Reading Material

On
Administrative Law

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 CONTENTS

I. Administrative Law-An Overview:

Issues and prospects

*Introduction Concept, Definition scope and recent

*trends in Administrative Law
*Role of the Constitution and administrative Law,
*Constitutional Provisions like Separation of Power
*Rule of Law and
*Droit Administrative.

II. Classification of Administrative Power

*Rules Making Power

*Adjudicatory Power
*Administrative Powers

III. Delegated Legislation and its Control

*Delegated legislation, factors leading to delegated legislation
*Restraints on delegation of legislative power
*Control over delegated legislation.
 Administrative Law : Conceptual Analysis
Issues and Prospects

Introductory
Administrative law has become very necessary in the developed society, the
relationship of the administrative authorities and the people have become
very complex. In order to regulate these complex, relations, some law is
necessary, which may bring about regularity certainty and may check at the
same time the misuse of powers vested in the administration. With the
growth of the society, its complexity increased and thereby presenting new
challenges to the administration we can have the appraisal of the same only
when we make a comparative study of the duties of the administration in the
ancient times with that of the modern times. In the ancient society the
functions of the state were very few the prominent among them being
protection from foreign invasion, levying of Taxes and maintenance of
internal peace & order. It does not mean, however that there was no
th
administrative law before 20 century. In fact administration itself is
concomitant of organized Administration. In India itself, administrative law can
be traced to the well-organized administration under the Mauryas and
Guptas, several centuries before the Christ, following through the
administrative, system of Mughals to the administration under the East India
Company, the precursor of the modern administrative system. But in the
modern society, the functions of the state are manifold, In fact, the modern
state is regarded as the custodian of social welfare and consequently, there is
not a single field of activity which is free from direct or indirect interference by
the state. Along with duties, and powers the state has to shoulder new
responsibilities. The growth in the range of responsibilities of the state thus
ushered in an administrative age and an era of Administrative law.
The development of Administrative law is an inevitable necessity of the
modern times; a study of administrative law acquaints us with those rules
according to which the administration is to be carried on. Administrative Law

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has been characterized as the most outstanding legal development of the
20th-century.

Administrative Law is that branch of the law, which is concerned, with the
composition of powers, duties, rights and liabilities of the various organs of the
Government. The rapid growth of administrative Law in modern times is the
direct result of the growth of administrative powers. The ruling gospel of the
19th century was Laissez faire which manifested itself in the theories of
individualism, individual enterprise and self help. The philosophy envisages
minimum government control, maximum free enterprise and contractual
freedom. The state was characterized as the law and order state and its role
was conceived to be negative as its internal extended primarily to defending
the country from external aggression, maintaining law and order within the
country dispensing justice to its subjects and collecting a few taxes to finance
these activities. It was era of free enterprise. The management of social and
economic life was not regarded as government responsibility. But laissez faire
doctrine resulted in human misery. It came to be realized that the bargaining
position of every person was not equal and uncontrolled contractual freedom
led to the exploitation of weaker sections by the stronger e.g. of the labour by
the management in industries. On the one hand, slums, unhealthy and
dangerous conditions of work, child labour wide spread poverty and
exploitation of masses, but on the other hand, concentration of wealth in a few
hands, became the order of the day. It came to be recognized that the state
should take active interest in ameliorating the conditions of poor. This
approach gave rise to the favoured state intervention in and social control and
regulation of individual enterprise. The state started to act in the interests of
social justice; it assumed a “positive” role. In course of time, out of dogma of
collectivism emerged the concept of “Social Welfare State” which lays
emphasis on the role of state as a vehicle of socio-economic regeneration and
welfare of the people.

Thus the growth of administrative law is to be attributed to a change of

philosophy as to the role and function of state. The shifting of gears from
laissez faire state to social welfare state has resulted in change of role of
the state. This trend may be illustrated very forcefully by reference to the
position in India. Before 1947, India was a police state. The ruling foreign
power was primarily interested in strengthening its own domination; the
administrative machinery was used mainly with the object in view and the civil
service came to be designated as the “steel frame”. The state did not concern
itself much with the welfare of the people. But all this changed with the advent
of independence with the philosophy in the Indian constitution the preamble to
the constitution enunciates the great objectives and the socio-economic goals
for the achievement of which the Indian constitution has been conceived and
th
drafted in the mid-20 century an era when the concept of social welfare state
was predominant. It is thus pervaded with the modern outlook regarding the
objectives and functions of the state. it embodies a distinct philosophy which
regards the state as on organ to secure good and welfare of the people this
concept of state is further strengthened by the

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Directive Principles of state policy which set out the economic, social and
political goals of Indian constitutional system. These directives confer certain
non-justiceable rights on the people, and place the government under an
obligation to achieve and maximize social welfare and basic social values of
life education, employment, health etc. In consonance with the modern beliefs
of man, the Indian constitution sets up machinery to achieve the goal of
economic democracy along with political democracy, for the latter would be
meaningless without former. Therefore, the attainment of socio-economic
justice being a conscious goal of state policy, there is a vast and inevitable
increase in the frequency with which ordinary citizens come into relationship
of direct encounter with state power-holder. The Administrative law is an
important weapon for bringing about harmony between power and justice. The
basic law of the land i.e. the constitution governs the administrators.

Administrative law essentially deals with location of power and the limitations
thereupon. Since both of these aspects are governed by the constitution, we
shall survey the provisions of the constitution, which act as sources of
limitations upon the power of the state. This brief outline of the Indian
constitution will serve the purpose of providing a proper perspective for the
study of administrative law.

India’s Constitution is a very lengthy, elaborate and detailed document. It

consists of 395 Articles arranged under 22 parts and 9 schedules. It is
probably the longest of the organic law now extant in the world. Several
reasons have contributed to the prolixity of the Indian Constitution.

Firstly, the Constitution deals with the organization and structure not only of
the central Government but also of the states.

Secondly, in a federal constitution, Center-State relationship is a matter of

crucial importance. While other federal constitutions have only skeletal
provisions on this matter the Indian Constitution has detailed norms.

Thirdly, the Constitution has reduced to writing many unwritten conventions

of the British Constitution as for example, the principle of collective
responsibility of the Ministers, parliamentary procedure etc.

Fourthly, there exist various communities and groups in India. To remove

mutual distrust among them, it was felt necessary to include in the
Constitution detailed provisions on Fundamental Rights, safeguards to
minorities, Scheduled tribes scheduled castes and backward classes.

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Fifthly, to promote the social welfare concept on which the state of India is to
be based. The constitution includes Directive Principles of State Policy.

Lastly, the Constitution contains not only the fundamental principles of

governance but also many administrative details, such as the provisions
regarding citizenship, official languages, government services, electoral
machinery etc. In other constitutions, these are usually left to be regulated by
the ordinary law of the land. The framers of the Indian Constitution however
felt that unless these provisions were contained in the Constitution, an infant
democracy might find itself in difficulties, and the smooth and efficient working
of the Constitution and the democratic process in the country might be
jeopardized. The form of administration has a close relation with the form of
the Constitution and the former must be appropriate to the latter. It is quite
possible to pervert the constitutional mechanism, without changing its form, by
merely changing the form of the administration and making it inconsistent
with, and opposed to, the spirit of the constitution. Since India was emerging
as an independent country after a long spell of foreign rule, the country lacked
democratic values. The constitution-makers therefore thought it prudent not to
take unnecessary risks, and to incorporate in the constitution itself the from of
administration as well, instead of leaving it to the legislature, so that the whole
mechanism may become viable.

The preamble to the Constitution declares India to be a Sovereign Democratic

Republic. The term ‘Sovereign’ denotes that India is subject to no external
authority. The term ‘democratic’ signifies that India has a parliamentary from
of government, which means a government responsible to an elected
legislature.

