ADMINISTRATIVE LAW

RAMANDEEP KAUR
6th semester
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SECTION A
SECTION-A
Nature and scope of Administrative Law
Reasons for growth of Administrative Law
Origin and Development of Administrative Law in UK, USA, India and France
Relationship between Constitutional Law and Administrative Law
Delegated Legislation:
Nature and scope
Factors leading to the growth of Delegated Legislation
Classification of Delegated Legislation
Rules and Principles of Delegated Legislation
Controls of Delegated Legislation
Sub-Delegation
Case Laws: Ram Jawaya Kapur v. State of Punjab, AIR1955SC549
Re Delhi Laws Act, AIR1951SC332

NATURE AND SCOPE OF ADMINISTRATIVE LAW

INTRODUCTION : Administrative law, as a branch of public law, governs the relationship of the state and its citizens. Specifically, it regulates the manner of
exercising power by the executive branch of government and administrative agencies so as to ensure its legal limits. Ultimately, by controlling power, it provides
protection to the citizen against ultravires acts, abuse of power and arbitrariness. Administrative law is a subset of public law that deals with the various powers,
responsibilities, rights, and liabilities of government agencies involved in public administration. Various attempts to provide a definitive definition have been made, but
none have been successful. “Administrative law is as to determine the ends to which sovereign powers shall be exercised and the modes in which those powers shall be
exercised,” according to Austin.
They shall be exercised in the following ways:
1. Directly by the sovereign member’s monarch
2. Directly by subordinate political superiors to whom portions of those are delegated or committed in trust.
Administrative law, according to Jennings, is “A law relating to the administration, powers and duties of administrative authorities.”
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NATURE OF ADMINISTRATIVE LAW : Administrative law is a new branch of law that deals with the powers of the Administrative authorities, the manner in which
powers are exercised and the remedies which are available to the aggrieved persons, when those powers are abused by administrative authorities. Particularly in welfare
state, where many schemes for the progress of the society are prepared and administered by the government. The execution and implementation of these programmes may
adversely affect the rights of the citizens. The actual problem is to reconcile social welfare with rights of the individual subjects. The main object of the study of
Administrative law is to unravel the way in which these Administrative authorities could be kept within their limits so that the discretionary powers may not be turned
into arbitrary powers.
1. Branch of Public Law: Administrative law is a branch of public law that focuses on the legal principles and rules governing the activities of administrative agencies.
These agencies are established by the government to administer and implement laws and policies in various areas such as taxation, healthcare, transportation,
environment, and more.
2. Regulates Administrative Agencies: Administrative law defines the organization, powers, functions, and procedures of administrative agencies. It sets out the legal
framework within which these agencies operate, ensuring that they act within their delegated authority and in accordance with the law.
3. Balancing Power: Administrative law seeks to strike a balance between the need for administrative efficiency and the protection of individual rights and freedoms. It
aims to prevent abuse of power by administrative agencies while allowing them the necessary authority to carry out their functions effectively.
4. Rule-Making and Rule Application: One of the central aspects of administrative law is the process of rule-making by administrative agencies. These agencies have
the authority to create rules and regulations to implement statutes and policies. Administrative law also governs the application of these rules, ensuring fair and
consistent decision-making.
5. Dispute Resolution: Administrative law provides mechanisms for resolving disputes between individuals and administrative agencies. It typically involves
administrative tribunals or specialized courts that have jurisdiction to hear and decide on administrative matters. These bodies offer an alternative to traditional courts
and provide expertise in the subject matter of the disputes.
SCOPE OF ADMINISTRATIVE LAW : Administrative Law as a law is limited to concerning powers and procedures of administrative agencies. It is limited to the
powers of adjudication or rule-making power of the authorities. Thus, it is limited to:
1. Establishment, organization and powers of various administrative bodies
2. Delegated legislation - the Rule-making power of the authorities
3. Judicial functions of administrative agencies such as tribunals
4. Remedies available such as Writs, Injunction etc.
5. Procedural guarantees such as the application of principles of Natural Justice
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6. Government liability in tort

7. Public corporations
Judicial Review: One of the key features of administrative law is judicial review. It allows courts to review the legality and validity of administrative actions, decisions,
and regulations. Courts assess whether administrative agencies have acted within their authority, followed fair procedures, and made decisions that are reasonable and
consistent with the law.
Administrative Procedures: Administrative law sets out the procedures that administrative agencies must follow when making decisions or taking actions that affect
individuals. These procedures often include notice requirements, opportunities for hearings, and the right to present evidence and arguments.
Substantive Standards: Administrative law establishes substantive standards that guide administrative decision-making. These standards require agencies to consider
relevant factors, weigh competing interests, and make decisions that are rational, fair, and consistent with the underlying purpose of the legislation.
Accountability and Transparency: Administrative law aims to promote accountability and transparency in the functioning of administrative agencies. It requires
agencies to provide reasons for their decisions, disclose relevant information, and allow affected individuals to participate in the decision-making process.
Remedies: Administrative law provides remedies for individuals aggrieved by administrative actions. These remedies may include appeals, judicial review, and the
power of courts to set aside or modify administrative decisions that are found to be unlawful or unreasonable.
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REASONS FOR THE GROWTH OF ADMINISTRATIVE LAW

INTRODUCTION : Administrative law deals with the powers of the Administrative authorities, the manner in which the powers are exercised and the remedies which
are available to the aggrieved persons when those powers are abused by these authorities. Administrative law is a part of constitutional law and all concerns of
administrative law are also concerns of constitutional law. The main object of the study of administration law is to unravel the way in which these administrative
authorities could be kept within their limits so that the discretionary powers may not be turned into arbitrary powers.
Reasons for growth of Administrative Law : following factors are responsible for the growth of administrative law:-
1. The Changing Role of the State
2. Inadequacies of the Judicial System
3. Inadequacies of the Legislative Process
4. Scope for Experiments in Administrative Process
5. Avoidance of Technicalities
6. Preventive Measures
7. Effective Enforcement

The Changing Role of the State

One of the primary reasons for the growth of administrative law is the changing role of the state. In the past, the state’s role was limited to maintaining law and order and
providing social welfare. However, in recent years, the state has adopted a more positive policy and has undertaken to perform varied functions. As a welfare state, the
government has expanded its scope to provide education, healthcare and other services to citizens.

Inadequacies of the Judicial System

Another reason for the growth of administrative law is the inadequacy of the judicial system. The judicial system is slow, costly, inept, complex and formalistic. It was
overburdened and could not provide speedy disposal of even important matters. In addition, important problems could not be solved by merely interpreting the provisions
of some statutes.
Instead, it required the consideration of various other factors, which could not be done by the ordinary courts of law. Therefore, industrial tribunals and labour courts were
established, which possessed the techniques and expertise to handle these complex problems.
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Inadequacies of the Legislative Process

The legislative process was also inadequate. It had no time and technique to deal with all the details. It was impossible for it to lay down detailed rules and procedures and
even when detailed provisions were laid down by the legislature, they were found to be defective and inadequate. Therefore, it was necessary to delegate some powers to
the administrative authorities.

Scope for Experiments in Administrative Process

One of the advantages of administrative law is that it provides scope for experiments in the administrative process. Unlike legislation, it is not necessary to continue a rule
until the commencement of the next session of the legislature. Instead, a rule can be made, and tried for some time and if it is defective, it can be altered or modified
within a short period. Thus, legislation is rigid in character, while the administrative process is flexible.

Avoidance of Technicalities
Administrative law represents a functional rather than a theoretical and legislative approach. The traditional judiciary is conservative, rigid and technical. It is impossible
for courts to decide cases without formality and technicality. Administrative tribunals are not bound by rules of evidence and procedure and they can take a practical view
of the matter to decide complex problems.

Preventive Measures
Administrative authorities can take preventive measures, unlike regular courts of law. They do not have to wait for parties to come before them with disputes. In many
cases, these preventive actions may prove to be more effective and useful than punishing a person after he has committed a breach of law. Inspection and grading of meat,
for example, answer the consumer’s need more adequately than does a right to sue the seller after the consumer is injured.

Effective Enforcement
Administrative authorities can take effective steps to enforce the aforesaid preventive measures, such as suspension, revocation and cancellation of licenses, destruction of
contaminated articles, etc., which are not generally available through regular courts of law.
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ORIGIN AND DEVELOPMENT OF ADMINISTRATIVE LAW IN UK, USA, INDIA AND FRANCE
INTRODUCTION : Administrative law has become extremely crucial in the developed society since the relationship of the administrative authorities and the people has
become complex. In order to regulate these complexities some law is necessary, which can help maintain regularity certainty and check misuse of powers vested in the
administration. This increase in the spectrum of responsibilities ushered in an administrative age and an era of administrative law. Administrative has been characterized
as the most outstanding legal development of the 20th-century. This development saw a similar trend in several parts of the world. In this article we will be discussing the
evolution and development of administrative law in India, UK, USA and France.
ORIGIN OF ADMINISTRATIVE LAW IN INDIA:
BRITISH PERIOD
Well-organized administration existed only during the period of the East India Company and only during the British Rule in India, many royal Charters, Acts, Statutes,
and Legislations were passed in different fields of life like transport, labour, and safety, morality, etc.
CHARTER ACTS : The several Charter Acts, which have relevance to administrative law and its growth.
1. Under the Charter Act 1726, attempts were made to separate the executive from the judiciary.
2. The Regulating Act, 1773 empowered the Governor-General and council to make rules, regulations, etc., for the administration of the Government. Such rules etc.
came into force after being published and registered with the Supreme Court and with its consent.
3. In 1807, each Presidency Government was empowered to make regulations for the presidency town and also for the Mofussil places under its administrative control.
4. Charter Act of 1833 empowered the Governor-General in Council to appoint a Law Commission and as a result, the First Law Commission was appointed in India in
1835.
AFTER INDEPENDENCE
After independence, India became a welfare state and the Indian Constitution became a major source the for growth of administrative law.
1. Article 43-A of the Constitution, the State must take steps by suitable legislation to secure the participation of workers in industrial management.
2. Article 45 provides that the state shall endeavour to provide, within 10 years from the commencement of the constitution free and compulsory education for all
children until they complete the age of 14 years.
3. Article 47 provides that the state shall endeavour in raising the level of nutrition and the standard of living of its people and the improvement of public health.
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4. Article 48-A the state shall endeavour to protect and improve the environment and safeguard the forests and wildlife of the country.
5. Article 300 provides for the liabilities of the Government for the torts committed by its servants.
6. Article 311 protects the civil servants by prescribing the procedure to be followed in dismissing terminating and reducing the rank of a public servant.[19]
ROLE OF SUPREME COURT AND HIGH COURTS IN THE GROWTHNOF ADMINISTRATIVE LAW
1. The Supreme Court and the High Courts have been given wide jurisdiction to check the administrative excesses and arbitrariness
2. The judgments of the Supreme Court and High Courts act as precedents to be necessarily followed by Administrative Tribunals in deciding administrative matters.
3. Further, the judiciary takes into consideration the objects and ideals of the social welfare state while interpreting the statutes and their Constitution.
4. Articles 32 and 226 of the constitution provides for judicial review in the form of writs against ultra vires acts of the administrative authorities.
DEVELOPMENT OF ADMINISTRATIVE LAW IN INDIA
1. Welfare Of State: The philosophy of welfare of state is well embodied in the Indian constitution. Post-independence, India adopted a welfare state approach, which
successively increased state activities. In line with the doctrine the basic objective of the State Administration is to attain maximum welfare for the masses. All the
policies of the state should aim at maximization of welfare of the people. With increase in power and activity of the Government and administrative authorities, the
necessity for Rule of Law and Judicial Review of State actions also increased. In the Constitution itself, provisions were made to secure citizens social, economic and
political justice, equality of status and opportunity. The ownership and control of material resources of the society should be so allocated as best to sub-serve the
common good.
2. Delegated Legislation: Delegated Legislation is when the law-making power of the legislature is given to other groups or people, like government officials. This
allows them to create rules to handle everyday issues they encounter. Delegated legislation is useful because it lets these officials try out new ideas quickly. For
example, if they want to test new traffic rules, they can see how well they work and make adjustments based on feedback from the community. If the new rules are
effective, they can keep them; if not, they can fix any problems right away.
3. Establishment Of Courts: The judicial system was not good enough to handle all types of disputes. It was slow, expensive, ineffective, and complicated. The courts
were already overwhelmed, making it hard to quickly resolve even important cases. Many significant issues couldn't be solved just by interpreting laws; they needed a
deeper understanding of various factors that regular courts couldn't provide. As a result, industrial tribunals and labour courts were created, as they had the skills and
knowledge to deal with these complicated problems.
4. Preventive Measures: Administrative authorities can take steps to prevent problems before they happen. Unlike courts, which wait for someone to bring a dispute to
them, these authorities can act on their own. Taking preventive actions can be more effective and helpful than punishing someone after they break the law. For
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example, Freeman pointed out that checking and grading meat helps consumers more than just allowing them to sue the seller after they get hurt. However, our
constitution also recognizes the principle of judicial review, meaning that if the actions of administrative authorities go beyond their powers or violate the law, those
actions can be cancelled or overturned.
5. Legislative Developments: The Right to Information Act (RTI) of 2005 empowers citizens to access government information, promoting transparency and
accountability. Various environmental and social welfare legislation, such as the National Green Tribunal Act and the Right to Education Act, reflect India's
commitment to administrative law principles in addressing contemporary challenges.
IMPORTANT CASES:
1. Kesavananda Bharati v. State of Kerala (1973):
This case is a milestone in the history of Indian constitutional law, introducing the "basic structure doctrine." It affirmed that the Indian Parliament, despite its
power to amend the Constitution, cannot change its fundamental framework. This doctrine has profound implications for the boundaries of legislative and
administrative powers.
2. Maneka Gandhi v. Union of India (1978):
This case saw the Supreme Court broaden the interpretation of the right to life and personal liberty under Article 21 of the Indian Constitution. The court ruled
that any law must be fair and reasonable, leading to the principles of natural justice and procedural fairness.
ORIGIN OF ADMINISTRATIVE LAW IN FRANCE
DROIT ADMINISTRATIVE
The present Administrative Law is the outcome of the French Administrative Legal System called Droit Administratiff.
In France, the Administrative Law, otherwise called Droit Administratiff was fully developed even before the twentieth century but was put into effect by Napoleon in
1800.
Droit Administratiff contained rules relating to the regulation of administrative authorities. It regulated the relationship between public servant and citizen, a public
servant with the Government, and a public servant with other public servants.
Droit Administratiff was defined as the body of rules which regulates the relations of administration and administrative authorities towards the public citizens. It
contained rules regarding the qualifications of Government officials, the rules regarding their appointment, their status, salary, duties, their dismissal, and suspension.
It contained three types of rules:
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1. Relating to administrative officials

