ancient India, coupled with bribery, kept infesting the society more and more in an increasing rate.
This is quite clear from the way the contemporary writers like Kshemendra and Kalhana, who
lived in 990-1065 BC, have condemned the government officials, as well as other employees of
different levels, in their celebrated works.5 Kshemendra has advised the king to remove all the
ministers, generals, officials and priests from office with immediate effect, who were either taking
bribes themselves or have been indulging in corruption in some other way. Yet another work by
Kshemendra, called Narmamala, depicts corruption bribery spreading fast like rampant maladies.
He also found an answer to the much discussed question how to stop corruption in India of his

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time; he has explicitly addressed the contemporary intelligentsia to step forward and shoulder the
responsibility of purging their folks.

Anti-Corruption laws in India

Public servants in India can be penalised for corruption under the Penal Code, 1860 and the
Prevention of Corruption Act, 1988. The Benami Transactions (Prohibition) Act, 1988 prohibits
benami transactions. The Prevention of Money-Laundering Act, 2002 penalises public servants
for the offence of moneylaundering. India is also a signatory to the UN Convention against
Corruption since 2005. The Convention covers a wide range of acts of corruption and also proposes
certain preventive policies.

Key features of the Acts related to corruption

Penal Code, 1860

(i) The Penal Code, 1860 defines “public servant” as a government employee, officers in the
military, navy or air force, police, Judges, officers of court of justice, and any local
authority established by a Central or State Act.

(ii) Section 169 pertains to a public servant unlawfully buying or bidding for property. The
public servant shall be punished with imprisonment of up to two years or with fine or both.
If the property is purchased, it shall be confiscated.

(iii) Section 409 pertains to criminal breach of trust by a public servant. The public servant
shall be punished with life imprisonment or with imprisonment of up to 10 years and a fine.

The Prevention of Corruption Act, 1988

(i) In addition to the categories included in the IPC, the definition of “public servant” includes
office-bearers of cooperative societies receiving financial aid from the Government,
employees of universities, Public Service Commission and banks. The words as per Section
2(c) of the Act mean that a person who is in service at the time when the court is called
upon to take cognizance of the offence6.

(ii) If a public servant takes gratification other than his legal remuneration in respect of an
official act or to influence public servants is liable to minimum punishment of six months
and maximum punishment of five years and fine. The Act also penalises a public servant
for taking gratification to influence the public by illegal means and for exercising his
personal influence with a public servant. However, nexus should be established between
performance of the official duty and acceptance of gratification.7

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 (iii) If a public servant accepts a valuable thing without paying for it or paying inadequately
from a person with whom he is involved in a business transaction in his official capacity,
he shall be penalised with minimum punishment of six months and maximum punishment
of five years and fine. Under Section 4 of this Act presumption will be drawn against the
accused the moment the prosecution proves that the accused accepted or agreed to accept
or obtained or attempted to obtain any gratification or valuable thing.8

(iv) It is necessary to obtain prior sanction from the Central or State Government in order to
prosecute a public servant. The section is a safeguard for the innocent and not a shield for
the guilty9. The discretion to sanction for prosecution is absolute. It cannot be questioned
in a court of law10. Trial without sanction is null and void. Subsequent trial with proper
sanction is not barred11. If there is no sanction no cognizance of the offence can be taken
at all. The sanction is required only for purpose of taking cognizance of offence. Once
cognizance is taken its utility is exhausted and it is no longer needed either during trial or
conviction12.

The Benami Transactions (Prohibition) Act, 1988

(i) The Act prohibits any benami transaction (purchase of property in false name of another
person who does not pay for the property) except when a person purchases property in his
wife's or unmarried daughter's name.

(ii) Any person who enters into a benami transaction shall be punishable with imprisonment
of up to three years and/or a fine.

(iii) All properties that are held to be benami can be acquired by a prescribed authority and no
money shall be paid for such acquisition.

The Prevention of Money-Laundering Act, 2002

(i) The Act states that an offence of moneylaundering has been committed if a person is a party
to any process connected with the proceeds of crime and projects such proceeds as
untainted property. “Proceeds of crime” means any property obtained by a person as a
result of criminal activity related to certain offences listed in the schedule to the Act. A
person can be charged with the offence of moneylaundering only if he has been charged
with committing a scheduled offence.