The preamble to the Constitution enunciates the great objectives and the
socio-economic goals for the achievement of which the Indian Constitution
has been established. These are: to secure to all citizens of India social,
economic and political justice; to secure to all Indian citizens liberty of thought,
expression, belief, faith and worship; to secure to them equality of status and
opportunity, and to promote among them fraternity so as to secure the dignity
of the Individual and the unity of the nation. The Indian Constitution has been
conceived and drafted in the mid-twentieth century-an era when the concept
of social welfare state is predominant. It is thus pervaded with the modern
outlook regarding the objectives and functions of the state. It embodies a
distinct philosophy of government, and, explicitly declares that India will be
organized as a social welfare state, i.e., a state that renders social services to
the people and promotes their general welfare. In the formulations and
decelerations of the social objectives contained in the preamble, one can

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clearly discern the impact of the modern political philosophy, which regards
the state as an organ to secure the good and welfare of the people. This
concept of a welfare state is further strengthened by the Directive Principles of
State Policy, which set out the economic, social and political goals of the
Indian constitutional system. These directives confer certain non-justiciable
rights on the people, and place the governments under an obligation to
achieve and maximize social welfare and basic social values like education,
employment, health etc. In consonance with the modern beliefs of man, the
Indian Constitution sets up a machinery to achieve the goal of economic
democracy along with political democracy, for the latter would be meaningless
without the former in a poor country like India.

India is a country of religions. There exist multifarious religious groups in the

country but, in spite of this, the Constitution stands for a secular state of
India.. The essential basis of the Indian Constitution is that all citizens are
equal, and that the religion of a citizen is entirely irrelevant in the matter of his
fundamental rights. The Constitution answers equal freedom for all religions
and provide that the religion of the citizen has nothing to do in socio-economic
matters.

The Indian Constitution has a chapter on Fundamental Rights and thus

guarantees to the people certain basic rights and freedoms, such as, inter
alia, equal protection of laws, freedom of speech and expression freedom of
worship and religion. Freedom of assembly and association, freedom to move
freely and to reside and settle an where in India, freedom to follow any
occupation, trade or business, freedom of person, freedom against double
jeopardy and against export facto laws. Untouchables, the age-old scourge
afflicting the Hindu society, have been formally abolished. The people can
claim their Fundamental Rights against the state subject to some restrictions,
which the state can impose in the interests of social control. These restrictions
on Fundamental Rights are expressly mentioned in the Constitution itself and,
therefore, these rights can be qualified or a bridged only to the extent laid
down. These rights, in substance, constitute inhibitions on the legislative and
executive organs of the state. No law or executive action infringing a
Fundamental Right can be regarded as valid. In this way, the Constitution
demarcates an area of individual freedom and liberty wherein government
cannot interfere. The judiciary ensures an effective and speedy enforcement
of these rights. Since the inauguration of the Constitution, many significant
legal battles have been fought in the area of Fundamental Rights and, thus, a
mass of interesting case law has come into being in this area.

The Indian society lacks homogeneity, as there exist differences of religion,

language, culture, etc. There are sections of people who are comparatively
weaker than others-economically, socially and culturally and their lot can be
ameliorated only when the state makes a special effort to that end. Mutual
suspicion and distrust exist between various religious and linguistic groups.
To promote a sense of security among the minorities, to ameliorate the
conditions of the depressed and backward classes, to make them useful
members of society, to weld the diverse elements into one national and

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political stream, the Constitution contains a liberal scheme of safeguards to
minorities, backward classes and scheduled castes. Provisions have thus
been made, inter alia, to reserve seats in the State Legislatures and Lok
Sabha and to make reservations services, for some of these groups, to
promote the welfare of the depressed and backward classes and to protect
the languages and culture of the minorities.

India has adopted adult suffrage as a basis of elections to the Lok Sabha and
the State Legislative Assemblies. Every citizen, male or female, who has
reached the age of 18 years or over, has a right to vote without any
discrimination. It was indeed a very bold step on the part of the constitution-
makers to adopt adult suffrage in a country of teeming millions of illiterate
people, but they did so for some very sound reasons. If democracy is to be
broad-based and the system of government is to have the ultimate sanction of
the people as a whole, in a country like India where large masses of people
are poor an illiterate, the introduction of any property or educational
qualification for exercising the franchise would have amounted to a negation
of democratic principles. Any such qualification would have disenfranchised a
large number of depressed people. Further, it cannot be assumed that a
person with a bare elementary education is in a better position to exercise the
franchise are and choose his representatives accordingly.

A notable feature of the Constitution is that it accords a dignified and crucial

position to the judiciary. Well-ordered and well-regulated judicial machinery
had been introduced in the country with the Supreme Court at the apex. The
jurisdiction of the Supreme Court is very broadly worded. It is a general court
of appeal from the High Court, is the ultimate arbiter in all-constitutional
matters and enjoys an advisory jurisdiction. It can hear appears from any
court or tribunal in the country and can issue writ for enforcing the
Fundamental Rights. There is thus a good deal of truth in the assertion that
the highest court in any other federation. There is a High Court in each State.
The High Courts have wide jurisdiction and have been constituted into
important instruments of justice. The most signification aspect of their
jurisdiction is the power to issue writs.

The judiciary in India has been assigned role to play. It has to dispense justice
not only between one person and another, but also between the state and the
citizens. It interprets the constitution and acts as its protector and guardian by
keeping all authorities legislative, executive, administrative, judicial and quasi-
judicial-within bounds. The judiciary is entitled to scrutinize any governmental
action in order to assess whether or to it conforms to the constitution and the
valid laws made there under. The judiciary has powers to protect people’s
Fundamental Rights from any unreasonable encroachment by any organ of
the state. The judiciary supervises the administrative process in the country,
and acts as the balance wheel of federalism by settling disputes between the
center and the states or among the state inter se.

India’s Constitution is of the federal type. It established a dual polity, a two tier

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governmental system with the Central Government at one level and the state
Governments at the other. The Constitution marks off the sphere of action of
each level of government by devising an elaborate scheme of distribution of
legislative, administrative, and financial powers between the Centre and the
States. A government is entitled to act within its assigned field and cannot go
out of it, or encroach on the field assigned to the other government.

Thus the Constitution of India is having significant effect on laws including

administrative law. It is under this fundamental laws are made and executed,
all governmental authorities and the validity of their functioning adjudged. No
legislature can make a law and no governmental agency can act, contrary to
the constitution no act, executive, legislative, judicial or quasi-judicial, of any
administrative agency can stand if contrary to the constitution. The
constitution thus conditions the whole government process in the country.
The judiciary is obligated to see any governmental organ does not violate the
provisions of the constitution. This function of the judiciary entitles it to be
called as guardian of the constitution.

Today in India, the Administrative process has grown so much that it will not
be out of place to say that today we are not governed but administered. It
may be pointed out that the constitutional law deals with fundamentals while
administrative with details. The learned author, Sh. I.P. Messey, has rightly
pointed out, whatever may be the arguments and counter arguments, the fact
remains that the administrative law is recognized as separate, independent
branch of legal discipline,. Though at times the disciplines of constitutional
law and administrative law may over lap. Further clarifying the point he said
the correct position seems to be that if one draws two circles of administrative
law and constitutional law at a certain place they may over lap and this area
may termed as watershed in administrative law.

Need for the Administrative Law:

Its Importance And Functions

The emergence of the social welfare has affected the democracies very
profoundly. It has led to state activism. There has occurred a phenomenal
increase in the area of sate operation; it has taken over a number of
functions, which were previously left to private enterprise. The state today

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pervades every aspect of human life. The functions of a modern state may
broadly be placed into five categories, viz, the state as:-

 protector,

 provider,

 entrepreneur,

 economic controller and

 arbiter.

Administration is the all-pervading feature of life today.

The province of administration is wide and embrace following things within its
ambit:-

 It makes policies,

 It provides leadership to the legislature,

 It executes and administers the law and

 It takes manifold decisions.