2. Operation of public services
3. Administrative adjudications
The Droit Administratiff was the outcome of three principles:
1. Judges of Civil Court enquiring about the administrative actions were not welcome.
2. The encroachment of the Civil Courts in the dealings of the administrative authorities was not welcome. So for breach of Droit Administratiff, the remedy must be
sought only before the administrative Court namely Conseil ‘D’ Etat.
3. Droit Administratiff contains the rules developed by the administrative Courts and not by the laws of parliament.
DICEY’S CRITICISM OF THE DROIT ADMINISTRATIFF
Dicey criticized Droit’administratiff as violative of the Rule of Law. According to him, Droit Administratiff is different from the Rule of Law. He gives the following
reasons in support of his view.
1. Droit Administratiff is a body of separate rules regulating only the Executive, their powers, and privileges.
2. In France, separate Courts namely Conseil ‘D’ Etat applied the Droit Administratiff.
3. The State officials in France enjoyed certain immunities e.g., for Acts of State, the executive authorities are not liable.
4. In France, there is an encroachment on the jurisdiction of ordinary Courts and ordinary law, as they cannot exercise jurisdiction over administrative authorities.
5. The Government Officials can be prosecuted before a Criminal Court, only after getting the prior sanction of Conseil ‘D’ Etat. Because of the above reasons,
Dicey said that the Administrative Law in France did not follow the Rule of Law.
But in England, the Rule of Law was followed, because there were no privileges for the executive authorities. Though Dicey accepts that there can be efficient
administration, discipline, and expert knowledge, the Administrative Court and system were aimed against individual liberties, and hence according to Dicey, ‘Droit
Administratiff’ is not law, as it did not obey ‘rule of law’.

COURTS IN FRANCE
Two types of courts existed in France. They were:
• The first types of Courts in France are Civil and Criminal Courts and they are called Assize and Court Decassation
• The second type of Courts are Administrative Courts called by the name ‘Court of the perfect’ and Conseil ‘D’ Etat.
These two types of Courts are mutually exclusive, i.e., one Court cannot exercise jurisdiction over the other Court.
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In other words, the action of the administrative authorities cannot be questioned before the ordinary Courts, but only before Administrative Courts. Questions like
taxation, election, etc., were all heard only by the judges of the Administrative Courts.

REASONS FOR THE ORIGIN OF ADMINISTRATIVE COURTS

The Administrative Courts in France are the outcome of French political history. During the rule of Louis XIV and Reihlieu, the French Government was highly
centralized. The executive authorities were despotic (Arbitrary) and the Civil Courts could not control them.
Because of the despotism of the administrative authorities during the period of Napoleon, Special Administrative Court and Administrative Law were enacted. The
Administrative Law was known as ‘Droit Administratiff’ and the Administrative Court was called Conseil ‘D’ Etat. The Law Courts were deprived of jurisdiction in
administrative matters and the Administrative Courts began to exercise jurisdiction in all administrative matters.

CONSEIL’D’ ETAT
The Conseil ‘D’ Etat i.e., the highest Administrative Court framed many administrative rules. It was composed of eminent Civil servants of the Government. It heard
cases relating to income tax, pension, election dispute, wrongful dismissal and suspension of servants, etc. It interfered with the administrative actions of the executive on
the ground of error of law, lack of jurisdiction, irregularity of procedure, etc.
It also laid down the powers of each administrative staff of Administrative Courts. It also laid down the necessary guidelines of sanction for starting public works, etc. It
provided relief to the citizens against the excesses of the administration. Its judgments were final. It acted as a consultative body also.

TRIBUNAL DES CONFLICTS

A separate Court named “Tribunal des Conflicts’ decided disputes as to jurisdiction between ordinary Courts and administrative Courts. Only an administrative Court and
not the ordinary Court can raise a case relating to a conflict of jurisdiction.
An equal number of judges from both the ordinary civil Court and from Conseil ‘D’ Etat constitute the Tribunal des conflicts and it is presided over by the minister of
justice. The decision of the Tribunal des conflicts regarding the competency of jurisdiction final.

DEVELOPMENT OF ADMINISTRATIVE LAW IN FRANCE

1. The development of administrative law in France has its roots in the need to regulate the relationship between the state and its citizens, particularly as the state
expanded its functions in the 19th century. The emergence of administrative law can be traced back to the establishment of the Conseil d'État in 1799, which served as
a legal advisor to the government and a court for administrative disputes.
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2. Throughout the 19th century, the principles of administrative law began to take shape, influenced by the growing recognition of individual rights and the necessity for
accountability in public administration. The landmark case of Blanco in 1873 established the principle of state liability for damages caused by public services,
marking a significant step in the evolution of administrative law.
3. The 20th century saw further developments, particularly after World War II, when the French legal system underwent significant reforms. The introduction of the
1958 Constitution reinforced the role of the Conseil d'État and emphasized the protection of individual rights against administrative actions. The establishment of the
doctrine of "droit administratif" solidified the distinction between public and private law, allowing for a more structured approach to administrative disputes.
4. In recent decades, French administrative law has continued to evolve, adapting to the challenges posed by globalization, European integration, and the increasing
complexity of public administration. The incorporation of European Union law has also influenced French administrative practices, leading to a more harmonized
approach to administrative justice across member states.
5. Today, administrative law in France is characterized by its dual function: protecting citizens' rights while ensuring the effective functioning of public administration.
The ongoing development of this legal field reflects the dynamic relationship between the state and society, as well as the commitment to uphold the rule of law in an
ever-changing political landscape.
IMPORTANT CASE :-
BALCO CASE
The landmark case of Blanco in 1873 is pivotal in the development of administrative law, as it established the principle of state liability for the actions of public officials.
This case underscored the necessity for accountability within the administrative framework, laying the groundwork for the legal mechanisms that govern the relationship
between individuals and the state. It marked a significant shift towards recognizing the rights of citizens in the face of administrative power, influencing future legal
interpretations and reforms in administrative law.

ORIGIN OF ADMINISTRATIVE LAW IN UK

The earliest ‘King’s Court’ was called ‘Curia Legis’. Later the ‘Curia Legis’ was divided into three bodies namely:
1. A The ‘Kings Bench’ division deals with crimes and breaches of the peace.
2. The ‘Court of Exchequer’ concerning the revenue disputes.
3. The ‘Court of Common Pleas’ concerning all disputes between one citizen and another citizen.
RULE OF LAW
There were disagreements between the King and the Judges, especially between Chief Justice Sir Edward Coke and King James I. Sir Edward Coke refused to follow the
King's orders when it came to royal powers. This conflict led to Coke being removed from his position as Chief Justice. However, Coke played a key role in creating laws
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that limited the King’s power. He helped create the Petition of Right, which helped protect people from the King's worst actions, and the Rule of Law, which said that
even Kings had to follow the law. He also helped pass the Act of Settlement, which made sure judges couldn’t be easily fired.
The Habeas Corpus Act took away some power from the King and gave it to the Parliament. But sometimes, Parliament itself became too powerful and tyrannical. In
these cases, the courts stepped in to prevent Parliament from abusing its power. In the 18th century, courts introduced special legal orders, called prerogative writs, that
helped protect citizens from unfair actions by the government.

INDUSTRIAL REVOLUTION
In the 18th and 19th centuries, the Industrial Revolution in England resulted in the establishment of many industries and factories. Many labour legislations were enacted.
The parliament set out the main principles in such legislations alone.
Thus, the dawn of Administrative Law began with the Industrial Revolution in England. In course of time, many Administrative Tribunals began to be established and
expedient rules had to be framed based on policy. The inherent problems involved in Administrative Law and its decisions were due to the deficiencies of the Rule of Law
and the sovereignty of parliament.

DONOUGHMORE COMMITTEE
The Donoughmore Committee was appointed in England to investigate the administrative problems. The Commission made the following references:
1. The principle of natural justice must be followed in all administrative proceedings.
2. There must be checks and safeguards against the arbitrary acts of the Administrative proceedings.
3. Though delegated legislation is against the principle of separation of powers, it has become an inevitable evil in the context of modern socio-economic
developments. The Delegated Legislation is deep-rooted and is ever-growing.
4. In delegated legislation, the statutes are passed in skeleton form leaving the details to be filled up by the Administrative authorities. This is not desirable, as it
would give room for arbitrary rules to creep in.
5. Controls over subordinate legislation are inadequate. The parliament has no time and opportunity to keep a constant watch on the executive. The judicial control is
unsatisfactory because of the vaguely defined words in the statutes. Further, the Court proceedings are expensive and time-consuming.
6. Adequate publicity of statutes is not always possible and therefore the delegated legislation will suffer from a lack of knowledge by the public.
7. The Donoughmore Committee calls ‘delegated legislation’ ‘legislation by reference’ due to the relatively simple legislative procedure.
The legislation in the English Parliament had incorporated the report of the Donoughmore Committee. Many administrative agencies arose in England like the Board of
Trade, Railways, Traffic Tribunals, etc.
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Similarly, certain Ministries like Education and Home affairs decided on many administrative cases which were properly cognizable only by Courts. Many autonomous
bodies like Marketing Board and Tribunal, Bar Council, and General Medical Council came into existence and acted quasi-judicially.
In 1895, the Government of England thought it fit that these Agencies must be checked or controlled.

SIR OLIVER FRANKS COMMITTEE

Sir Oliver Franks Committee was appointed to investigate and report on the Minister’s powers. The report made many recommendations which brought about many
changes and results in the functioning of administrative tribunals.
The following are some of the important recommendations:
1. The Administrative Tribunals are permanent parts of the Government machinery.
2. The proceedings of this Administrative Tribunal must be fair and impartial.
3. There must be a uniform system of appeals both to the higher Tribunal and the Court.
4. Legal representation must be allowed before Tribunals.
5. The Presiding Officers of the Tribunal must be legally qualified.
6. The decisions must be published.
7. Tribunals must be set aloof from the department.
The report had some defects also as it did not state the extent of judicial powers of Ministers and Redressal machinery to the affected citizens against the misuse of
powers by administrative authorities.

LANDMARK CASE
RULE IN RIDGE Vs. BALDWIN
Even in the present days, it is felt that in England, there is no developed system of Administrative Law, as is held in Ridge Vs. Baldwin.
Mr. Wade declared that there is no Droit Administratiff in this country. However, the theory is that the Ministers are not above the law and that there is Administrative
Law in England.

DEVELOPMENT OF ADMINISTRATIVE LAW IN UK

Magna Carta (1215):
• Early foundation for limiting the power of the King.
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• Introduced the idea that even the King must follow the law and protect people's rights.
Royal Prerogative:
• The King had special powers (Royal Prerogative) that were unchecked at first.
• Over time, courts started limiting these powers, ensuring the King followed the law.
Judicial Review Begins:
• Courts began checking if government actions were legal, especially during the reign of Charles I (17th century).
• Entick v Carrington (1765) was an important case where the court ruled that the government could not act beyond its legal powers.
Growth of Government Power (18th Century):
• As the government expanded its activities (like managing taxes and public health), the need for administrative law grew.
• Early forms of administrative tribunals (special courts for government-related issues) started to appear.
19th Century – Increased Government Activity:
• The Industrial Revolution led to more government rules and regulations.
• Laws like the Lands Clauses Consolidation Act (1845) helped regulate how the government took land from people for public works.
Post-WWII Growth of the Welfare State:
• After World War II, the government took on more responsibilities, such as social services, healthcare, and education.
• More legal structures were needed to ensure the government acted fairly and within the law.
Judicial Review and Tribunals (20th Century):
• Courts became more involved in checking government actions, ensuring they were lawful.
• Administrative tribunals were created to make it easier for people to challenge government decisions without going to traditional courts.
Human Rights Act (1998):
• The Human Rights Act brought the European Convention on Human Rights into UK law.
• This allowed citizens to challenge public authorities directly in UK courts if their rights were violated.
Freedom of Information Act (2000):
• Citizens were given the right to access government-held information, promoting transparency and accountability.
Modern Administrative Law:
• Today, administrative law ensures that the government acts legally, fairly, and transparently.
• Courts continue to play an important role in protecting citizens from unfair or unlawful government actions.
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ORIGIN OF ADMINISTRATIVE LAW IN USA

The American Administrative Law existed even in 1789, but only in 1887, did it come to be recognized through statutes, like Interstate Commerce Act, etc.
AMERICAN ADMINISTRATIVE LAW AND AMERICAN POLITICS
The American Administrative law had intimate links with American politics, constitutional and public laws, and also the Economic and Social problems of the country.