(ii) The penalty for committing the offence of moneylaundering is rigorous imprisonment for
three to seven years and a fine of up to Rs 5 lakhs. If a person is convicted of an offence
under the Narcotics Drugs and Psychotropic Substances Act, 1985 the term of
imprisonment can extend up to 10 years.

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 (iii) The adjudicating authority, appointed by the Central Government, shall decide whether
any of the property attached or seized is involved in moneylaundering. An Appellate
Tribunal shall hear appeals against the orders of the adjudicating authority and any other
authority under the Act.

(iv) Every banking company, financial institution and intermediary shall maintain a record of
all transactions of a specified nature and value, and verify and maintain records of all its
customers, and furnish such information to the specified authorities.

Procedure followed to investigate and prosecute corrupt public servants

In order to investigate cases against corrupt public servants and to prosecute them, the
following process is to be followed—

(i) The three main agencies involved in inquiring, investigating and prosecuting corruption
cases are the Central Vigilance Commission (CVC), the Central Bureau of Investigation
(CBI) and the State Anti-Corruption Bureau (ACB).

(ii) Cases relating to moneylaundering by public servants are investigated and prosecuted by
the Directorate of Enforcement and the Financial Intelligence Unit, which are under the
Ministry of Finance.

(iii) The CBI and State ACBs investigate cases related to corruption under the Prevention of
Corruption Act, 1988 and the Penal Code, 1860. The CBI's jurisdiction is the Central
Government and Union Territories while the State ACBs investigates cases within the
States. States can refer cases to the CBI.

(iv) The CVC is a statutory body that supervises corruption cases in government departments.
The CBI is under its supervision. The CVC can refer cases either to the Central Vigilance
Officer (CVO) in each department or to the CBI. The CVC or the CVO recommends the
action to be taken against a public servant but the decision to take any disciplinary action
against a civil servant rests on the department authority.

(v) Prosecution can be initiated by an investigating agency only after it has the received
sanction.

The Lokpal and Lokayuktas Act, 2013

After the success of a longstanding movement, finally the Lokpal and Lokayuktas Act, 2013
was passed by Indian Parliament in December 2013 and received the Presidential assent on 1-1-
2014. As sought for, the Act aimed at the prevention and control of corruption by setting up of an
independent and impartial body at the central level named as the “Lokpal” and at the State level

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as the Lokayukta. The institution of Lokpal would receive complaints relating to corruption against
public servants from most of the categories within and outside India. The extent of the Act is to
the whole of India, including Jammu and Kashmir.

Powers of the Lokpal as per the Lokpal and Lokayuktas Act, 2013

(i) It includes the powers of superintendence over, and to give direction to the CBI. Any case
when referred by the Lokpal to the CBI, the investigating officer in such case cannot be
transferred without the approval of the Lokpal. The Lokpal has the power to authorise the
CBI to search and seizure as and when required for the matters connected to such case.

(ii) The Inquiry Wing of the Lokpal is to be vested with the powers of a civil court that includes
the Lokpal to confiscate the assets, proceeds, receipts and benefits acquired or procured by
the alleged person by means of corruption under certain special circumstances.

(iii) Lokpal will have the power to recommend for the transfer or suspension of public servant
connected with allegation of corruption.

(iv) During preliminary inquiry Lokpal has the power to pass any direction to prevent
destruction of records by anybody.

(v) The Lokpal while dealing with the cases arising out of the Prevention of Corruption Act,
1988 or under the Lokpal Act, if recommends, the Central Government shall constitute
Special Courts to hear and decide the cases. The time-limit for such courts to complete the
trial as per the Act, is to be within a period of one year from the date of filing of the case
in the court which may be extended for 3 months by recording in writing.

(vi) The Act, however, excludes the power of the Lokpal to inquire into any complaint made
against the Chairperson or any Member of its own institution.

When the central law was enacted, Anna Hazare, the pioneer of the Lokpal movement, was
quite apprehensive about the fact that it would be meaningless to enact the law unless implemented
and enforced properly. He even accused the Government of delaying the Lokpal's appointment,
and questioned its intent and credibility to fight corruption. Ironically while he continues to make
noises at this age, his aides like Kiran Bedi and V.K. Singh have accepted top Government
positions. Arvind Kejriwal who was the Chief Architect of the Civil Society Movement against
corruption in 2011 that forced United Progressive Alliance (UPA) to introduce a Bill in Parliament,
has formed a party of his own, and become the Chief Minister of Delhi. Though Kejriwal passed
Delhi's Lokpal legislation in 2015, but faced several allegations of inserting weak provisions in
the law.