 It exercises today not only the traditional functions of
administration, but other varied types of functions as well.
 It exercises legislative power and issues a plethora of rules,
bye- laws and orders of a general nature.

The advantage of the administrative process is that it could evolve new

techniques, processes and instrumentalities, acquire expertise and
specialization, to meet and handle new complex problems of modern society.
Administration has become a highly complicated job needing a good deal of
technical knowledge, expertise and know-how. Continuous experimentation
and adjustment of detail has become an essential requisite of modern
administration. If a certain rule is found to be unsuitable in practice, a new
rule incorporating the lessons learned from experience has to be supplied.
The Administration can change an unsuitable rule without much delay. Even if
it is dealing with a problem case by case (as does a court), it could change its
approach according to the exigency of the situation and the demands of
justice. Such a flexibility of approach is not possible in the case of the
legislative or the judicial process. Administration has assumed such an
extensive, sprawling and varied character, that it is not now easy to define the
term “ administration” or to evolve a general norm to identify an administrative
body. It does not suffice to say that an administrative body is one, which
administers, for the administration does not only put the law into effect, but
does much more; it legislates and adjudicates. At times, administration is
explained in a negative manner by saying that what does not fall within the
purview of the legislature or the judiciary is administration.

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In such a context, a study of administrative law becomes of great significance.
The increase in administrative functions has created a vast new complex of
relations between the administration and the citizen. The modern
administration impinges more and more on the individual; it has assumed a
tremendous capacity to affect the rights and liberties of the people. There is
not a moment of a person’s existence when he is not in contact with the
administration in one-way or the other. This circumstance has posed certain
basic and critical questions for us to consider:

 Does arming the administration with more and more powers

keep in view the interests of the individual?
 Are adequate precautions being taken to ensure that the
administrative agencies follow in discharging their functions
such procedures as are reasonable, consistent with the rule of
 law, democratic values and natural justice?
 Has adequate control mechanism been developed so as to
ensure that the administrative powers are kept within the
bounds of law, and that it would not act as a power drunk
creature, but would act only after informing its own mind,
weighing carefully the various issues involved and balancing the
individual’s interest against the needs of social control?

It has increasingly become important to control the administration, consistent

with the efficiency, in such a way that it does not interfere with impunity with
the rights of the individual. Between individual liberty and government, there
is an age-old conflict the need for constantly adjusting the relationship
between the government and the governed so that a proper balance may be
evolved between private interest and public interest. it is the demand of
prudence that when sweeping powers are conferred on administrative organs,
effective control- mechanism be also evolved so as ensure that the officers do
not use their powers in an undue manner or for an unwarranted purpose. It is
the task of administrative law to ensure that the governmental functions are
exercised according to law, on proper legal principles and according to rules
of reason and justice fairness to the individual concerned is also a value to be
achieved along with efficient administration

The goal of administrative law is to redress this inequality to ensure

that, so far as possible, the individual and the state are placed on a
plane of equality before the bar of justice. In reality there is no
antithesis between a strong government and controlling the exercise
of administrative powers. Administrative powers are exercised by
thousands of officials and affect millions of people Administrative
efficiency cannot be the end-all of administrative powers. There is
also the questions of protecting individual’s rights against bad
administration will lead to good administration.

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 A democracy will be no better than a mere façade if the rights of the people
are infringed with impunity without proper redressed mechanism. This
makes the study of administrative law important in every country. For India,
however, it is of special significance because of the proclaimed objectives of
the Indian polity to build up a socialistic pattern of society. This has
generated administrative process, and hence administrative law, on a large
scale. Administration in India is bound to multiply further and at a quick
pace. If exercised properly, the vast powers of the administration may lead
to the welfare state; but, if abused, they may lead to administrative
despotism and a totalitarian state A careful and systematic study and
development of administrative law becomes a desideratum as administrative
law is an instrument of control of the exercise of administrative powers.

Nature and Definition of administrative Law

Administrative Law is, in fact, the body of those which rules regulate and
control the administration. Administrative Law is that branch of law that is
concerned with the composition of power, duties, rights and liabilities of the
various organs of the Government that are engaged in public administration.
Under it, we study all those rules laws and procedures that are helpful in
properly regulating and controlling the administrative machinery.

There is a great divergence of opinion regarding the definition/conception of

administrative law. The reason being that there has been tremendous
increase in administrative process and it is impossible to attempt any precise
definition of administrative law, which can cover the entire range of
administrative process.

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Let us consider some of the definitions as given by the learned jurists.

Austin has defined administrative Law. As the law, which determines the
ends and modes to which the sovereign power shall be exercised. In his view,
the sovereign power shall be exercised either directly by the monarch or
directly by the subordinate political superiors to whom portions of those are
delegated or committed in trust.

Holland regards Administrative Law “one of six” divisions of public law. In his
famous book “Introduction to American Administrative Law 1958”,

Bernard Schawartz has defined Administrative Law as “the law applicable to

those administrative agencies which possess of delegated legislation and ad
judicatory authority.”

Jennings has defined Administrative Law as “the law relating to the

administration. It determines the organization, powers and duties of
administrative authorities.”
th
Dicey in 19 century defines it as.

Firstly, portion of a nation’s legal system which determines the legal statues
and liabilities of all State officials.
Secondly, defines the right and liabilities of private individuals in their
dealings with public officials.
Thirdly, specifies the procedure by which those rights and liabilities are
enforced.

This definition suffers from certain imperfections. It does not cover several
aspects of administrative law, e.g. it excludes the study of several
administrative authorities such as public corporations which are not included
within the expression “State officials,” it excludes the study of various powers
and functions of administrative authorities and their control. His definition is
mainly concerned with one aspect of administrative. Law, namely, judicial
control of public officials.

A famous jurist Hobbes has written that there was a time when the society
was in such a position that man did not feel secured in it. The main reason for
this was that there were no such things as administrative powers. Each
person had to live in society on the basis of his own might accordingly to
Hobbes, “ In such condition, there was no place for industry, arts, letters and
society. Worst of all was the continual fear of danger, violent death and life of
man solitary poor, nasty and brutish and short.

The jurists are also of the view that might or force as a means for the
enforcement of any decision by man could continue only for some time. To
put it is other words, the situation of “might is right” was only temporary. It

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may be said to be a phase of development. This can be possible only through
the medium of law. Hence, law was made and in order to interpret it and in
order to determine the rights and duties on the basis of such interpretation,
this work was entrusted to a special organ that we now call judiciary. The
organ, which was given the function of enforcing the decision of judicial
organ, is called executive. It has comparatively a very little concern with the
composition of the executive organ.

K.C. Davis has defined administrative law in the following words:

“ Administrative Law is the law concerning the powers and procedures of
administrative agencies including specially the law governing judicial review
of administrative action.”
In the view of Friedman, Administrative Law includes the following.
 The legislative powers of the administration both at common
law and under a vast mass of statutes.
 The administrative powers of the administration.

 Judicial and quasi-judicial powers of the administration, all of
them statutory.
 The legal liability of public authorities.

 The powers of the ordinary courts to supervise the
administrative authorities.

The Indian Institution of Law has defined Administrative Law in the

following words;
“ Administrative Law deals with the structure, powers and functions of organs
of administration, the method and procedures followed by them in exercising
their powers and functions, the method by which they are controlled and the
remedies which are available to a person against them when his rights are
infringed by their operation.”

A careful perusal of the above makes it clear that Administrative Law

deals with the following problems:

A. Who are administrative authorities?

B. What is the nature and powers exercised by administrative
authorities?
C. What are the limitations, if any, imposed on these powers?
D. How the administration is kept restricted to its laminose?
E. What is the procedure followed by the administrative
authorities?

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 F. What remedies are available to persons adversely affected
by administration?