INTERSTATE COMMERCE COMMISSION

In the Transport system of America, there was an unregulated exercise of power. Many private organizations were competing with one another. The Interstate Commerce
Act 1887 established the Interstate Commerce Commission to prevent excessive changes in rules and discriminatory practices by railways and roadways.
The Commission was an autonomous entity and termed as Administrative Regulatory Commission. In course of time, this Commission was vested with the power to
make rules to entertain and decide cases. The American Courts interfered with the decisions of these Commissions and often set aside their decisions on frivolous
grounds.
HEPBURNRN ACT 1906
To avoid this conflict between the Commission and the Court, the Hepburn Act 1906 was passed. The Act enlarged the powers of the Commission and it was authorized
to hear all social evils on the commercial side.
At present, there are at least 100 such Commissions in the U.S.A. the World war multiplied the number of these Tribunals. These Agencies are now very powerful bodies
and one judge has quoted. “These bodies have become the veritable fourth branch of the Government”.
To check the arbitrary powers of these bodies, the Government appointed many Commissions and among them the Roscoe Pound Commission, and the President’s
committee in 1937 were important. The Humphrey Case and Weiner Vs. The United States has brought about the irregularities committed by the Commissions.
ADMINISTRATIVE PROCEDURES ACT 1946
The Administrative Procedures Act 1946 had to be enacted to regulate the proceedings of these Commissions. The following are some of the important provisions:
1. The rules framed by the body must be published.
2. Sufficient opportunity must be given to both the parties of the suit.
3. There should not be any ‘off the record’ consultation with any person by the hearing officer.
4. The independence of the Hearing Officer must be secured.
5. All reports of Tribunals must be published.
6. Judicial Review must be provided.
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DEVELOPMENT OF ADMINISTRATIVE LAW IN USA

Legislative Developments:
The Administrative Procedure Act (APA) of 1946 provided a framework for administrative agencies' rulemaking and adjudicatory processes, including
requirements for public participation, transparency, and judicial review. Various statutes, such as the Freedom of Information Act (FOIA) and the Government in the
Sunshine Act, promote transparency and accountability in administrative decision-making.
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RELATIONSHIP BETWEEN CONSTITUTIONAL LAW AND ADMINISTRATIVE LAW

INTRODUCTION: - Administrative law is the body of law that regulates administrative actions. It lays down the organization, power, and duties of administrative
authorities. The legal responsibilities of public authorities, the ability of normal courts to supervise administrative authorities, the power of administrative bodies to make
rules, and the quasi-judicial role of administrative agencies are all covered. It has authority over the executive branch and ensures that it treats the public fairly.
BRIEF ABOUT CONSTITUTIONAL LAW
The term “constitution” in French refers to the set of fundamental rules and regulations that govern the actions of a nation-state or any other kind of organization. The
underlying ideals, institutional structure, and procedural requirements of the state are described together with the development paths for each path. Constitutional law is
concerned with how the Constitution and its underlying ideas are interpreted and applied. It acts as the basis for people’s access to a number of fundamental rights, such
as the rights to life, privacy, mobility, and the ability to vote.
1. The Indian Constitution, adopted on 26th November 1949 and enacted on 26th January 1950, is the supreme law of India.
2. It provides the framework for governance, establishing a federal structure of government with a separation of powers between the Executive, Legislature, and
Judiciary.
3. It guarantees fundamental rights to all citizens, such as equality, freedom, and protection from discrimination, while also laying out Directive Principles of State
Policy to guide government action.
4. India follows a parliamentary system, with a bicameral legislature consisting of the Lok Sabha and Rajya Sabha.
5. The Constitution envisions India as a secular nation, ensuring equal treatment for all religions.
6. It is the longest written constitution in the world, with over 450 articles and several amendments, reflecting the changing needs of the country.
7. The judiciary, particularly the Supreme Court, plays a crucial role in upholding the Constitution and safeguarding citizens' rights. Through its comprehensive
framework, the Constitution provides stability and ensures justice, equality, and liberty for all Indians.
BRIEF ABOUT ADMINISTRATIVE LAW
Administrative law is the name given to the legislation that regulates administrative actions. It establishes the composition, scope, and duties of administrative authorities.
It encompasses the responsibilities of government entities under the law, the ability of normal courts to supervise administrative bodies, the power of administrative
bodies to make rules, and the quasi-judicial role of administrative agencies. It oversees the executive branch and guarantees that it interacts fairly with the general
population.
1. Indian Administrative Law governs the actions and powers of public authorities, ensuring that these powers are exercised in a lawful, fair, and reasonable manner.
2. It regulates the relationship between the state and its citizens, providing legal remedies when individuals' rights are violated by public authorities.
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3. Indian Administrative Law is derived from the Constitution of India, statutory laws, judicial decisions, and administrative practices. It includes principles like
delegated legislation, where Parliament grants the executive power to create detailed rules, and administrative tribunals, such as the Central Administrative Tribunal
(CAT), to resolve disputes involving government actions.
4. Judicial review allows courts to examine whether administrative actions comply with the Constitution and laws, while principles of natural justice ensure fairness in
decision-making.
5. The system also includes Public Interest Litigation (PIL), which empowers citizens to challenge administrative actions in court, promoting accountability and
transparency. In essence, Indian Administrative Law ensures that government actions are lawful, accountable, and protect individual rights.
RELATIONSHIP BETWEEN CONSTITUTIONAL LAW AND ADMINISTRATIVE LAW
Administrative law and constitutional law are closely related to one another. Both laws are parallel to one another, which means that if one of the two laws is absent, the
other cannot stand on its own. They are interconnected. Because of this, we can say that while constitutional law deals with the fundamental principles relating to the
organization and powers of different state organs and the relationship between these organs and the people, administrative law deals with the structures, rights, duties, and
responsibilities of administrative authorities.
o It is true that both constitutional law and administrative law are parts of the public law which indicates that the constitutional law is the mother of administrative law
and as a result, it cannot be possible to separate from each other.
o In constitutional law, arbitrary action is limited up to their norms and principles of administrative law of fairness that are reasonable.
o Administrative law deals with those organizations, powers, functions, which indicate the duties of administrative authorities while on the other hand constitutional law
deals with the general principles that are relating to the organization and powers of various organs of the state and also the relationship of these organs with the
individuals.
The Genus-Species Relationship
There is a genus-species relationship that tells us that the Administrative law has been defined as the law which is relating to the administration which helps us to
determines the organization, powers, and duties of administrative authorities separately. This definition of the laws does not make any distinction from administrative law
to constitutional law. Along with this, this definition is much wide because it shows that the law which determines the powers of administrative authorities in dealing with
the substantive aspects of these powers. It also deals with such matters as public health, housing and country planning, etc. which are not included under the scope of
administrative law. Administrative law, however, deals with these matters like as the Constitution has embodied these laws for the welfare of the State. According to
Prof. Sathe “Administrative law is a part of constitutional law that is why all the concerns of administrative law are also the concerns of constitutional law.”
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It can therefore be inferred that constitutional law has a wide sphere of jurisdiction, with administrative law occupying a substantive part. In other words, constitutional
law can be termed as the genus of which a substantive portion of administrative law is the species.

The doctrine of watersheds in administrative Law

This doctrine of the watershed is very necessary because it gives a base to establish a proper demonstration of the particular boundaries for the proper functioning of both
laws. It defines the relationship between both the law that were defined by various authors like Locke, Holland, and many more. The definitions of these authors clearly
indicate that these laws are interconnected with each other.

Expansion
It is considered that Administrative law came into existence for fulfilling the needs and the demands of both the people and the state. So, as a result, both Constitutional
law and Administrative law are separated from each other but they both depend on each other. But even we can see that they still overlap at certain places but cannot be
completely separated from each other because it is considered that the origin of Administrative law takes place from Constitutional law. But there is a need for this law as
a separate legal discipline to control the arbitrary action of administration and to protect the rights of both an individual and the public at large. Its essence is found in
every branch of law that we cannot be ignored in any way.
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DELEGATED LEGISLATION:
O NATURE AND SCOPE
O FACTORS LEADING TO THE GROWTH OF DELEGATED LEGISLATION
O CLASSIFICATION OF DELEGATED LEGISLATION
O RULES AND PRINCIPLES OF DELEGATED LEGISLATION
O CONTROLS OF DELEGATED LEGISLATION
O SUB-DELEGATION

INTRODUCTION :- The concept of "delegated legislation" has shaped modern democratic systems, playing a critical role in the development and function of
administrative law. With the increasing complexities of governance and administration, the concept of delegated legislation has become an indispensable aspect of
legislation worldwide. Delegated legislation in administrative law alternatively termed subordinate or secondary legislation, pertains to legal provisions formulated by
individuals or entities granted authority by the legislative body to establish detailed regulations under a particular Act of Parliament. The legitimacy of delegated
legislation is derived from an enabling Act enacted by the legislature.
MEANING :- In every country the government have three organs “legislation, executive and judiciary”. legislation works as to make laws and executive worked as to
execute laws which are made by the legislation and judiciary to interpret law. In every country legislation makes law that’s why its called supreme authority also.
But if the law is made by any other organ other than legislation or the authority to make law is delegated by the legislation then its called delegated legislation. Means law
made by the authority other then the legislature.
“According to Salmond, legislature is either supreme or subordinate and the subordinated authority is dependent for its continuation and existence on the superior
authority.”
Delegated legislation is also known as 'sub-ordinated legislation', because the legislative power of the organ which makes it are limited by the statue which confers such
power and thus it is valid only if it is within the limits of the statute.
SCOPE OF DELEGATED LEGISLATION
The scope of delegated legislation refers to the authority granted by an Act of Parliament (or primary legislation) to a subordinate body or individual to make detailed
laws within a specific framework. It allows for the creation of laws on technical, administrative, or local matters that do not require full parliamentary approval. Delegated
legislation typically includes statutory instruments, orders in council, bylaws, and regulations, and is made under the power conferred by an enabling act. The authority
for creating delegated legislation is limited by the enabling act, which sets out the areas and conditions under which it can be applied. While it provides flexibility and
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efficiency in law-making, it also ensures that the laws made through delegated authority remain consistent with the primary legislation and constitutional principles.
Additionally, delegated legislation is subject to parliamentary scrutiny, judicial review, and the potential for public consultation, ensuring oversight and accountability in
its application.
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FACTORS LEADING TO THE GROWTH OF DELEGATED LEGISLATION

The growth of delegated legislation has been influenced by several factors, primarily related to the increasing complexity of governance, the need for efficiency, and the
demand for more specialized regulation. Key factors include:
1. Complexity of Modern Governance: As societies grow and evolve, the legal and regulatory framework required to govern them becomes increasingly complex.
Legislative bodies often do not have the time or expertise to address every specific issue in detail, leading to the delegation of law-making powers to specialized
bodies or agencies.
2. Need for Technical Expertise: Many areas of law, such as environmental regulations, health and safety standards, or financial regulations, require specialized
knowledge. Delegating the power to create laws in these areas allows experts to design more effective and nuanced regulations that Parliament may not be equipped
to handle directly.
3. Flexibility and Efficiency: Delegated legislation offers a more flexible and efficient means of governance. It allows for quicker responses to emerging issues,
technological advancements, or changes in societal needs without the need to pass new primary legislation each time. This ensures that laws can be updated or
amended in a timely manner.
4. Volume of Legislation: The sheer volume of laws and regulations needed to govern modern societies makes it impractical for a legislature to draft and pass all
necessary laws through the regular parliamentary process. Delegated legislation helps manage this by allowing routine, administrative, and technical matters to be
handled outside the parliamentary process.
5. Political Considerations: In some cases, governments may prefer to delegate certain law-making functions to avoid direct political controversy. By entrusting
specialized bodies with the creation of certain regulations, politicians can avoid being directly responsible for decisions on controversial or technical matters.
6. Globalization and International Standards: As countries interact more on the global stage, international agreements and standards often require national laws to
adapt quickly. Delegated legislation allows for the swift implementation of international norms and treaties without the lengthy process of enacting new primary
legislation.
7. Local Autonomy: Delegated legislation also enables local authorities or bodies to create laws tailored to specific regional or local needs. This is particularly
important for decentralized systems of government, where local needs may vary significantly from national concerns.
8. Judicial and Administrative Review Mechanisms: The establishment of judicial review mechanisms and administrative oversight has allowed for greater control
over delegated legislation, ensuring that such laws remain within the framework of primary legislation, contributing to its continued growth.
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9. Pressure on Parliament: parliament is already overburdened, and it is impossible for parliament to make laws on each and every matter, and hence it tends to
delegated its power to subordinated authority.
10. Flexibility: parliament amendment is a very slow and complicated process but on the other hand amendment in the delegated legislation is way easier and less
complicated process.
11. Experiments: executives can experiment via delegated legislation, that is they can make laws, implement them for some time and if the laws are not in public interest
or tend to violate any other law, then they can be removed. For example, in traffic matters of the road, certain rules may be implemented for some time and could be
removed if not effective.
12. Emergency: in times of emergency, wide powers are given to executives to deal with the situation and hence delegated legislation is way more effective.
Technicality in matters: with advancements in society, things have become more twisted, technical, and complicated, and thus legislation needs an expert for every topic.
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CLASSIFICATION OF DELEGATED LEGISLATION

The classification of delegated legislation serves as a crucial framework for understanding its diverse forms. These classifications of delegated legislation include title-
based, discretion-based, purpose-based and authority-based categories.
1. TITLE – BASED CLASSIFICATION
2. DISCRETION – BASED CLASSIFICATION
3. PURPOSE –BASED CLASSIFICATION
4. AUTHORITY – BASED CLASSIFICATION
TITLE – BASED CLASSIFICATION OF DELEGATED LEGISLATION
In this type of classification, an act can empower an authority to make laws, orders or bye – laws without strict limitations on the variety of legislative provisions. The
authority can delegate power in various ways, including:
• From a central act to the central government.
• From a central act to a state government.
• From a central act to a statutory body.
• From a state act to the state government.
• From a state act to statutory bodies.