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Conclusion

Four years have already been passed since the passing of the Lokpal and Lokayuktas Act, 2014,
but still it is not implemented. India is still waiting to see its first Lokpal. These four years of
Government under the National Democratic Alliance (NDA) banner, which has come to power
with a massive mandate to push growth and fight against corruption, is not taking any effective
step to implement the law. Regarding non-appointment of the Lokpal, the Government's contention
is that a search committee could not be formed as there was no leader of opposition in the Lok
Sabha. Justifying its stand by giving a very shocking explanation, the Government instead of
urgently sorting out the limited issue of leader of opposition introduced a 10 page amendment to
the Act in December 2014. The matter subsequently moved to a parliamentary panel. Previously,
while the present party in power was in opposition, it has always emphasised more on
establishment of a strong and independent Lokpal, whereas now being in power, the party is not
only trying to dilute the law, but also delaying its enforcement.

The Government's strong belief is that it is performing well instead of having a Lokpal
Institution. “Corruption had eaten away our country like termites. So if I have stopped so much
corruption, there will of course be many who will curse me. Only those who looted the nation are
not enthused by this Government,” said the Prime Minister, while giving speech in the completion
of second year celebration of his Government. The Prime Minister's remarks come just days after
the Supreme Court questioned why his Government had not appointed anyone as Lokpal. “What
is holding you back? You cannot sit over it,” the court asked the Government, while seeking to
know by 19-7-2016 the steps taken for the appointment. The court was hearing a Public Interest
Litigation (PIL) filed by NGO Common Cause that alleged that the Government and other parties
were dragging feet. In 2002 the Supreme Court had directed the Government to appoint a Lokpal
to bring an end to the commission of a scam each day. Recently on 15-5-2018, while asked by the
Supreme Court to the Centre regarding the steps taken by it to implement the Act, the Government
informed the Supreme Court that it has appointed Mukul Rohatgi, former Attorney General of
India to the post of “eminent jurist” of the Lokpal Selection Committee which post remained
vacant since the demise of Senior Advocate P.P. Rao last year and is going to take necessary steps
for appointment of the Lokpal.

As per the current ranking of the Transparency International's global corruption index, India
stands on 81. At this point of time, one cannot say that the Lokpal and Lokayuktas Act, 2014 would
be the best law India needs to check corruption. Still the hope for having a better future could not
be ruled out, which is possible only when the law would be implemented in its proper perspective.
———

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*
Associate Professor, SOA National Institute of Law (SNIL), Bhubaneswar, Odisha, e-mail
[email protected]
1
Shri C.D. Deshmukh, in his lecture delivered on 11-7-1959 at Madras.
2
During the debates in the Lok Sabha for demands for the grants of Law Ministry, on 3-4-1963.
3
Quoted in “Lokpal : Ombudsman in India” M.P. Jain, First Edn., 1970, p. 2.
4
Justice Shri P.B. Gajendragadkar in his analysis on the “Role of Administration in a Democratic
Welfare State.”
5
Kshemendra in his famous book Desopadesha.
6
State of Bombay v. Vishwakant Shrikant, 1953 SCC OnLine Bom 52 : AIR 1954 Bom 109.
7
Ram Krishan v. State of Delhi, AIR 1956 SC 476; Mahesh Prasad v. State of U.P., AIR 1955 SC
70; Ram Charan Bhatt v. State, 1964 SCC OnLine All 377 : AIR 1967 All 321.
8
M.C. Mitra v. State, 1951 SCC OnLine Cal 74 : AIR 1951 Cal 524; State of Madras v. A.
Vaidyanatha Iyer, AIR 1958 SC 61; State of Ajmer v. Shivji Lal, AIR 1959 SC 847.
9
Gurbachan Singh v. State, 1969 SCC OnLine Del 57 : AIR 1970 Del 102 : 1970 Cri LJ 674.
10
Dharam Sarup v. State, 1952 SCC OnLine All 256 : AIR 1953 All 37 : 1953 Cri LJ 192.
11
Baij Nath Prasad v. State of Bhopal, AIR 1957 SC 494 : 1957 Cri LJ 597.
12
Ram Pukar Singh v. State, 1953 SCC OnLine All 193 : AIR 1954 All 223 : 1954 Cri LJ 459.

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