Thus the concept of administrative law has assumed great importance and
remarkable advances in recent times. There are several principles of
administrative law, which have been evolved by the courts for the purpose of
controlling the exercise of power. So that it does not lead to arbitrariness or
despotic use of power by the instrumentalities or agencies of the state. During
recent past judicial activism has become very aggressive. It was born out of
desire on the part of judiciary to usher in rule of law society by enforcing the
norms of good governance and thereby produced a rich wealth of legal norms
and added a new dimension to the discipline administrative law.

In view of above discussion we can derive at the following conclusions so far

as nature and scope of administrative law is concerned: -

The administrative law has growing importance and interest and

the administrative law is the most outstanding phenomena in the
welfare state of today. Knowledge of administrative law is as
important for the officials responsible for carrying on
administration as for the students of law.

Administrative law is not codified like the Indian Penal code or the
law of Contracts. It is based on the constitution. No doubt the
Court of Law oversees and ensure that the law of the land is
enforced. However, the “very factor of a rapid development and
complexity which gave rise to regulation made specific and
complete treatment by legislation impossible and, instead, made
necessary the choice of the body of officers who could keep abreast
of the novelties and intricacies which the problems presented.”

Administrative law is essentially Judge made law. It is a branch of

public law as compared to private law-relations inter-se.
Administrative law is an ever-expanding subject in developing
society and is bound to grow in size as well as quality in coming the
decades. We need an efficient regulatory system, which ensures
adequate protection of the people’s Rights.

Principles of administrative law emerge and development

whenever any person becomes victim of arbitrary exercise of

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 public power. Therefore administrative law deals with relationship
individual with power.

The administrative agencies derive their authority from

constitutional law and statutory law. The laws made by such
agencies in exercise of the powers conferred on them also regulate
their action. The principle features are: (a) transfer of power by
legislature to administrative authorities, (b) exercise of power by
such agencies, and (c) judicial review of administrative decisions.

Administrative law relates to individual rights as well as public

needs and ensures transparent, open and honest governance,
which is more people-friendly.

Inadequacy of the traditional Court to respond to new challenges

has led to the growth of administrative adjudicatory process. The
traditional administration of justice is technical, expensive and
dilatory and is not keeping pace with the dynamics of ever-
increasing subject matter. Because of limitation of time, the
technical nature of legislation, the need for flexibility,
experimentations and quick action resulted in the inevitable
growth of administrative legislative process.

Administrative law deals with the organization and powers of

administrative and powers quasi-administrative agencies

Administrative law primarily concerns with official action and the

procedure by which the official action is reached.

Administrative law includes the control mechanism (judicial

review) by which administrative authorities are kept within
bounds and made effective.

Sources of Administrative Law

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There are four principal sources of administrative law in India:-

 Constitution of India

 Acts and Statutes

  Ordinances, Administrative directions, notifications and Circulars
 Judicial decisions

Future Role of Administrative Law

The administrative law has come to stay because it provides an instrument of

control of the exercise of administrative powers. The administrative law has to
seek balance between the individual right and public needs. As we know in
the society there exists conflict between power and justice wherever there is
power, there exist probabilities of excesses in exercise of the power. One way
is to do nothing about this and let the celebrated Kautilyan Matsanayaya (big
fish eating little fish) prevail. The other way is to try and combat this.
Administrative law identifies the excesses of power and endeavors to combat
there. The learned Author, Upender Baxi, while commenting on the
administrative law has rightly observed in. (The Myth and reality of the Indian
administrative law, Introduction by Upendra Baxi in administrative law ed. by I.P. Massey
2001 at XVIII)

“to understand the stuff of which administrative law is made one has to
understand relevant domains of substantive law to which courts apply the
more general principles of legality and fairness. In this way a thorough study
of administrative law is in effect, a study of the Indian legal system a whole.
More importantly, it is study of the pathology of power in a developing
society.”

Growth in science and technology and modernization has resulted in great

structural changes accompanied with increase in the aspirations of people as
to quality of life. We know socio-eco-politico and multi dimensional problems
which people face due to technological development cannot solved except by
the growth of administration and the law regulating administration. No doubt
the principles evolved by the court for the purpose of controlling the misuse of
governmental of power is satisfactory. Yet it is said that the administrative law
in India is an instrument in the hands of middle class Indians to combat
administrative authoritarianism through the instrumentality of the court and
there is need to make administrative law a shield for the majority of Indians
living in rural area and people under poverty line. Therefore easy access to
justice is considered important form of accountability this may include
informal procedure, speedy and less expensive trial, legal aid, public interest
litigation, easy bail etc.

Module – 1 18
Further, the multifarious activities of the state extended to every social
problems of man such as health education employment, old age pension
production, control and distribution of commodities and other operations
public utilities. This enjoins a new role for administration and also for the
development of administrative law.

Separation of Powers

The doctrine of Separation of Powers is of ancient origin. The origin of the

th th
doctrine is traceable to Aristotle. In the 16 and 17 Centuries, French
philosopher John Boding and British Politician Locke respectively had
expounded the doctrine of separation of powers. But it was Montesquieu,
French jurist, who for the first time gave it a systematic and scientific
formulation in his book ‘Esprit des Lois’ (The spirit of the laws).

Montesquieu’s view: Montesquieu said that if the Executive and the

Legislature are the same person or body of persons, there would be a danger
of the Legislature enacting oppressive laws which the executive will
administer to attain its own ends, for laws to be enforced by the same body
that enacts them result in arbitrary rule and makes the judge a legislator rather
than an interpreter of law. If one person or body of persons could exercise
both the executive and judicial powers in the same matter, there would be
arbitrary powers, which would amount to complete tyranny, if the legislative
power would be added to the power of that person. The value of the doctrine
lies in the fact that it seeks to preserve human liberty by avoiding the
concentration of powers in one person or body of persons. The different
organs of government should thus be prevented from encroaching on the
province of the other organ.

This theory has had different application in France, USA and England. In
France, it resulted in the rejection of the power of the courts to review acts of
the legislature or the executive. The existence of separate administrative

Module – 1 19
courts to adjudicate disputes between the citizen and the administration owes
its origin to the theory of separating of powers. The principle was categorically
adopted in the making of the Constitution of the United States of America.
There, the executive power is vested in the president. Article the legislative
power in congress and the judicial power in the Supreme Court and the courts
subordinates thereto. The President is not a member of the Congress. He
appoints his secretaries on the basis not of their party loyalty but loyalty to
himself. His tenure does not depend upon the confidence of the Congress in
him. He cannot be removed except by impeachment, However, the United
States constitution makes departure from the theory of strict separation of
powers in this that there is provision for judicial review and the supremacy of
the ordinary courts over the administrative courts or tribunals.

In the British Constitution the Parliament is the Supreme legislative

authority. At the same time, it has full control over the Executive. The
harmony between the Legislator and the (Executive) is secured through the
Cabinet. The Cabinet is collectively responsible to the Parliament. The Prime
Minister is the head of the party in majority and is the Chief Executive
authority. He forms the Cabinet. The Legislature and the Executive are not
quite separate and independent in England, so far as the Judiciary is
concerned its independence has been secured by the Act for Settlement of
1701 which provides that the judges hold their office during good behaviour,
and are liable to be removed on a presentation of addresses by both the
Houses of Parliament. They enjoy complete immunity in regard to judicial
acts.

In India, the executive is part of the legislature. The President is the head of
the executive and acts on the advice of the Council of Ministers. Article 53 and
74 (1) He can be impeached by Parliament. Article 56 (1) (b) read with Art
61, Constitution. The Council of Ministers is collectively responsible to the Lok
Sabha Article 75 (3) and each minister works during the pleasure of the
President. Article 75 (2) If the Council of Ministers lose the confidence of the
House, it has to resign. Functionally, the President’s or the Governor’s assent
is required for all legislations. (Articles 111, 200 and Art 368). The President
or the Governor has power of making ordinances when both Houses of the
legislature are not in session. (Articles 123 and 212). This is legislative power,
and an ordinance has the same status as that of a law of the legislature. ( AK
Roy v Union of India AIR 1982 SC 710) The President or the Governor has the power
to grant pardon (Articles 72 and 161) The legislature performs judicial function
while committing for contempt those who defy its orders or commit breach of
privilege (Articles 105 (3) 194 (3) Thus, the executive is dependent on the
Legislature and while it performs some legislative functions such as
subordinate it, also performs some executive functions such as those required
for maintaining order in the house.