DISCRETION – BASED CLASSIFICATION OF DELEGATED LEGISLATION

Conditional legislation involves granting the executive discretion to bring an act into operation upon the fulfilment of specific conditions. This type of legislation provides
control without delegating law – making power. In conditional legislation, the legislature creates a complete law and the executive’s sole duty is to apply the legislation
after fulfilling the prescribed conditions. For instance, in the case of M.P High Court Bar Association VS. Union of India (2004), the court upheld the validity of the
provision empowering the state government to abolish the state administrative tribunal.

PURPOSE – BASED CLASSIFICATION OF DELEGATED LEGISLATION

Parent acts may empower the executive to further delegate power to subordinate authorities, known as „Sub – Delegation.‟ Sub – Delegation occurs when the parent
statute confers legislative power to the executive, which then delegates it to a subordinated authority. The parent act can allow Sub – Delegation to a maximum of four or
 25

five degrees. However, the Latin maxim “Delegatus non potest delegare” generally applies, meaning “no delegated powers can be further delegated.” Exceptions to this
rule include express and implied powers of sub – delegation. In the case of Central Talkies Limited VS. Dwarka Prasad (1961), where the U.P Control of Rent and
Eviction Act allowed the District Magistrate to authorize eviction suits, the court held that since the power to further delegate was granted by the statute itself, it did not
constitute excessive delegation.

AUTHORITY – BASED CLASSIFICATION OF DELEGATED LEGISLATION

This classification of delegated legislation is based on the nature and extent of power conferred and the purpose for which such power can be exercised. Various powers
are delegated, including:
POWER TO BRING AN ACT INTO FORCE
Example: In the case of A.K. Roy VS. Union of India (1982), the Supreme Court affirmed that the government has the authority to enact an Act, emphasizing that this
power should not be excessively exercised. Example: The Legal Services Authority Act, Section 1(3) specifies that it will come into force on a date prescribed by the
central government.
POWER TO INCLUDE AND EXCLUDE
This involves the addition or removal of any person, commodity, item, etc., to the act. Example: The Minimum Wage Act empowers the state government to add or
remove any employment for which the minimum wage should be fixed.
POWER TO FILL IN DETAILS
Legislation often provides a „skeleton framework,‟ with details left to be filled by the subordinate authority. Example: Under the Essential Commodities Act, substantive
law-making power is given to the central/state government, allowing them to fill in the gaps through delegated legislation.
POWER TO MODIFY
The executive may be given the power to modify or change the law without altering its fundamental nature. In the case of Rajnarain Singh VS. The Chairman, Patna
Administration (1954), the court held that subordinate authorities can make incidental changes to the law, provided the modifications are not substantial.
TRANSFER OF LEGISLATIVE AUTHORITY
In Re The Delhi Laws Act, 1951, established the principle that while the authority to amend existing laws can be delegated to a subordinate authority, the power to amend
the fundamental structure of a law cannot be transferred. This ensures that the essential components of the law are safeguarded while allowing necessary amendments by
executive or subordinate authorities.
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RULES AND PRINCIPLES OF DELEGATED LEGISLATION

For simplicity of reference, the accompanying steps are drawn from the Queensland legislation. The Commonwealth approach is to a great extent, however not exactly,
the equivalent:

1. One of the initial steps will be to learn whether the document being referred to is without a doubt a piece of delegated legislation. Both Commonwealth and
Queensland enactment addresses that question.
2. Another significant thought when interpreting delegated legislation is whether it is as a matter of fact substantial or valid, including whether it is inside the extent of the
power under which it was made and whether it is steady with the empowering Act.
3. The core value is that delegated legislation is to be interpreted as working "to the full extent of, however not to surpass, the power presented by the law under which it
is made". That is if any piece of the assigned enactment surpasses the power allowed by the empowering Act, at that point, it is to be perused down so as not to surpass
that power.
4. The next proposition is that many, yet not all, of the provisions of the Interpretation Act, 1954 (Qld) will likewise apply to delegated legislation as though that
designated enactment were an Act of Parliament. For instance:
(a) Headings, examples, notes (however not footnotes), calendars, informative supplements and punctuation are completely considered to be a piece of the delegated
legislation.
(b) Any examples utilized in the delegated enactment are "not thorough" and, while they can't constrain the significance of a provision they "may broaden" the importance
(in spite of the fact that, in the instance of irregularity, the provision beats the example).
(c) When deciphering a provision of delegated legislation, the interpretation that will best accomplish the reason for the enactment is to be preferred to some
other interpretation.
d) When interpreting a provision of delegated legislation, thought might be given to "outward material" in order to decipher a "questionable or obscure" provision; to give
an interpretation that keeps away from a "plainly ludicrous" or unreasonable outcome acquired from the "common meaning" of the provision, or to affirm the
understanding passed on by the common meaning.
(e) If the designated enactment requires an individual to make a decision to "give composed reasons for the decision (regardless of whether the articulation 'reasons',
'grounds' or another articulation is utilized)", at that point the individual "should likewise set out the discoveries on material inquiries of fact; and refer to the proof or
other material on which those discoveries were based".
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(f) Part 8 of the Interpretation Act, 1954 (old), which manages different terms and references, additionally oversees the interpretation of designated enactment. This
incorporates the rules that "words in the solitary incorporate the plural" (and vice versa), reference to an individual, for the most part, incorporates a reference to a
corporation, references to an office or jurisdiction is impliedly a reference to that office or purview in Queensland, and (in connection to powers) "may" signifies
prudence and "must" signifies the "power is required to be exercised. The Interpretation Act, 1954 (old) concepts of separation, time and age are applicable to
delegated legislation.
(h) If a form is prescribed or affirmed under delegated enactment, severe consistency with the form isn't vital and substantial compliance is adequate.
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CONTROLS OF DELEGATED LEGISLATION

There are many reasons for introducing a control mechanism of delegated legislation, such as:
1. It guarantees transparency and accountability in the legislative process. Delegated legislation gives executive or subordinate agencies considerable authority to
implement laws without the involvement of the legislature. Without adequate checks and balances, these authorities can misuse the power delegated to them.
2. A check on these powers is made possible by the implementation of control mechanisms, such as parliamentary control or judicial review, which guarantees that the
delegated law stays within the limits of its authority and serves the public good.
3. Control mechanisms serve as safeguards to make sure that the delegated law does not violate the rights and freedoms of any individual or go beyond the limits of its
original purpose. This mechanism helps in preserving the rule of law.

There are three forms of control over delegated legislation:

1. JUDICIAL CONTROL
There are basically two tests applied for deciding the validity of delegated legislation by way of judicial control.
a. Substantive ultra vires
b. Procedural ultra vires
Meaning of Ultra Vires: ultra vires means 'beyond power or authority'. An act is an ultra vires act if it is done by someone who is acting beyond his/her jurisdiction.

Substantive ultra vires

When act of the legislature is in excess of power conferred on the legislature by the constitution, then the legislature is said to be ultra vires the constitution. Similarly,
when subordinate legislation goes beyond the authority of delegated legislation the act is ultra vires, and this is known as substantive ultra vires.
Under following circumstances, the delegated legislation can be declared invalid on ground of substantive ultra vires
• Parent act is unconstitutional
If the parent act conferring power on the subordinate authority is itself unconstitutional then the delegated legislation is also unconstitutional or ultra vires.
“In the case of Chintamanrao Vs. State of M.P, 1951, SCR 759 the parent act authorised the Deputy Commissioner to prohibit manufacturing of bidis in some areas.
Court held that order passed by deputy commissioner under the act is ultra vires and even the parent act is ultra vires the constitution as it violates the fundamental
right to carry on any trade, business or any occupation, under Article 19 of the constitution.”
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• Delegated Legislation is ultra vires the constitution

If the statue or parent act is constitutional but the delegated legislation is ultra vires the constitution, then the delegated legislation will be declared invalid. Same was
held in the case of Air India vs. Nargesh Meerza, 1981, 1981 AIR 1829, 1982 SCR (1) 438. where a regulation was framed by Air India providing that service of an
air hostess will be terminated on her first pregnancy, this was held violative of Article 14 of Constitution.
“In the case of D.S Nakara vs. Union of India, 1983 SCR (2) 165 a scheme was introduced that provided higher pension to person retiring before a particular date,
and lower pension to others retiring after such date, this was delegated legislation was held to be violative of Article 14 of the Constitution.”

• Delegated legislation is inconsistent was parent act

It is also important that even if the parent act and delegated legislation both are constitutional but the delegated legislation is inconsistent with the parent act, then such
delegated legislation will be invalid.
“In Indian Council of Legal Aid & Advice vs. Bar Council of India, 1955, 1995 AIR 691 rule was framed by bar council barring enrolment as advocate of person who
had completed 45 years of age. However, Parent act only enabled bar council to lay down conditions subject to which an advocate shall have right to [Link],
the rule was held to be inconsistent with the parent act.”

• If the delegated legislation is mala fide

In the case of Indian Express Newspaper [Link]. vs. Union of India (1985), in this case supreme court held that 'unreasonableness' is a ground of judicial review
which is available to determine the validity of the delegated legislation.

• Where delegated legislation includes 'ouster clause'

The delegated legislation may contain a clause stating that its validity shall not be questioned in any legal proceeding and tends to keep itself away from the scope of
judicial review. This is known as 'ouster clause'.

• Where delegated legislation is arbitrary

In India arbitrariness is not a ground for declaring a subordinate legislation ultra vires or invalid, but it is included within Article 14 of Constitution, hence any rule
that violates the constitution is invalid.
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• Where delegate further delegates

'Delegatus non potest delegate' as mentioned above this maxim means that no delegated power can be further delegated, until and unless the parent act itself
authorises aur permits such further delegation.
Procedural ultra vires
When a subordinate legislation fails to comply with the procedure prescribed by the parent act, it is knowns as procedural ultra vires. While framing rules, parent act may
require the delegated legislation to observe a certain procedure, such as discussion with particular bodies or publication of draft rules, etc.
It is binding on the delegated legislation to comply with these procedural requirements, and if such procedural requirements are not followed, then the rule so formed will
be invalidated. But these procedural requirements are not always mandatory.
Types of procedural control:
1. Consultation
2. Publication

1. Consultation
One of the techniques adopted by courts to check and control exercise of legislative power by the subordinate authority, is the process of consultation. It act as a safeguard
against possible misuse of legislative authority.
In order to keep the legislative process open, accountable, and inclusive, consultation is essential. By embracing many points of view, areas of expertise, and experiences,
it helps to improve the quality of delegated legislation. Legislators can detect possible problems, unexpected repercussions, and practical difficulties related to new
legislation by including stakeholders in the consultation process.

2. Publication
Publication means the action of making something generally know, or to make something public.
The public must have access to the law and they should be given an opportunity to know the law, hence, they must be made aware of delegated legislation by way of
publication.
In the case of Harla vs. State of Rajasthan, 1951 AIR 467, 1952 SCR 110 legislation was passed by the council and was not made to know to general public. Hon'ble court
in this case held that publication of laws is important.
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Publication can be of two types:

a. Previous publication
b. Post publication
• Previous publication
In this type of publication rules are made known to general public before they are made final or applicable. First the draft of the proposed rule shall be published,
followed by the date on which such rule will come into effect, further suggestions and advice for such rule will be taken into consideration. Previous publication gives
an opportunity to affected persons to provide suggestion in the rule made.
In Tulsipur sugar co. vs. notifies area committee,1980, it was held that it is not mandatory for every rule or delegated legislation to opt for previous publication, it
depends upon statute to statute, few statutes give provision for previous publication while other do not.

• Post publication
"Ignorantia Juris non excusat" it means ignorance of law is not an excuse, after the law is made available for public.
In the very famous case of State of Maharashtra vs. M.H George, 1964, German national Mayer Hans George was found guilty of violating Section 23A of the
Foreign Exchange Regulations Act of 1947 (repealed) by importing gold into India without the Reserve Bank of India's consent also a notification, dated 8
November,1962 was published in the Gazette of India, stating the same the accused was sentenced to a year in jail. Authorities from the Customs office proved that
Mr. George was attempting to cheat the government by smuggling 34 kilogrammes of gold. The defendant took the defence of 'ignorance of law; on which the court
held that, as notification was published in Gazette, it will be presumed that every individual is aware of the law day after such date on which the law is published.