There is, however, considerable institutional separation between the judiciary

and the other organs of the government. (See Art 50)

Module – 1 20
The Judges of the Supreme Court are appointed by the President in
consultation with the Chief justice of India and such of the judges of the
supreme Court and the High Courts as he may deem necessary for the
purpose. (Article 124 (2))
The Judges of the High Court are appointed by the President after
consultation with the Chief Justice of India, the Governor of the state, and, in
the case of appointment of a judge other than the Chief justice, the Chief
Justice of the High Court( Article 217 (1).)

It has now been held that in making such appointments, the opinion of the
Chief justice of India shall have primacy. (Supreme Court Advocates on
Record Association.) The judges of the high Court and the judges of the
Supreme Court cannot be removed except for misconduct or incapacity and
unless an address supported by two thirds of the members and absolute
majority of the total membership of the House is passed in each House of
Parliament and presented to the President Article 124 (3) An impeachment
motion was brought against a judge of the Supreme court, Justice
Ramaswami, but it failed to receive the support of the prescribed number of
members of Parliament. The salaries payable to the judges are provided in
the Constitution or can be laid down by a law made by Parliament. Article 125
(1) and Art 221 (1).

Every judge shall be entitled to such privileges and allowances and to such
rights in respect of absence and pension, as may from time to time be
determined by or under any law made by Parliament and until so determined,
to such privileges, allowance and rights as are specified in the Second
Schedule. Neither the privileges nor the allowance nor his rights in respect of
leave of absence or pension shall be varied to his disadvantage after his
appointment.

Appointments of persons to be, and the posting and promotion of, district
judges in any state shall be made by the Governor of the State in consultation
with the High Court exercising jurisdiction in relation to such state (Article 233)
The control over the subordinate courts is vested in the acts of the Legislature
as well as the executive. The Supreme Court has power to make rules (Article
145) and exercises administrative control over its staff.
The judiciary has power to enforce and interpret laws and if they are found in
violation of any provision of the Constitution, it can declare them un-
constitutional and therefore, void. It can declare the executive action void if it
is found against any provisions of the Constitution. Article 50 provides that the
State shall take steps to separate the judiciary from the executive.

Thus, the three organs of the Government (i.e. the Executive, the Legislature
and the Judiciary) are not separate. Actually the complete demarcation of the
functions of these organs of the Government is not possible.

Module – 1 21
The Constitution of India does not recognize the doctrine of separation of
power in its absolute rigidity, but the functions of the three organs of the
government have been sufficiently differentiated.( Ram Jawaya v. State of Punjab,
AIR 1955 SC 549) None of the three of organs of the Government can take over
the functions assigned to the other organs.( Keshanand Bharti v. State of Kerala, AIR
1973 SC 1461, Asif Hameed v. State of J&K 1989 AIR, SC 1899)

In State of Bihar v. Bihar Distillery Ltd., (AIR 1997 SC 1511) the Supreme Court
has held that the judiciary must recognize the fundamental nature and
importance of the legislature process and must accord due regard and
deference to it. The Legislative and Executive are also expected to show due
regard and deference to the judiciary. The Constitution of India recognizes
and gives effect to the concept of equality between the three organs of the
Government. The concept of checks and balance is inherent in the scheme.

RULE OF LAW

The Expression “Rule of Law” plays an important role in the administrative

law. It provides protection to the people against the arbitrary action of the
administrative authorities. The expression ‘rule of law’ has been derived from the
French phrase ‘la Principle de legality’. i.e. a government based on the principles
of law. In simple words, the term ‘rule of law, indicates the state of affairs in a
country where, in main, the law rules. Law may be taken to mean mainly a
rule or principle which governs the external actions of the human beings and
which is recognized and applied by the State in the administration of justice.

Rule of Law is a dynamic concept.

It does not admit of being readily expressed. Hence, it is difficult to define it.
Simply speaking, it means supremacy of law or predominance of law and
essentially, it consists of values.

The concept of the rule of Law is of old origin. Edward Coke is said to be the
originator of this concept, when he said that the King must be under God and
Law and thus vindicated the supremacy of law over the pretensions of the
executives. Prof. A.V. Dicey later developed on this concept in the course of
his lectures at the Oxford University. Dicey was an individualist; he wrote
about the concept of the Rule of law at the end of the golden Victorian era of
laissez-faire in England. That was the reason why Dicey’s concept of the Rule
of law contemplated the absence of wide powers in the hands of

Module – 1 22
government officials. According to him, wherever there is discretion there is
room for arbitrariness. Further he attributed three meanings to Rule of Law.

(1) The First meaning of the Rule of Law is that ‘no man is punishable or can
lawfully be made to suffer in body or goods except for a distinct breach of law
established in the ordinary legal manner before the ordinary courts of the
land.

(2) The Second Meaning of the Rule of Law is that no man is above law.
Every man whatever be his rank or condition. is subject to the ordinary law of
the realm and amenable to the jurisdiction of the ordinary tribunals .

(3) The Third meaning of the rule of law is that the general principle of the
constitution are the result of judicial decisions determining the rights of private
persons in particular cases brought before the court.
The view of Dicey as to the meaning of the Rule of Law has been subject of
much criticism. The whole criticism may be summed up as follows.

Dicey has opposed the system of providing the discretionary power to the
administration. In his opinion providing the discretionary power means
creating the room for arbitrariness, which may create as serious threat to
individual freedom. Now a days it has been clear that providing the discretion
to the administration is inevitable. The opinion of the Dicey, thus, appears to
be outdated as it restricts the Government action and fails to take note of the
changed conception of the Government of the State.

Dicey has failed to distinguish discretionary powers from the arbitrary powers.
Arbitrary power may be taken as against the concept of Rule of Law . In
modern times in all the countries including England, America and India, the
discretionary powers are conferred on the Government. The present trend is
that discretionary power is given to the Government or administrative
authorities, but the statute which provides it to the Government or the
administrative officers lays down some guidelines or principles according to
which the discretionary power is to be exercised. The administrative law is
much concerned with the control of the discretionary power of the
administration. It is engaged in finding out the new ways and means of the
control of the administrative discretion.

According to Dicey the rule of law requires that every person should be
subject to the ordinary courts of the country. Dicey has claimed that there is
no separate law and separate court for the trial of the Government servants in
England. He critcised the system of droit administratif prevailing in France. In
France there are two types of courts Administrative Court and Ordinary Civil
Courts. The disputes between the citizens and the Administration are decided
by the Administrative courts while the other cases, (i.e. the disputes between
the citizens) are decided by the Civil Court. Dicey was very critical to the
separation for deciding the disputes between the administration and the
citizens

Module – 1 23
According to Dicey the Rule of Law requires equal subjection of all persons to
the ordinary law of the country and absence of special privileges for person
including the administrative authority. This proportion of Dicey does not
appear to be correct even in England. Several persons enjoy some privileges
and immunities. For example, Judges enjoy immunities from suit in respect of
their acts done in discharge of their official function. Besides, Public
Authorities Protection Act, 1893, has provided special protection to the official.
Foreign diplomats enjoy immunity before the Court. Further, the rules of
‘public interest privilege may afford officials some protection against orders for
discovery of documents in litigation.’ Thus, the meaning of rule of law taken by
Dicey cannot be taken to be completely satisfactory.

Third meaning given to the rule of law by Dicey that the constitution is the
result of judicial decisions determining the rights of private persons in
particular cases brought before the Courts is based on the peculiar character
of the Constitution of Great Britain.