2. LEGISLATIVE CONTROL
If Parliament delegates legislative power to the executive, it must also ensure that those powers are properly exercised and there is no misuse of the authority.
The objective of such control is to keep watch over the rule making authority and provide criticism if they abuse their power.
Forms of legislative control:
Lying on table
it informs the legislature as to what rules have been made by the subordinate authority. It provides for an opportunity to question or challenge the rules so made.
There are three effects of lying on table:
c. Where the parent act requires mere lying of rules, they will come into effect as soon as they are made
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d. If parent act provides for annulment by legislature, rule comes into effect immediately, but if it is disapproved will be invalid.
e. If the act provides draft rules to be placed before legislature, rules will come into effect only after approval.

Scrutiny committees
In India, there are two scrutiny committees:
1. Lok Sabha committee on subordinate legislation.
2. Rajya Sabha committee on subordinate legislation.
The function of committee is to examine and report the respective house, and report the respective house, whether the power to make rules is being properly exercised by
subordinate authority.
They act as a watch dog which bark and arouse their master if there is an invasion on the premises.
3. OTHER CONTROL
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SUB-DELEGATION
INTRODUCTION:- Delegation and sub-delegation of powers are concepts that are commonly used in administrative law to distribute decision-making authority within
an organization or government structure.
MEANING OF “DELEGATION” UNDER ADMINISTRATIVE LAW
The term “delegation” refers to the granting of authority by an entity or authority to another person or agency to perform certain tasks or exercises discretion on its behalf.
It does not imply a complete transfer or surrender of powers by the delegating person or entity but rather involves conferring the authority to perform actions that the
delegating person would otherwise have to undertake themselves. The person or entity granting the delegation retains a general control over the activities of the delegate
and does not divest themselves of their rights.

SCOPE OF “DELEGATION” UNDER ADMINISTRATIVE LAW

Legal scholars do not typically use the term “delegation” to suggest that the delegating person or entity relinquishes their powers in a manner that strips them of their
rights. Instead, it signifies the granting of authority or assigning of tasks to another party. The delegation allows the delegate to act on behalf of the delegating person or
entity within the scope of the delegated authority.
Even if the authority retaining control over the delegated discretion maintains a general oversight or control over the activities of the delegate, the act of entrusting the
exercise of discretion to the delegate still qualifies as “delegation” and falls within the scope of the maxim.
The crucial factor is whether the authority exercises a substantial degree of control over the actual exercise of discretion, to the point where it can be said that the authority
directs its own mind to the matter. If such control exists, then, in legal terms, there is no “delegation,” and the maxim does not apply.
In summary, “delegation” refers to the granting of authority or assignment of tasks by an entity or authority to another person or agency. It does not imply a complete
surrender of powers by the delegating entity. The application of the maxim depends on whether the delegating entity exercises a significant degree of control over the
exercise of the delegated discretion, thereby directing its own mind to the matter.
MEANING OF “SUB-DELEGATION” UNDER ADMINISTRATIVE LAW
In administrative law, sub-delegation refers to the process by which a person or entity that has been granted administrative powers or authority by a higher authority
further delegates some or all of those powers to another person or entity.
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It involves the transfer of authority from the original decision-maker, known as the delegating authority, to a third party, known as the sub-delegate, who then exercises
the delegated powers on behalf of the delegating authority.
This delegation allows for the efficient and effective administration of public affairs by distributing the workload and decision-making responsibilities.
OBJECTIVE AND NEED FOR SUB-DELEGATION
The practice of sub-delegation, or further delegation of authority, is supported by considering the following factors:
1. Power of Delegation: It is argued that when an authority delegates its powers to another person or agency, it inherently includes the power of further delegation. This
means that the delegate has the authority to sub-delegate the assigned powers to another person or agency. This view is based on the principle that the delegate should
have the flexibility to distribute the workload and ensure efficient administration of the delegated powers.
2. Ancillary to Delegated Legislation: Sub-delegation is seen as an ancillary or subsidiary process to delegated legislation. Delegated legislation refers to the laws or
regulations made by an authority other than the legislature, usually the executive, under the powers delegated to them by the legislature. Sub-delegation allows the
executive to authorize and delegate specific tasks or decision-making authority to lower-level officials or agencies within its own administrative structure. By
allowing sub-delegation, the efficient functioning of the delegated legislation can be ensured, as it enables the executive to delegate tasks to those with appropriate
expertise and jurisdiction.
3. Preserving Legislative Authority: Objecting to sub-delegation could potentially undermine the authority granted by the legislature to the executive. The legislature
delegates certain powers to the executive to enable effective administration and implementation of laws. If sub-delegation is prohibited, it may restrict the ability of
the executive to distribute tasks and responsibilities, hindering the efficient functioning of the delegated legislation. Therefore, permitting sub-delegation is seen as
essential for maintaining the intended authority and functionality of the delegated powers.
IMPORTANT CASE LAWS ON DELEGATION
In the case of Hamdard Dawakhana v UOI, the Supreme Court of India addressed the issue of delegation of legislative power by the legislature to the executive. The
court held that while there is no specific bar in the Indian Constitution against such delegation, it is well established that essential legislative functions cannot be
delegated.
The legislature must lay down the legislative policy itself, and it cannot create a parallel legislature by transferring this power to the executive. Delegation of legislative
power should not amount to an abdication of the essential legislative functions.
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This case emphasized the principle that the legislature must retain control over the legislative policy and cannot entirely delegate its responsibility to the executive. While
certain powers can be delegated, the core functions of determining the legislative policy and enacting laws must remain within the domain of the legislature itself.
In the case of Ultra Tech Cement Limited v. UOI, the Kerala High Court addressed the issue of sub-delegation of legislative power. The court held that sub-delegation
refers to the further delegation of the same power that was originally delegated by the legislature.
The governing principle is that legislative powers must be exercised by the delegatee (the entity to whom the power is initially delegated) and cannot be further delegated
unless expressly permitted by the parent law.
The court invoked the principle of delegatus non potest delegare. Unless the parent law explicitly allows for sub-delegation, the original delegatee, such as the Central
Government in this case, cannot transfer its power to any other officer or entity.
This case highlighted the importance of maintaining the integrity and accountability of the delegation process. It emphasized that the authority granted by the legislature
should be exercised by the delegatee itself, ensuring that the legislative powers are not dispersed to multiple levels or entities without proper authorization.
 36

CASE LAW : RAM JAWAYA KAPUR V. STATE OF PUNJAB, AIR1955SC549

INTRODUCTION :- The three pillars of democracy, i.e., the judiciary, the executive, and the legislative, are essential to ensuring the smooth functioning of the state. In
a democracy, it becomes essential to ensure that there is a separation of power between the organs of democracy and that each organ works in its respective field. The
three organs keep a check on the activities of others and ensure no breach of power occurs. But in a few instances, some acts have been brought up for questioning, as the
doctrine of separation of power was breached by those acts.
In this case, the power of the executive was questioned, as it was alleged that the executive had crossed the boundaries of power separation and infringed upon the
rights of individuals.
FACTS OF THE CASE
1. For an extensive stretch between 1905 and 1950, in the state of Punjab, the schooling system had to refer to the books that were approved by the education department of
Punjab. All the schools had to follow the course proposed by the education department of the state. For the purpose of approval, various publishers and authors had to
submit their proposals with their own money to the Government of Punjab. Then, the department would approve some books according to the regulations.
2. The procedure that was conducted was that the department would select books numbering somewhere in the range of 3 to 10 or greater for each subject as elective reading
material for that certain subject. After this, the material is passed on to the headmasters of various schools, and they are allowed to choose any of the elective books from
the list.
3. After the partition of erstwhile Punjab in the 1950s, it was divided into three zones. The procedure was changed by the government by passing certain resolutions. The
government took it upon itself to prepare reading material on specific subjects, such as farming history and social examinations, without inviting publishers or writers. On
all the remaining subjects, the earlier procedure was altered, and instead of a list, only one single text was approved for subjects. As a charge for approval, the government
acquired 5% of the sale price as royalty on all approved books.
4. Through a notification dated August 9, 1952, it discarded 'Publishers' and only accepted proposals from 'Authors and Others'. Also, the writers whose books were selected
had to enter into an agreement with the government in the forms prescribed by the government. The main subject of the agreement was related to copyright. The copyright
of the book would absolutely vest in the government, and the authors would get 5% royalty on the sale of textbooks at the price specified in the list. This infringed on the
rights of authors and publishers, as the copyright of the book was vested with the government.
5. The petition was filed by 6 petitioners, who contended that the restriction imposed on them by the government was unreasonable and unfair according to the principles
laid down by the Constitution. The restriction was a way to oust the petitioners from business. The petitioners put forth the argument that the actions of the executive were
 37

'ultra-vires' as they did not have any legislative backing and the executive overreached its functions. The petitioners also challenged the restrictions as being violative of
the fundamental right under Article 19(1)(g) to practise and follow any business or trade practice that was granted to them.
ISSUES RAISED
1. Whether there was a violation of the fundamental right to practise any profession, as the state created a business for school books, and whether this act of the state is
within the powers or considered ultra-vires?
2. Whether the executive required specific legislation to do so or whether it could have been done by an executive act?

ARGUMENTS OF THE PARTIES IN RAI SAHIB RAM JAWAYA KAPUR V. STATE OF PUNJAB (1955)
PETITIONERS
The petitioners in the case put forward three main contentions:
• The petitioners argued on the basis of legislative backing, stating that the executive does not hold any legal backing to make laws, as it is the duty of the
legislature, and it is not within the scope of the executive's powers to set up a trade or business activity.
• The executive had overreached its power as an executive body by setting up a monopoly in the fields of publishing and trade.
• The petitioners challenged the decision of the executive to deprive the publishers of their due rights to business and contended that the government cannot deprive
them without a proper law and due compensation as per Article 31. of the Constitution.
• The petitioners also contended that the executive has violated the right to practise any business and trade under Article 19(1)(g) without any reasonable restriction
under Article 19(6), contending that the act of the executive was ultra-vires
RESPONDENT
In response, the government contended that it was well within their rights and duties to conduct those activities, and it was inferred as being under the powers of the
executive without any overlap of the powers, as apart from the maintenance of laws, it is the duty of the executive to ensure social welfare. The government also
contended that the activities that were being conducted were done after following the procedure by stating out the detailed steps involved, especially financial, due to
which they cannot be said to be ultra- vires of the Constitution and are not violative of the fundamental rights of the petitioners.
 38

LAWS INVOLVED IN THE DECISION

o Article 19(1)(g)- All citizens have the right to practise any profession or to engage in any type of business, occupation, or trade, unless the activities are deemed to be
unlawful as per the law and subject to the restrictions that have been mentioned in Article 19(6) of the Indian Constitution
o Article 19(6)- Ensures that the freedom that has been mentioned in Article 19(1), does not restrict the government from making any new laws, or replacing any
existing laws for social welfare.
o Article 31-Protects the property rights of the citizens, it was later removed by the 44th Constitutional Ameridment in 1978. This Article stated that no citizen can be
deprived of their legitimate property rights unless the law states so. Article 31(2) mentions about the compensation that needs to be paid to the property owner, the
amount has not been stated in the Constitution, but it will be decided by the law.
o Article 32- Provides anyone the right to file a case before the Supreme Court in order to pursue justice whenever they believe that their legal rights have been
violated. Individuals have been given an assured right to ensure that their rights have not been infringed by directly approaching the Supreme Court through the power
of Writs. The five writs that have been given by the Constitution are Habeas Corpus, Mandamus, Certiorari, Quo Warranto, Prohibition.
o Article 154- This Article deals with the executive power of the state that lies with the Governor of the state, and he himself can use this authority or delegate it to the
Individuals subordinate to him.

JUDGEMENT IN RAM JAWAYA VS STATE OF PUNJAB

The Supreme Court held that the business of printing and publishing textbooks was within the competence of the executive government without needing specific
legislation. The petitioners did not possess a fundamental right under Article 19(1)(g) of the Constitution, making the question of government monopoly under Article
19(6) irrelevant. Consequently, the court dismissed the petition with costs.
REASONING BEHIND THE COURT'S DECISION
o Written Constitution and Fundamental Rights
The court emphasized that the Indian Constitution is a written document, ensuring that even the legislature cannot override the fundamental rights guaranteed to citizens.
The business in question, carried out by the petitioners, involved printing and publishing books, including textbooks for schools in Punjab. The petitioners had no right to
demand that their books be accepted as textbooks by the government. The publishers retained their right to print and publish books and sell them, but they had no right to
compel the government to approve their books as textbooks. This distinction was crucial in determining that the government's actions did not infringe upon any
fundamental rights.
 39

o Executive Power and Legislative Control

The court also noted that the executive government of a state has the constitutional power to carry on trade or business, subject to legislative control. If the trade or
business involves the expenditure of public funds, parliamentary authorization is necessary, either directly or through statutory provisions. In cases where the government
needs to encroach upon private rights to conduct its business, specific legislation would be required to sanction such actions. However, in this case, the petitioners did not
have any fundamental rights infringed upon by the government's actions.
 40

CASE LAW : RE DELHI LAWS ACT, AIR1951SC332

FACTS OF THE CASE
The case revolved around three legislative acts: The Delhi Laws Act, 1912, The Ajmer-Merwara (Extension of Laws) Act, 1947, and The Part C States (Laws) Act, 1950.
These acts granted the Central Government the power to extend, with modifications and restrictions as it saw fit, any enactment in force in any part of India to the
Province of Delhi, the Province of Ajmer-Merwara, and any Part C State, respectively.
ISSUES
Issues that were raised in this case were:
1. Was section 7 of the Delhi Laws Act, 1912, or any of the provisions thereof and in what particular or particulars or to what extent ultra vires the Legislature which
passed the said Act?
2. Was the Ajmer Merwara (Extension of Laws) Act, 1947, or any of the provisions thereof and in what particular or particulars or to what extent ultra vires the
Legislature which passed the said Act?
3. Is section 2 of the Part C States (Laws) Act, 1950, or any of the provisions thereof and in what particular or particulars or to what extent ultra vires the
Parliament?
COURT’S OBSERVATIONS
The court’s observations were not unanimous. While some justices, including Fazl Ali, Patanjali Sastri, Mukherjea, Das, and Bose, held that the provisions of the Delhi
Laws Act, 1912, and the Ajmer-Merwara (Extension of Laws) Act, 1947, were wholly intra vires, others, including Kania CJ and Mahajan J., disagreed.
The justices also differed on the constitutionality of Section 2 of the Part C States (Laws) Act, 1950. Some justices held that the first portion of the section, which
empowered the Central Government to extend any enactment in force in a Part A State to any Part C State, was intra vires. However, they disagreed on the latter portion
of the section, which empowered the Central Government to repeal or amend any law applicable to that Part C State.
The justices provided detailed reasoning for their positions, discussing the nature of legislative power, the doctrine of separation of powers, the principle of non-
delegation of legislative powers, and the concept of conditional legislation.
 41

SECTION B
SECTION-B
Doctrine of Separation of Powers: Meaning and Historical Background
Doctrine of Separation of Powers in practice, Relevance in present times
Concept of Rule of Law: Meaning and its modern concept;
Rule of Law under the Indian Law, Relevance in contemporary times
Case Laws: Keshavananda Bharti v. State of Kerela,AIR1973SC1461
[Link],AIR1975SC2299

DOCTRINE OF SEPARATION OF POWERS: MEANING AND HISTORICAL BACKGROUND

INTRODUCTION:- The Doctrine of Separation of Powers is an important idea in how governments are organized. It says that the government should be divided into
three branches: the Legislature, the Executive, and the Judiciary. Each branch has its own job and powers, and this separation helps make sure no single branch becomes
too powerful.
• The Legislature makes the laws.
• The Executive carries out and enforces the laws.
• The Judiciary interprets the laws and ensures they are followed fairly.
This division of power keeps any one person or group from having too much control and helps prevent unfair or corrupt actions in the government. The idea was first
strongly introduced by the French philosopher Montesquieu in the 18th century, and it has since been adopted by many countries, including the United States, to help
protect people's rights and maintain fairness in government.
THREE MAIN THEORIES OF THIS CONCEPT
Aristotle :- Aristotle was the first person to write about separation of powers. In his book entitled Politics, he has described three agencies of government three agencies
of government – the General Assembly, the Public Officials, and the Judiciary.
John Locke :- The theory of three branches of government re-emerged with John Locke’s Two Treatise of Government (1689). He defined them as ‘legislative’,
‘executive’ and ‘federative’. He however did not consider them as co-equals. According to him, legislative branch is supreme than the other two. The other two namely
 42

the executive and federative functions were to be exercised by the monarch. His model corresponded with the dual form of government existing in England at that time –
The Parliament and the Monarchy.
Montesquieu’s theory of separation of powers :- Montesquieu was a French philosopher who is known for the theorization of the concept of separation of powers in his
book De L‘ Espirit des Lois (The Spirit of Laws), in 1748. Montesquieu laid sown his theory largely based on the English system. He explained the union of executive and
legislative power would lead to despotism of the executive.
Montesquieu divided the government into legislative, executive and judicial functions. He understood legislative power as an activity of declaring the general will of the
state. He apprehended the executive power as that of executing the public resolutions embodying the general will of State. Similarly, he understood judicial power as the
power of deciding civil and criminal cases. Out of all, Montesquieu considered judicial power to be frightening as it has the power to harm a subject’s life, liberty or
property.
Though, Montesquieu is credited for the theory of separation of powers, he is criticized by some that he completely misconstrued what he saw in England.
HISTORICAL BACKGROUND
The historical background of the Doctrine of Separation of Powers can be traced back to the ideas of political philosophers who were concerned about preventing the
abuse of power in government.
1. Ancient and Medieval Roots: The idea of dividing power in government can be found in ancient civilizations, but it wasn’t fully developed until much later. In early
history, many governments were controlled by monarchs or emperors who had almost complete power. Over time, however, people began to challenge this
concentration of power.
2. English Influence: The development of this idea gained momentum in England during the Magna Carta (1215), which limited the king’s power and established some
rights for the people. Later, events like the Glorious Revolution (1688) in England helped establish the idea that the monarch’s power should be shared with
Parliament. While England didn’t fully separate powers, it started the idea of limiting the power of one branch of government.
3. Baron de Montesquieu: The French philosopher Baron de Montesquieu is most famously credited with clearly explaining the Doctrine of Separation of Powers in
his work "The Spirit of the Laws" (1748). Montesquieu studied different governments and concluded that the best way to protect liberty and prevent tyranny was to
divide government into three branches: the Legislature (to make laws), the Executive (to carry out laws), and the Judiciary (to interpret laws). He believed that each
branch should be independent and that they should check and balance each other to avoid abuse of power.
 43

4. The United States: Montesquieu’s ideas greatly influenced the framers of the U.S. Constitution (1787). James Madison and other Founding Fathers used
Montesquieu’s principles when designing the structure of the U.S. government. They created a system of checks and balances, where each branch of government
could limit the powers of the others, ensuring no one branch would become too strong.
5. Modern Adoption: After the success of the U.S. Constitution, the idea of separating government powers spread to many other countries. Today, many democracies
use the Doctrine of Separation of Powers, though each country applies it differently based on its own system of government.
MEANING OF SEPARATION OF POWERS
The basic premise behind the doctrine of separation of powers is that when power gets concentrated in a single person or a group of persons, they can be dangerous to the
citizens. Hence, the principle of separation of powers aims at removing the concentrated power and preventing abuse. Generally, all the powers of the government can be
categorized into three classes:
• Enactment of making laws
• Interpretation of that enacted laws
• Enforcement of the enacted law
These are simply put as Legislative, Executive and Judicial powers of the government. The executive makes policy decisions and implement laws. Legislature issue
enactments and the judiciary adjudicate disputes. The doctrine of separation of powers implies independent functioning of each pillars of the democracy.
Hence, the principle of separation of powers deals with the mutual relations among the three organs of the government – legislature, executive, and judiciary. It states that
the three main categories of government functions – Legislative, Executive and Judicial and three powers in a democracy must be maintained separately and exercised by
separate organs of the government. It also tries to bring exclusiveness in the functioning of the three organs of the government and strict demarcation of power among
them. It simply implies that three organs of the government to be independent of the other and none should perform functions belonging to the other
PURPOSE OF SEPERATION OF POWERS
The purpose of the Separation of Powers is to ensure that no single branch of government becomes too powerful and to protect the rights and freedoms of individuals. By
dividing government power into three distinct branches—Legislature, Executive, and Judiciary—it aims to achieve several key goals:
1. Preventing Abuse of Power: By separating government powers, the doctrine prevents any one branch or person from gaining too much control. This helps reduce the
risk of tyranny or dictatorship, where a single ruler or group might misuse their power.
2. Ensuring Checks and Balances: Each branch has some level of power to check or limit the actions of the others. For example, the Executive can veto laws passed by
the Legislature, while the Judiciary can declare laws unconstitutional. This system helps maintain a balance of power and ensures that no branch can act without being
reviewed or challenged.
 44

3. Promoting Fairness: Separation of powers ensures that the government operates in a fair and transparent way. It prevents any one group from having the power to
make, enforce, and interpret laws, which could lead to unfair or biased decisions.
4. Protecting Individual Rights: The separation helps safeguard the rights of citizens by making sure that no branch can make arbitrary or oppressive decisions without
being checked by the others. It also helps to prevent any one branch from violating people's rights or freedoms.
5. Encouraging Accountability: When powers are divided, each branch is responsible for its own function. This encourages accountability, as each branch must answer
to the others and to the public. If one branch acts improperly, the others can step in to address the issue.
LANDMARK JUDGEMENTS
Ram Krishna Dalmia v. Justice Tendolkar
Observation of Justice Das when he said, “The Constitution does not express the existence of a separation of powers, and it is true that the division of powers of
government into legislative, executive and judicial powers is implicit in the Constitution, but the doctrine does not constitute a fundamental foundation stone of the
constitutional framework as such.
Chandra Mohan v. State of U.P
It was held that, although our Constitution does not accept the strict doctrine of the separation of powers, but provides for an independent judiciary in the State, it
constitutes a High Court for each State to lay down the institutional conditions for the service of its judges, confers extensive jurisdiction on it to issue writs to keep all
courts, including, where appropriate, the Government.
I.G. Golak Nath v State of Punjab
“The constitution brings into existence different constitutional entitles, namely the union, the state and the union territories. It creates three major instruments of powers,
namely the Legislature, the Executive and the Judiciary. It demarcates their jurisdiction minutely and expects them to exercise their respective powers without
overstepping there limits. They should function with the spheres allotted to them.”
The above opinion of the court clearly states the change in the courts view pertaining to the opinion in the case of Ram Jawaya v. state of Punjab related to the doctrine of
separation of powers.
 45

DOCTRINE OF SEPARATION OF POWERS IN PRACTICE, RELEVANCE IN PRESENT TIMES

DOCTRINE OF SEPARATION OF POWERS IN PRACTICE
The Doctrine of Separation of Powers is implemented differently in various countries, but the core idea remains the same: to divide governmental power into three distinct
branches—Legislature, Executive, and Judiciary—to prevent the concentration of power and to protect individual freedoms. Let's look at how this doctrine is applied in
practice:
IN THE UNITED STATES
The Doctrine of Separation of Powers is a cornerstone of the United States government system. It divides government responsibilities into three distinct branches: the
Legislature, the Executive, and the Judiciary. This division is explicitly outlined in the U.S. Constitution, designed to prevent any single branch from gaining too much
power and to create a system of checks and balances where each branch can limit the power of the others.
The Three Branches of Government
1. The Legislature (Congress):
o The Legislature in the U.S. is Congress, which consists of two houses: the Senate and the House of Representatives. Congress is responsible for making laws,
approving budgets, and declaring war, among other functions.
o Checks on the Executive: Congress has the power to override a presidential veto (with a two-thirds majority in both houses). Additionally, it holds the power to
impeach the president and other high-ranking officials.
2. The Executive (President):
o The Executive branch is headed by the President, who serves as the head of state, government, and commander-in-chief of the military. The President is responsible
for enforcing laws, conducting foreign policy, and overseeing the federal bureaucracy.
o Checks on the Legislature: The President can veto bills passed by Congress, preventing them from becoming law unless Congress overrides the veto. The President
also has the power to issue executive orders to manage federal operations.
o Checks on the Judiciary: The President appoints federal judges, including Supreme Court justices, subject to Senate confirmation. The President also has the power to
grant pardons or reprieves, which can affect judicial rulings.
3. The Judiciary (Federal Courts):
o The Judiciary is headed by the Supreme Court and includes lower federal courts. The role of the judiciary is to interpret laws, adjudicate disputes, and ensure that laws
are applied fairly.
o Checks on the Legislature: The judiciary has the power of judicial review, which allows it to strike down laws passed by Congress if they are found to be
unconstitutional (established by Marbury v. Madison, 1803).
 46

o Checks on the Executive: The judiciary can rule against executive actions if they are deemed unconstitutional. Courts can also hear cases involving presidential
actions, such as challenges to executive orders or the legality of military actions.
System of Checks and Balances
The System of Checks and Balances is a fundamental principle of the U.S. Constitution, designed to ensure that no single branch of government becomes too powerful. It
divides government power into three branches: the Legislative (Congress), Executive (President), and Judiciary (Courts), with each branch having the ability to limit or
"check" the powers of the others. For example, Congress can override a presidential veto, while the President can veto bills passed by Congress. The President also
appoints federal judges, but their appointments must be confirmed by the Senate. The Judiciary can declare laws or executive actions unconstitutional, ensuring that both
the Legislature and Executive stay within the bounds of the Constitution. This system promotes cooperation, accountability, and fairness, preventing any branch from
acting independently or abusing its power. It helps safeguard individual rights and maintains a balanced government, making sure no one branch becomes too dominant.
IN THE UK
The Doctrine of Separation of Powers in the UK operates differently from countries like the United States, as the UK does not have a written constitution. However, the
principle still exists in practice, ensuring that the powers of government are divided into three branches: Legislature, Executive, and Judiciary. While the UK’s system is
more flexible than in countries with a rigid separation, the doctrine remains crucial to maintaining a balance of power.
1. Legislature (Parliament): Parliament is the supreme legislative body, consisting of two houses: the House of Commons (elected representatives) and the House of
Lords (appointed and hereditary members). Parliament is responsible for making and passing laws. It holds the Executive to account by questioning government
policies and actions. It can also impeach ministers and influence the Executive through debates and votes.
2. Executive (Prime Minister and Cabinet): The Executive in the UK is led by the Prime Minister, who is the head of government, and the Cabinet, composed of
ministers who are usually drawn from Parliament. The Executive implements laws and runs the day-to-day functions of government. Unlike in some countries, the
Executive in the UK is closely connected to the Legislature, as the Prime Minister and most ministers are members of Parliament. The Executive is accountable to
Parliament and must maintain its confidence to stay in power.
3. Judiciary (Courts): The Judiciary in the UK is independent, ensuring that the laws passed by Parliament are interpreted and applied fairly. Courts can review actions
by the Executive to ensure they are legal, but they cannot strike down primary laws passed by Parliament (unlike in the U.S.). However, they can declare that
government actions are unlawful or inconsistent with human rights (as seen in cases under the Human Rights Act 1998).
The Doctrine of Separation of Powers refers to the division of government responsibilities into distinct branches to limit any one branch from exercising the core
functions of another. It aims to prevent the abuse of power by creating a system of checks and balances.
 47