In spite of the above shortcomings in the definition of rule of law by Dicey, he

must be praised for drawing the attention of the scholars and authorities
towards the need of controlling the discretionary powers of the administration.
He developed a philosophy to control the Government and Officers and to
keep them within their powers. The rule of law established by him requires
that every action of the administration must be backed by law or must have
been done in accordance with law. The role of Dicey in the development and
establishment of the concept of fair justice cannot be denied.

The concept of rule of law, in modern age, does not oppose the practice of
conferring discretionary powers upon the government but on the other hand
emphasizing on spelling out the manner of their exercise. It also ensures that
every man is bound by the ordinary laws of the land whether he be private
citizens or a public officer; that private rights are safeguarded by the ordinary
laws of the land (See Journal of the Indian law Institute, 1958-59, pp. 31-32)

Thus the rule of law signifies that nobody is deprived of his rights and liberties
by an administrative action; that the administrative authorities perform their
functions according to law and not arbitrarily; that the law of the land are not
unconstitutional and oppressive; that the supremacy of courts is upheld and
judicial control of administrative action is fully secured.

Basic Principles of the Rule of Law

 Law is Supreme, above everything and every one. No body is the
above law.
 All things should be done according to law and not according to whim

 No person should be made to suffer except for a distinct breach of law.


 Absence of arbitrary power being hot and sole of rule of law
 Equality before law and equal protection of law

Module – 1 24
 Discretionary should be exercised within reasonable limits set by law

 Adequate safeguard against executive abuse of powers

 Independent and impartial Judiciary

 Fair and Justice procedure

 Speedy Trial

Rule of Law and Indian Constitution

In India the Constitution is supreme. The preamble of our Constitution clearly

sets out the principle of rule of law.
It is sometimes said that planning and welfare schemes essentially strike at
rule of law because they affect the individual freedoms and liberty in may
ways. But rule of law plays an effective role by emphasizing upon fair play and
greater accountability of the administration. It lays greater emphasis upon the
principles of natural justice and the rule of speaking order in administrative
process in order to eliminate administrative arbitrariness.

Rule of Law and Case law

In an early case S.G. Jaisinghani V. Union of India and others, (AIR 1967 SC
1427) the Supreme Court portrayed the essentials of rule of law in a very lucid
manner. It observed: “ The absence of arbitrary power is the first essential of
the rule of law upon which our whole constitutional system is based. In a
system governed by rule of law, discretion when conferred upon executive
authorities must be continued within clearly defined limits. The rule of law from
this points of view means that decisions should be made by the application of
known principles and rules and, in general such decision should be
predictable and the citizen should know where he is. If a decision is taken
without any principle or without any rule it is unpredictable and such a
decision is antithesis of a decision taken in accordance with the rule of law”.

The Supreme Court in a case, namely, Supreme Court Advocates on

Record Association V. Union of India, (AIR 1994 SC 268 at p.298) reiterated that
absence of arbitrariness is one of the essentials of rule of law. The Court
observed. “For the rule of law to be realistic there has to be rooms for
discretionary authority within the operation of rule of law even though it has to
be reduced to the minimum extent necessary for proper, governance, and
within the area of discretionary authority, the existence of proper guidelines or
norms of general application excludes any arbitrary exercise of discretionary
authority. In such a situation, the exercise of discretionary authority in its
application to individuals, according to proper guidelines and norms, further
reduces the area of discretion, but to that extent discretionary authority has to
be given to make the system workable.

The recent expansion of rule of law in every field of administrative functioning

has assigned it is a place of special significance in the Indian administrative

Module – 1 25
law. The Supreme Court, in the process of interpretation of rule of law vis-à-
vis operation of administrative power, in several cases, emphasized upon the
need of fair and just procedure, adequate safeguards against any executive
encroachment on personal liberty, free legal aid to the poor and speedy trail in
criminal cases as necessary adjuncts to rule of law. Giving his dissenting
opinion in the Death penalty case, Mr. Justice Bhagwati explains fully the
significance of rule of law in the following words:

The rule of law permeates the entire fabric of the Constitution and indeed
forms one of its basic features. The rule of law excludes arbitrariness, its
postulate is ‘intelligence without passion’ and reason free from desire.
Wherever we find arbitrariness or unreasonableness there is denial of the rule
of law. Law in the context of rule of law does not mean any law enacted by
legislative authority, howsoever arbitrary, despotic it may be, otherwise even
in dictatorship it would be possible to say that there is rule of law because
every law made by the dictator, however arbitrary and unreasonable, has to
be obeyed and every action has to be taken in conformity with such law. In
such a case too even where the political set-up is dictatorial it is the law that
governs the relationship between men

The modern concept of the Rule of Law is fairly wide and, therefore, sets
up an idea for government to achieve. This concept was developed by the
International Commission of Jurists, known as Delhi Declaration, 1959, which
was later on confirmed at Lagos in 1961. According to this formulation, the
Rule of Law implies that the functions of the government in a free society
should be so exercised as to create conditions in which the dignity of man as
an individual is upheld.

During the last few years the Supreme Court in India has developed some fine
principles of Third World jurisprudence. Developing the same new
constitutionalism further, the Apex Court in Veena Seth v. State (AIR 1983 SC
339) of Bihar extended the reach of the Rule of Law to the poor and the
downtrodden, the ignorant and the illiterate, who constitute the bulk of
humanity in India, when it ruled that the Rule of Law does not exist merely for
those who have the means to fight for their rights and very often do so for the
perpetuation of the status quo, which protects and preserves their dominance
and permits them to exploit a large section of the community. The opportunity
for this ruling was provided by a letter written by the Free Legal Aid
Committee, Hazaribagh, Bihar drawing its attention to unjustified and illegal
detention of certain prisoners in jail for almost two or three decades.

Recent aggressive judicial activism can only be seen as a part of the efforts of
the Constitutional Courts in India to establish rule-of-law society, which
implies that no matter how high a person, may be the law is always above
him. Court is also trying to identify the concept of rule of law with human rights
of the people. The Court is developing techniques by which it can force the
government not only to submit to the law but also to create conditions where
people can develop capacities to exercise their rights properly and
meaningfully. The public administration is responsible for effective
implementation of rule of law and constitutional commands, which effectuate

Module – 1 26
fairly the objective standards laid down by law. Every public servant is a
trustee of the society and is accountable for due effectuation of constitutional
goals. This makes the concept of rule of law highly relevant to our context.

Droit Administratif

Meaning of Droit administratif French administrative law is known as Droit

Administratif which means a body of rules which determine the organization,
powers and duties of public administration and regulate the relation of the
administration with the citizen of the country. Droit Administrative does not
represent the rules and principles enacted by Parliament. It contains the rules
developed by administrative courts.

Napoleon Bonaparte was the founder of the Droit administrative. It was he

who established the Conseil d’Etat. He passed an ordinance depriving the law
courts of their jurisdiction on administrative matters and another ordinance
that such matters could be determined only by the Conseil d’Etat.

Waline, the French jurist, propounds three basic principles of Droit

administrative:

1. the power of administration to act suo motu and impose directly

on the subject the duty to obey its decision;
2. the power of the administration to take decisions and to execute
them suo motu may be exercised only within the ambit of law
which protects individual liberties against administrative
arbitrariness;
3. the existence of a specialized administrative jurisdiction.

One good result of this is that an independent body reviews every

administrative action. The Conseil d’Etat is composed of eminent civil
servants, deals with a variety of matters like claim of damages for wrongful
acts of Government servants, income-tax, pensions, disputed elections,
personal claims of civil servants against the State for wrongful dismissal or
suspension and so on. It has interfered with administrative orders on the
ground of error of law, lack of jurisdiction, irregularity of procedure and
detournement depouvior (misapplication of power). It has exercised its
jurisdiction liberally.

Main characteristic features of droit administratif. The following

characteristic features are of the Droit Administratif in France:-

Module – 1 27
 1. Those matters concerning the State and administrative litigation
falls within the jurisdiction of administrative courts and cannot be
decided by the land of the ordinary courts.
2. Those deciding matters concerning the State and administrative
litigation, rules as developed by the administrative courts are
applied.
3. If there is any conflict of jurisdiction between ordinary courts and
administrative court, it is decided by the tribunal des conflicts.
4. Conseil d’Etat is the highest administrative court.

Prof. Brown and Prof. J.P. Garner have attributed to a combination of

following factors as responsible for its success

i) The composition and functions of the Conseil d’Etat itself;

ii) The flexibility of its case-law;
iii) The simplicity of the remedies available before the
administrative courts;
iv) The special procedure evolved by those courts; and
v) The character of the substantive law, which they apply.

Despite the obvious merits of the French administrative law system, Prof.
Dicey was of the opinion that there was no rule of law in France nor was the
system so satisfactory as it was in England. He believed that the review of
administrative action is better administered in England than in France.

The system of Droit Administratif according to Dicey, is based on the following

two ordinary principles which are alien to English law—

Firstly, that the government and every servant of the government possess, as
representative of the nation, a whole body of special rights, privileges or
prerogatives as against private citizens, and the extent of rights, privileges or
considerations which fix the legal rights and duties of one citizen towards
another. An individual in his dealings with the State does not, according to
French law; stand on the same footing as that on which he stands in dealing
with his neighbor.
Secondly, that the government and its officials should be independent of and
free from the jurisdiction of ordinary courts.

It was on the basis of these two principles that Dicey observed that Droit
Administratif is opposed to rule of law and, therefore, administrative law is
alien to English system. But this conclusion of Dicey was misconceived. Droit
Administratif, that is, administrative law was as much there in England as it
was in France but with a difference that the French Droit Administratif was
based on a system, which was unknown to English law. In his later days after
examining the things closely, Dicey seems to have perceptibly modified his
stand.

Module – 1 28
Despite its overall superiority, the French administrative law cannot be
characterized with perfection. Its glories have been marked by the persistent
slowness in the judicial reviews at the administrative courts and by the
difficulties of ensuring the execution of its last judgment. Moreover, judicial
control is the only one method of controlling administrative action in French
administrative law, whereas, in England, a vigilant public opinion, a watchful
Parliament, a self -disciplined civil service and the jurisdiction of administrative
process serve as the additional modes of control over administrative action.
By contrast, it has to be conceded that the French system still excels its
counterpart in the common law countries of the world.

CLASSIFICATION OF ADMINISTRATIVE ACTION

Administrative action is a comprehensive term and defies exact definition. In

modern times the administrative process is a by-product of intensive form of
government and cuts across the traditional classification of governmental
powers and combines into one all the powers, which were traditionally
exercised by three different organs of the State. Therefore, there is general
agreement among the writers on administrative law that any attempt of
classifying administrative functions or any conceptual basis is not only
impossible but also futile. Even then a student of administrative law is
compelled to delve into field of classification because the present-day law
especially relating to judicial review freely employs conceptual classification of
administrative action. Thus, speaking generally, an administrative action can
be classified into four categories:

i) Rule-making action or quasi-legislative action.

ii) Rule-decision action or quasi-judicial action.
iii) Rule-application action or administrative action.
iv) Ministerial action

i) Rule-making action or quasi-legislative action – Legislature is the

law-making organ of any state. In some written constitutions, like the
American and Australian Constitutions, the law making power is expressly
vested in the legislature. However, in the Indian Constitution though this
power is not so expressly vested in the legislature, yet the combined effect of
Articles 107 to III and 196 to 201 is that the law making power can be
exercised for the Union by Parliament and for the States by the respective
State legislatures. It is the intention of the Constitution-makers that those
bodies alone must exercise this law-making power in which this power is
vested. But in the twentieth Century today these legislative bodies cannot
give that quality and quantity of laws, which are required for the efficient
functioning of a modern intensive form of government. Therefore, the

Module – 1 29
delegation of law-making power to the administration is a compulsive
necessity. When any administrative authority exercises the law-making
power delegated to it by the legislature, it is known as the rule-making power
delegated to it by the legislature, it is known as the rule-making action of the
administration or quasi-legislative action and commonly known as delegated
legislation.
Rule-making action of the administration partakes all the characteristics,
which a normal legislative action possesses. Such characteristics may be
generality, prospectivity and a behaviour that bases action on policy
consideration and gives a right or a disability. These characteristics are not
without exception. In some cases, administrative rule-making action may be
particularised, retroactive and based on evidence.

(ii) Rule-decision action or quasi-judicial action – Today the bulk of the

decisions which affect a private individual come not from courts but from
administrative agencies exercising ad judicatory powers. The reason seems
to be that since administrative decision-making is also a by-product of the
intensive form of government, the traditional judicial system cannot give to
the people that quantity of justice, which is required in a welfare State.
Administrative decision-making may be defined, as a power to perform
acts administrative in character, but requiring incidentally some
characteristics of judicial traditions. On the basis of this definition, the
following functions of the administration have been held to be quasi-judicial
functions:
1. Disciplinary proceedings against students.
2. Disciplinary proceedings against an employee for
misconduct.
3. Confiscation of goods under the sea Customs Act, 1878.
4. Cancellation, suspension, revocation or refusal to renew license or
permit by licensing authority.
5. Determination of citizenship.
6. Determination of statutory disputes.
7. Power to continue the detention or seizure of goods
beyond a particular period.
8. Refusal to grant ‘no objection certificate’ under the
Bombay Cinemas (Regulations) Act, 1953.
9. Forfeiture of pensions and gratuity.
10. Authority granting or refusing permission for
retrenchment.

Module – 1 30
 11. Grant of permit by Regional Transport Authority.

Attributes of administrative decision-making action or quasi-judicial action and

the distinction between judicial, quasi-judicial and administrative action.

(iii) Rule-application action or administrative action – Though the

distinction between quasi-judicial and administrative action has become
blurred, yet it does not mean that there is no distinction between the two. If
two persons are wearing a similar coat, it does not mean that there is no
difference between them. The difference between quasi-judicial and
administrative action may not be of much practical consequence today but it
may still be relevant in determining the measure of natural justice applicable
in a given situation.

In A.K. Kraipak v. Union of India, the Court was of the view that in order to
determine whether the action of the administrative authority is quasi-judicial
or administrative, one has to see the nature of power conferred, to whom
power is given, the framework within which power is conferred and the
consequences.

Therefore, administrative action is the residuary action which is neither

legislative nor judicial. It is concerned with the treatment of a particular
situation and is devoid of generality. It has no procedural obligations of
collecting evidence and weighing argument. It is based on subjective
satisfaction where decision is based on policy and expediency. It does not
decide a right though it may affect a right. However, it does not mean that the
principles of natural justice can be ignored completely when the authority is
exercising “administrative powers”. Unless the statute provides otherwise, a
minimum of the principles of natural justice must always be observed
depending on the fact situation of each case.

No exhaustive list of such actions may be drawn; however, a few may be

noted for the sake of clarity:

1) Making a reference to a tribunal for adjudication under the Industrial

Disputes Act.
2) Functions of a selection committee.

Administrative action may be statutory, having the force of law, or non

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

Therefore, at this stage it becomes very important for us to know what

exactly is the difference between Administrative and quasi-judicial Acts.

Module – 1 31
Thus broadly speaking, acts, which are required to be done on the subjective
satisfaction of the administrative authority, are called ‘administrative’ acts,
while acts, which are required to be done on objective satisfaction of the
administrative authority, can be termed as quasi-judicial acts. Administrative
decisions, which are founded on pre-determined standards, are called
objective decisions whereas decisions which involve a choice as there is no
fixed standard to be applied are so called subjective decisions. The former is
quasi-judicial decision while the latter is administrative decision. In case of
the administrative decision there is no legal obligation upon the person
charged with the duty of reaching the decision to consider and weigh,
submissions and arguments or to collate any evidence. The grounds upon
which he acts and the means, which he takes to inform himself before acting,
are left entirely to his discretion. The Supreme Court observed, “It is well
settled that the old distinction between a judicial act and administrative act
has withered away and we have been liberated from the pestilent incantation
of administrative action.
(iv) Ministerial action – A further distillate of administrative action is
ministerial action. Ministerial action is that action of the
administrative agency, which is taken as matter of duty imposed
upon it by the law devoid of any discretion or judgment. Therefore,
a ministerial action involves the performance of a definitive duty in
respect of which there is no choice. Collection of revenue may be
one such ministerial action.