IN INDIA
the Doctrine of Separation of Powers is a key feature of the country's constitutional framework, though it is not strictly followed as it is in some other countries, like the
United States. India's Constitution does not explicitly mention the separation of powers, but it does provide for a distribution of power among the three branches of
government: the Legislature, the Executive, and the Judiciary.
Here’s how the doctrine is put into practice in India:
1. Legislature
The Legislature in India consists of the Parliament, which is responsible for making laws, debating national issues, and controlling financial matters through the
enactment of budgets and taxes.
• Role: The Parliament, through its two houses (Lok Sabha and Rajya Sabha), debates and enacts laws, while the President’s assent is needed for these laws to come
into force.
• Separation: The executive (i.e., the government) is largely drawn from the legislature. This is a key difference from a stricter separation of powers model, like that in
the United States, where the executive is independent of the legislature.
2. Executive
The Executive in India is headed by the President but operates primarily through the Council of Ministers, led by the Prime Minister. The executive is responsible for the
administration and enforcement of laws and policies formulated by the legislature.
• Role: The executive ensures that laws passed by the legislature are implemented and manages the day-to-day governance of the country.
• Separation: The Constitution mandates that the executive should not interfere in legislative functions. However, the Prime Minister and most Cabinet ministers are
also members of the legislature, which blends executive and legislative roles.
3. Judiciary
The Judiciary in India is independent and plays a key role in interpreting the Constitution, laws, and ensuring that the executive and legislature do not exceed their
constitutional limits.
• Role: The judiciary has the power of judicial review, allowing it to invalidate laws or actions by the executive or legislature that violate the Constitution. It ensures the
rule of law and protects fundamental rights.
• Separation: While the judiciary is meant to be independent of both the legislature and the executive, it has some practical interactions with both. For example, it can
strike down laws made by the legislature if they are found to be unconstitutional.
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RELEVANCE IN PRESENT TIMES

1. Preventing Abuse of Power
In modern democracies, the central concern is the concentration of power in any one branch of government, which could lead to authoritarian rule or corruption. The
doctrine of separation of powers ensures that each branch operates independently and can check the others to prevent this.
• Example: The judiciary’s ability to review laws and executive actions ensures that neither the legislature nor the executive can infringe upon fundamental rights or
violate the Constitution. This is particularly crucial in a country like India, which has a diverse population and faces complex governance challenges.
• Relevance Today: There are concerns about increasing executive dominance in some instances, where the executive branch has been seen to influence legislative
processes, especially in areas like the passage of controversial laws or the imposition of emergency measures. The judiciary remains a critical check against any
potential misuse of power.
2. Judicial Review and Protection of Fundamental Rights
One of the most significant features of the separation of powers in India is the judicial review mechanism. The judiciary ensures that the laws passed by the legislature or
actions by the executive do not violate the Constitution or infringe on citizens’ fundamental rights.
• Example: In recent years, the Supreme Court of India has made landmark rulings, such as striking down unconstitutional amendments to laws or ordering the
government to ensure transparency and accountability (e.g., in the case of the Right to Privacy ruling in 2017, which reinforced individual freedoms).
• Relevance Today: In the context of rising concerns about freedom of speech, media freedom, and the protection of civil liberties, judicial review plays a vital role in
curbing any potential authoritarian overreach by the executive or legislature.
3. Role of the Legislature in Shaping Policies
The legislature’s role in formulating laws and policies that reflect the will of the people is a central part of the separation of powers. However, the overlap between the
legislature and executive in India — where the Prime Minister and Cabinet ministers are members of the legislature — creates a more flexible approach to separation of
powers.
• Example: In the Passage of the Farm Laws (2020), the government faced widespread protests, demonstrating the tension between executive actions and the legislative
process. The subsequent repeal of these laws under public pressure illustrates how the legislature and executive can interact in a way that impacts the balance of
power.
• Relevance Today: This flexibility has sparked debates about the independence of the legislature and its ability to act in the public's interest without undue executive
interference. Maintaining the balance between executive influence and legislative independence continues to be critical.
4. Executive Accountability and Governance
 49

The executive branch, while responsible for governance, often faces challenges regarding accountability and transparency. The Doctrine of Separation of Powers
ensures that executive actions remain subject to oversight, particularly through parliamentary procedures and judicial review.
• Example: The Right to Information (RTI) Act, which was passed by the legislature, empowers citizens to demand transparency from the executive, ensuring
government actions are not shielded from public scrutiny.
• Relevance Today: The executive’s power in areas such as national security, law enforcement, and policy decisions continues to be scrutinized. Calls for increased
accountability in governance, such as through anti-corruption measures or checks on police power, underscore the ongoing importance of maintaining a clear
separation of powers.
5. Judicial Independence and Oversight
The independence of the judiciary is a cornerstone of the separation of powers. It ensures that judges are not influenced by the executive or legislature when making
decisions, thus preserving fairness and impartiality.
• Example: The judiciary’s role in scrutinizing executive decisions, such as in the Central Vista Project or the handling of the COVID-19 pandemic, where it
intervened to protect public health and constitutional rights, demonstrates the judiciary's proactive role in maintaining balance.
• Relevance Today: With increasing allegations of judicial overreach or the lack of judicial independence in some cases, the doctrine of separation of powers remains a
point of tension in India. There is growing concern about whether the executive is undermining judicial independence, particularly through appointments and judicial
reforms.
6. New Challenges: Executive Overreach and Judicial Activism
While the doctrine of separation of powers is vital, India faces challenges in its implementation:
• Executive Overreach: There are times when the executive branch, under the leadership of the Prime Minister, has appeared to overshadow the other branches. The
use of ordinances by the executive, sometimes bypassing legislative scrutiny, or the abuse of emergency powers during political crises, may threaten the separation of
powers.
• Judicial Activism: The judiciary, especially the Supreme Court, has been criticized at times for taking on roles that some believe should belong to the legislature or
executive, particularly in areas of social or economic policy.
• Relevance Today: As India grows in complexity and size, there is an increasing need for clear demarcation and respect for the powers of each branch. Discussions
around judicial reforms, the autonomy of the election commission, and the increasing influence of the executive underscore the ongoing importance of maintaining a
proper balance.
7. Protection Against Majoritarianism
 50

In a diverse democracy like India, there is always the potential for majoritarian sentiment to dominate legislative and executive decisions, sidelining the rights of
minorities or marginalized groups. The judiciary, as an independent body, serves as a safeguard against any encroachment on the rights of these groups.
• Example: The Supreme Court’s ruling on Section 377, decriminalizing homosexuality, demonstrated the judiciary’s role in ensuring that the rights of a minority
community were protected against popular or majoritarian opposition.
• Relevance Today: In times of political polarization and growing populist tendencies, the doctrine of separation of powers ensures that power is not overly
concentrated in the hands of the majority, safeguarding the fundamental rights of all citizens.
 51

Concept of Rule of Law: Meaning and its modern concept;

Rule of Law under the Indian Law, Relevance in contemporary times
MEANING :- The Rule of Law means that everyone, including the government, must follow the law. No one is above the law, and everyone is treated equally by it. It
ensures that laws are clear, fair, and applied the same way to all people. It also protects people's basic rights and ensures that they have a fair chance to get justice through
the courts. In simple terms, the Rule of Law is the idea that society is run by laws, not by the power or decisions of individuals, and that everyone must follow the rules.
Examples:
1. Equality Before the Law: Imagine a rich businessman and a poor worker both get into trouble for breaking the same law. Under the Rule of Law, both should be
treated equally, and both should face the same legal consequences, regardless of their social or economic status.
2. Fair Trials: In a country with the Rule of Law, if someone is accused of a crime, they have the right to a fair trial where the law is applied properly. For example, if a
person is accused of theft, they have the right to be represented by a lawyer and to defend themselves in court.
3. No One is Above the Law: If a politician breaks the law, they should be held accountable just like any other citizen. For example, if a politician is caught accepting
bribes, they can be arrested, tried in court, and punished, just like any regular person.

4. Protection of Rights: If a person is unfairly treated or their rights are violated, like being arrested without a valid reason, the Rule of Law ensures they can challenge
this in court. For instance, in India, if someone’s property is taken away by the government without proper legal procedures, they can go to court to get justice.

DICEY’S CONCEPT OF RULE OF LAW

Professor A.V. Dicey is known to be the main exponent of the concept of the rule of law. In 1885, he propounded three principles of the rule of law in his classic
book ‘Law and the Constitution’. According to Professor A.V. Dicey, to achieve the supremacy of law the following three principles must be followed:
o Supremacy of the law
o Equality before the law
o Predominance of legal spirit: the court should be free from impartiality and external influence.
Supremacy of Law
▪ This is the first pillar of Dicey’s concept of rule of law.
▪ The Rule of Law rejects all kinds of arbitrary and discretionary powers of the government or public officials.
▪ It implies that a man may be punished for a breach of law, but he cannot be punished for anything else.
Equality Before Law
▪ The second important pillar of Dicey’s concept of Rule of Law is Equality before Law.
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▪ Dicey emphasizes the impartiality of law.

o It means that there shall be no distinction between the rich and the poor, officials and non-officials, majority and minority, no one can be degraded, and no one
can be upgraded.
o Law gives equal justice to all.
▪ He is of the view that there should be the same set of laws for all the people, and they should be adjudicated by the same courts.
Predominance of the Legal Spirit
▪ The third pillar of Dicey’s concept of Rule of Law is predominance of legal spirit.
▪ According to Dicey, for the prevalence of the rule of law there should be an enforcing authority and that authority he found in the courts.
o He believed that the courts are the enforcers of the rule of law and hence it should be free from impartiality and external influence.
▪ Independence of the judiciary is therefore an important pillar for the existence of the rule of law.

Criticism of Dicey’s Concept

▪ Dicey has ignored the importance of the codification of laws.
▪ Codification of laws is important to ensure the rights of an individual as it provides certainty, anything which is codified is certain and thus, could be followed more
effectively.
▪ He has misunderstood the concept of Droit administratif (the body of rules which regulate the relations of the administration or of the administrative authority towards
private citizens).

▪ According to him, the system was designed to protect the officials but in certain respects, it was specifically effective in controlling the administration than the
common law system.

MODERN CONCEPT OF RULE OF LAW IN ADMINISTRATIVE LAW

The rule of law is a powerful concept. It cannot be taken to mean that it is a fixed legal system from which it does not move. The concept of Legal Law discussed by the
International Commission of Jurists met in 1959 in New Delhi. The main results are:
• The law is “to protect and promote the political and social rights of the individual in a free society”.
• Establishing social, economic, educational and cultural conditions in which a person can achieve his or her rightful aspirations and dignity.
• It should not interfere with religious belief and should not interfere with freedom of speech or personal freedom.
• There is no discrimination against minority groups.
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• The security guards are not enough to abuse the power by the authorities.
• There should be independent courts with safe operation without interference from the law and management.
• The rule of law requires an independent legal profession.
Key Aspects of the Modern Concept of Rule of Law:
1. Equality and Non-Discrimination: Laws should apply equally to everyone, and there should be no discrimination based on things like race, gender, or wealth.
For example, in modern societies, both the rich and poor, regardless of their status, should face the same legal consequences if they break the law.
2. Access to Justice for All: In modern times, the Rule of Law means that everyone, including marginalized groups, should have access to legal help and justice.
This includes legal aid for those who cannot afford lawyers, as well as ensuring that courts are accessible to all people. For example, public interest litigation
(PIL) in India allows anyone to approach the courts to address public issues like pollution or corruption, even if they are not directly affected.
3. Protection of Human Rights: The modern Rule of Law also emphasizes the protection of fundamental human rights. Governments must ensure that laws do not
violate basic rights such as freedom of speech, the right to a fair trial, or protection from torture. For instance, international treaties like the Universal Declaration
of Human Rights ensure that countries uphold the rights of individuals within their borders.
4. Independent Judiciary: A modern Rule of Law system requires an independent judiciary. This means that judges and courts must be free from political
influence and can make decisions based purely on law and facts. This helps ensure that the law is applied fairly, without bias. For example, in many countries,
courts can overturn laws or government actions that violate the Constitution or human rights.
5. Accountability of the Government: In modern democracies, governments must act according to the law and be held accountable for any actions that break the
law. This includes regular checks on government power and transparency in decision-making. For instance, government officials must face legal consequences if
they are involved in corruption or abuse of power.

6. Transparency and Clarity of Laws: Laws in modern societies should be clear, transparent, and made public so that everyone knows what is legal and illegal.
This means that laws are regularly updated to keep up with changing times, and the process of making laws is open and transparent to the public.

RULE OF LAW UNDER THE INDIAN LAW

In India, the Rule of Law is a fundamental principle that underpins the democratic system and governance, ensuring that all individuals, institutions, and the government
itself are bound by law and must act in accordance with it. It is a key part of India’s Constitution and legal framework, which guarantees justice, equality, and fairness for
all its citizens.
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1. EQUALITY BEFORE THE LAW (ARTICLE 14 OF THE INDIAN CONSTITUTION)

ARTICLE 14 of the Indian Constitution ensures equality before the law and equal protection of the laws. This means that no person or entity, including the government,
is above the law. Whether an individual is a common citizen or a high-ranking official, everyone is subject to the same laws.
Example: If a government minister commits a crime, he or she must face the same legal consequences as any other citizen. The law applies equally, without
discrimination.
2. INDEPENDENCE OF THE JUDICIARY
The Indian judiciary plays a crucial role in upholding the Rule of Law. Judicial independence means that courts are free from external pressure or influence, whether from
the executive (government) or legislature (parliament).
The judiciary can review laws and government actions, ensuring they do not violate the Constitution or the Rule of Law.
Example: The Indian Supreme Court has the power to review government actions, declare laws unconstitutional, and protect citizens' rights. A notable example is the
landmark judgment in the Kesavananda Bharati case (1973), where the Court established the basic structure doctrine, ruling that certain fundamental principles of the
Constitution cannot be amended by Parliament.
4. RIGHT TO FAIR TRIAL AND JUSTICE (ARTICLE 21 AND 22 OF THE CONSTITUTION)
ARTICLE 21 of the Constitution guarantees the right to life and personal liberty, which includes the right to a fair and impartial trial.
ARTICLE 22 protects individuals from arbitrary arrest and detention and ensures that every person has the right to be informed of the reasons for their arrest and to
consult a legal practitioner.
The Rule of Law ensures that every citizen has the right to challenge any arbitrary or unlawful action taken by the government or any other authority.
Example: If someone is detained without reason or without being given a chance to defend themselves, they can challenge their detention in the courts.
4. JUDICIAL REVIEW
In India, judicial review refers to the power of the judiciary to examine the constitutionality of laws and government actions. This ensures that no law or executive order
violates the fundamental principles of the Constitution and the Rule of Law.
Courts can strike down laws or government decisions that are unconstitutional or violate citizens' rights.
Example: In the Maneka Gandhi v. Union of India case (1978), the Supreme Court expanded the scope of Article 21, ruling that the right to life and personal liberty
includes the right to be informed of the reasons for any restrictions on one's movement.
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5. PROTECTION OF FUNDAMENTAL RIGHTS (PART III OF THE CONSTITUTION)

Fundamental Rights in the Indian Constitution protect individuals against the arbitrary actions of the state and ensure that citizens can enjoy their basic freedoms, such as
the right to equality, freedom of speech, and protection from discrimination.
These rights guarantee justice, fairness, and equality for all citizens, ensuring that no law or government action violates these rights.
Example: The Right to Equality (Articles 14 to 18) ensures that no one is discriminated against on the basis of religion, caste, sex, or place of birth.
6. RULE OF LAW IN GOVERNANCE
The Indian government operates under the Rule of Law, where all executive actions must follow legal procedures and be backed by laws. No government authority can
act beyond the powers granted to it by law.
For example, government actions that violate legal procedures or exceed the power granted by the law can be challenged in court.
Example: If a government decision or action violates the law or infringes upon an individual’s rights, it can be challenged in the High Court or Supreme Court.
7. NO ONE IS ABOVE THE LAW
Under Indian law, no one is above the law, including government officials, politicians, or judges. Even the President or Prime Minister of India must act according to the
law.
Example: In Public Interest Litigation (PIL) cases, citizens or organizations can directly approach the courts to challenge government actions or raise issues affecting
public interest, such as corruption or environmental issues. This reinforces that no one can escape legal accountability.
8. ACCESS TO JUSTICE
The Rule of Law also ensures that justice is accessible to all citizens, including marginalized and economically weaker sections of society.
Public Interest Litigation (PIL) is a unique feature in India that allows individuals or groups to file petitions in the public interest, even if they are not personally affected
by the issue. This ensures access to justice for all, especially for those who may not have the financial resources to pursue legal action.
• Example: PIL has been used in India to address issues like environmental protection, public health, and human rights violations, ensuring that the law protects
everyone equally.
Exceptions to ‘Rule of Law’
▪ President and Governors are provided with some immunity through Articles 361, 361 (2), 361 (3) and 361 (4) of the Indian Constitution. Article 361 states that -
(1) The President, or the Governor or Rajpramukh of a State, shall not be answerable to any court for the exercise and performance of the powers and duties of his
office or for any act done or purporting to be done by him in the exercise and performance of those powers and duties:
(2) No criminal proceedings whatsoever shall be instituted or continued against the President, or the Governor of a State, in any court during his term of office
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(3) No process for the arrest or imprisonment of the President, or the Governor of a State, shall issue from any court during his term of office
(4) Any civil proceedings in which relief is claimed against the President, or the Governor of a State, shall be instituted during his term of office in any court in respect of
any act done or purporting to be done by him in his personal capacity, whether before or after he entered upon his office as President, or as Governor of such State, until
the expiration of two months next after notice in writing has been delivered to the President or Governor, as the case may be, or left at his office stating the nature of the
proceedings, the cause of action therefor, the name, description and place of residence of the party by whom such proceedings are to be instituted and the relief which he
claims.
▪ Immunity to Foreign Diplomats.
o The Vienna Convention on diplomatic relations of 1961 contains provisions in relation to different immunities and privileges which are granted to the
diplomatic envoys or agents.
▪ Immunity to Supreme Court and High Court Judges including Article 121 of the Indian Constitution which restricts the discussion on the conduct of such judges in
Parliament.

RELEVANCE IN CONTEMPORARY TIMES

The relevance of the Rule of Law in contemporary times refers to how essential this principle is in today's world, where society is constantly changing due to
technological advancements, globalization, social movements, and new challenges. The Rule of Law continues to play a crucial role in ensuring that societies remain fair,
just, and orderly.
Here’s why the Rule of Law is especially relevant today:
1. Ensuring Fairness in a Complex World
In contemporary societies, people from different backgrounds, economic statuses, and cultures coexist. The Rule of Law ensures that everyone, no matter their status, is
treated equally before the law. This principle becomes particularly important when addressing issues like discrimination, social inequality, and human rights.
Example: Anti-discrimination laws are crucial in modern times to protect marginalized groups, whether based on race, gender, or sexual orientation. Without the Rule of
Law, these protections might not be enforced.
2. Accountability in Governance
In an era where political corruption and abuse of power can happen more easily, the Rule of Law ensures that government actions are transparent, accountable, and
conducted within legal limits. This prevents the concentration of power in the hands of a few and helps protect democracy.
Example: Recent global events, like protests against corruption or unfair political systems, highlight the need for the Rule of Law to hold governments accountable. In
India, the Right to Information (RTI) allows citizens to demand transparency from government institutions.
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3. Protection of Digital Rights

With the rise of the internet and digital technologies, cybersecurity, privacy rights, and data protection have become major concerns. The Rule of Law ensures that
citizens' online activities are protected and that there are clear legal frameworks for addressing cybercrimes and digital harassment.
Example: Laws like the General Data Protection Regulation (GDPR) in the European Union regulate how companies handle personal data, ensuring individuals’ privacy
rights are respected in a highly interconnected world.
4. Global Cooperation and Justice
In the modern, interconnected world, challenges such as climate change, international trade disputes, and war crimes require global cooperation. The Rule of Law extends
beyond national borders to regulate actions at the international level, ensuring that countries adhere to common standards and principles.
Example: The International Criminal Court (ICC) is an institution that holds individuals accountable for crimes like genocide and war crimes, ensuring that the Rule of
Law applies globally and not just within individual nations.
5. Social Justice and Equality
Contemporary times have seen a surge in social movements advocating for justice and equality. The Rule of Law is fundamental in ensuring that laws are used to address
issues such as poverty, racial inequality, and gender-based violence, and that those affected have access to justice.
Example: Public Interest Litigation (PIL) in India allows people to approach the courts for matters of public concern, such as environmental protection, human rights, and
social justice, providing a platform to address widespread societal issues.
6. Managing Crisis Situations
In today's world, societies face frequent crises such as pandemics, natural disasters, and economic downturns. The Rule of Law ensures that emergency powers used
during such times are regulated, temporary, and do not violate citizens' rights.
Example: During the COVID-19 pandemic, governments imposed lockdowns and health protocols. The Rule of Law ensured these actions were legally justified,
temporary, and implemented in a way that protected people’s fundamental rights, like access to healthcare and livelihoods.
7. Maintaining Peace and Order
In contemporary times, countries face complex challenges related to crime, terrorism, and social unrest. The Rule of Law is essential to maintain peace and order,
ensuring that laws are followed to prevent violence and maintain public safety.
Example: Anti-terrorism laws are enforced under the Rule of Law to ensure that national security is upheld without infringing on individual freedoms and rights.
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KESHAVANANDA BHARTI V. STATE OF KERELA,AIR1973SC1461

The Kesavananda Bharati v. State of Kerala (1973) case is one of the most significant decisions in the history of Indian constitutional law. It was delivered by the
Supreme Court of India on April 24, 1973, and is widely regarded for establishing the Basic Structure Doctrine. This landmark judgment changed the way the Indian
Constitution could be amended and reaffirmed the principle that certain fundamental aspects of the Constitution cannot be altered by the legislature.
Here’s a breakdown of the case:

Facts of the Case

• Kesavananda Bharati, a religious leader (the petitioner), challenged the Kerala government's attempt to impose restrictions on the management of a religious
institution through laws that were passed by the state government. He argued that these laws violated his fundamental rights under the Indian Constitution,
particularly Article 26, which grants religious freedom to manage religious affairs.
• In addition to this, the case was also a response to the broader question about the amendment power of the Indian Parliament, particularly in the context of the
frequent amendments to the Constitution made by the government, which were seen as potentially infringing upon its fundamental principles.

Legal Issue
The main legal issue raised in this case was whether the Parliament had unlimited power to amend the Constitution, including the fundamental rights provided under Part
III, or whether there are certain basic features or structures of the Constitution that cannot be altered or amended by Parliament.

The Supreme Court's Judgment

The Supreme Court delivered a split verdict, with a majority of 7 judges supporting the view that Parliament's power to amend the Constitution is not absolute. The Court
introduced the Basic Structure Doctrine.
• The Basic Structure Doctrine holds that while Parliament has the power to amend the Constitution, it cannot alter or destroy its basic structure or essential features.
• The judgment specifically mentioned that fundamental rights could not be amended in such a way that they would be entirely removed, as they are considered part of
the basic structure.
This principle of the Basic Structure was laid down by Justice Bhagwati and Justice Sikri, who famously stated that while Parliament is empowered to amend the
Constitution under Article 368, it cannot alter or remove the fundamental features that define the nature of the Constitution itself.
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INDIRA GANDHI V. RAJ NARAIN,AIR1975SC2299

The Indira Gandhi v. Raj Narain case, decided by the Supreme Court of India in 1975, is one of the most important and landmark judgments in Indian constitutional
history. The case dealt with the validity of the election of Indira Gandhi, the Prime Minister of India, and raised questions regarding the scope of judicial review and the
interpretation of the Constitution, particularly with regard to the fundamental rights and free and fair elections.
Facts of the Case
• Raj Narain, a former Congress Party leader, contested the 1971 general election against Indira Gandhi from the Rae Bareli constituency.
• Raj Narain challenged the election of Indira Gandhi on grounds of corruption and electoral malpractices. Specifically, he argued that Indira Gandhi had used
government machinery and resources to influence the election.
• The Allahabad High Court found Indira Gandhi’s election to be invalid, citing her use of state machinery for electoral advantage, and declared that she was guilty of
corrupt practices under the Representation of the People Act, 1951.
• The Allahabad High Court further barred her from contesting elections for six years.
• Indira Gandhi appealed the decision to the Supreme Court of India.

Key Issues in the Case

1. Whether Indira Gandhi’s election was valid under the Representation of the People Act, 1951, particularly with reference to the allegations of electoral
malpractices.
2. **Whether the election petition was barred by the Constitution of India under the Article 329 (which restricts judicial interference in matters related to elections to
the Parliament and State Assemblies).
3. Interpretation of Fundamental Rights under Part III of the Constitution, specifically the right to freedom of speech and expression and the right to participate in
public life, and how they are balanced against allegations of corrupt electoral practices.

The Supreme Court’s Judgment

The Supreme Court, in its judgment, made some key observations and rulings:
1. Validity of Indira Gandhi’s Election:
o The Supreme Court, while setting aside part of the Allahabad High Court’s ruling, upheld the finding of corrupt practices against Indira Gandhi.
o The Court held that Indira Gandhi’s election was indeed affected by corrupt practices and thus violated the Representation of the People Act. It declared her election
void.
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o However, it allowed her to remain in office as the Prime Minister for a brief period (until the next election) but ruled that she could not contest elections for six years
due to the corrupt practices.
2. Immunity Under Article 329:
o The Supreme Court held that election petitions (challenging the validity of elections) could be subject to judicial scrutiny. While Article 329 of the Indian
Constitution restricts judicial review of electoral matters during elections, the Court made an important distinction: judicial review could take place after the election
process had been completed and the election petition was filed. This principle allows courts to examine issues of corruption and malpractices after the election,
ensuring the fairness and integrity of the electoral process.
3. Constitutional Interpretation:
o One of the critical aspects of the case was the interpretation of fundamental rights under the Constitution. The Court emphasized that fundamental rights cannot be
absolutely curtailed by the state or any other body, especially when the elections affect the democratic process and citizens' ability to choose their representatives.