1. Notes and administrative instruction issued in the absence of any

2. If administrative instructions are not referable to any statutory
authority they cannot have the effect of taking away rights vested in
the person governed by the Act.

DELEGATED LEGISLATION

One of the most significant developments of the present century is the growth
in the legislative powers of the executives. The development of the legislative
powers of the administrative authorities in the form of the delegated legislation
occupies very important place in the study of the administrative law. We know
that there is no such general power granted to the executive to make law it
only supplements the law under the authority of legislature. This type of
activity namely, the power to supplement legislation been described as
delegated legislation or subordinate legislation.

Why delegated legislation becomes inevitable The reasons as to why the

Parliament alone cannot perform the jobs of legislation in this changed
context are not far to seek. Apart from other considerations the inability of the
Parliament to supply the necessary quantity and quality legislation to the
society may be attributed to the following reasons :

Module – 1 32
 i) Certain emergency situations may arise which necessitate
special measures. In such cases speedy and appropriate action
is required. The Parliament cannot act quickly because of its
political nature and because of the time required by the
Parliament to enact the law.

ii) The bulk of the business of the Parliament has increased and it
has no time for the consideration of complicated and technical
matters. The Parliament cannot provide the society with the
requisite quality and quantity of legislation because of lack of
time. Most of the time of the Parliament is devoted to political
matters, matters of policy and particularly foreign affairs..

iii) Certain matters covered by delegated legislation are of a

technical nature which require handling by experts. In such
cases it is inevitable that powers to deal with such matters is
given to the appropriate administrative agencies to be exercised
according to the requirements of the subject matter.
"Parliaments" cannot obviously provide for such matters as the
members are at best politicians and not experts in various
spheres of life.

iv) Parliament while deciding upon a certain course of action cannot

foresee the difficulties, which may be encountered in its
execution. Accordingly various statutes contain a 'removal of
difficulty clause' empowering the administration to remove such
difficulties by exercising the powers of making rules and
regulations. These clauses are always so worded that very wide
powers are given to the administration.

iv) The practice of delegated legislation introduces flexibility in the

law. The rules and regulations, if found to be defective, can be
modified quickly. Experiments can be made and experience can
be profitability utilized.

However the attitude of the jurists towards delegated legislation has not been
unanimous. The practice of delegated legislation was considered a factor,
which promoted centralization. Delegated Legislation was considered a
danger to the liberties of the people and a devise to place despotic powers in
few hands. It was said that delegated legislation preserved the outward show
of representative institutions while placing arbitrary and irresponsible power in
new hands. But the tide of delegated legislation was high and these protests
remained futile.

A very strong case was made out against the practice of

Delegated Legislation by Lord Hewart who considered increased
governmental interference in individual activity and considered this practice as
usurpation of legislative power of the executive. He showed the dangers
inherent in the practice and argued that wide powers of legislation entrusted
to the executive lead to tyranny and absolute despotism. The criticism was so

Module – 1 33
strong and the picture painted was so shocking that a high power committee
to inquire into matter was appointed by the Lord Chancellor. This committee
thoroughly inquired into the problem and to the conclusion that delegated
legislation was valuable and indeed inevitable. The committee observed that
with reasonable vigilance and proper precautions there was nothing to be
feared from this practice.

Nature and Scope of delegated legislation Delegated legislation means

legislation by authorities other than the Legislature, the former acting on
express delegated authority and power from the later.

Delegation is considered to be a sound basis for administrative efficiency and

it does not by itself amount to abdication of power if restored to within proper
limits. The delegation should not, in any case, be unguided and uncontrolled.
Parliament and State Legislatures cannot abdicate the legislative power in its
essential aspects which is to be exercised by them. It is only a nonessential
legislative function that can be delegated and the moot point always lies in the
line of demarcation between the essential and nonessential legislative
functions.

The essential legislative functions consist in making a law. It is to the

legislature to formulate the legislative policy and delegate the formulation of
details in implementing that policy. Discretion as to the formulation of the
legislative policy is prerogative and function the legislature and it cannot be
delegated to the executive. Discretion to make notifications and alterations in
an Act while extending it and to effect amendments or repeals in the existing
laws is subject to the condition precedent that essential legislative functions
cannot be delegated authority cannot be precisely defined and each case has
to be considered in its setting.

In order to avoid the dangers, the scope of delegation is strictly circumscribed

by the Legislature by providing for adequate safeguards, controls and appeals
against the executive orders and decisions.

The power delegated to the Executive to modify any provisions of an Act by

an order must be within the framework of the Act giving such power. The
power to make such a modification no doubt, implies certain amount of
discretion but it is a power to be exercised in aid of the legislative policy of the
Act and cannot

i) travel beyond it, or

ii) run counter to it, or
iii) certainly change the essential features, the identity, structure or
the policy of the Act.

Under the constitution of India, articles 245 and 246 provide that the
legislative powers shall be discharged by the Parliament and State legislature.
The delegation of legislative power was conceived to be inevitable and
therefore it was not prohibited in the constitution. Further, Articles 13(3)(a) of

Module – 1 34
the Constitution of India lays down that law includes any ordinances, order by-
law, rule regulation, notification, etc. Which if found inviolation of fundamental
rights would be void. Besides, there are number of judicial pronouncements
by the courts where they have justified delegated legislation. For e.g.

In re Delhi Laws Act case, AIR 1961 Supreme Court 332; Vasantlal Magan Bhaiv.
State of Bombay, air 1961 SC 4; S. Avtar Singh v. State of Jammu and Kashmir, AIR
1977 J&K 4.

While commenting on indispensability of delegated legislation JusticeKrishna

Iyer has rightly observed in the case of Arvinder Singh v. State of Punjab, AIR
A1979 SC 321, that the complexities of modern administration are so bafflingly
intricate and bristle with details, urgencies, difficulties and need for flexibility
that our massive legislature may not get off to a start if they must directly and
comprehensively handle legislative business in their plentitude, proliferation
and particularization Delegation of some part of legislative power becomes a
compulsive necessity for viability.

A provision in a statute which gives an express power to the Executive to

amend or repeal any existing law is described in England as Henry viii
Clause because the King came to exercise power to repeal Parliamentary
laws. The said clause has fallen into disuse in England, but in India some
traces of it are found here and there, for example, Article 372 of the
Constitution authorizes the president of India to adopt pro Constitutional laws,
and if necessary, to make such adaptations and modifications, (whether by
way of repeal or amendment) so as to bring them in accord with the provisions
of the Constitution. The State Reorganization Act, 1956 and some other Acts
similar thereto also contain such a provision. So long as the modification of a
provision of statute by the Executive is innocuous and immaterial and does
not effect any essential change in the matter.

Types of delegation of legislative power in India There are various types of

delegation of legislative power.

1. Skeleton delegation In this type of delegation of legislative power, the

enabling statutes set out broad principles and empowers the executive
authority to make rules for carrying out the purposes of the Act.
A typical example of this kind is the Mines and Minerals (Regulation
and Development) Act, 1948.

2. Machinery type This is the most common type of delegation of

legislative power, in which the Act is supplemented by machinery provisions,
that is, the power is conferred on the concerned department of the
Government to prescribe –

i) The kind of forms

ii) The method of publication

Module – 1 35
 iii) The manner of making returns, and
v) Such other administrative details

In the case of this normal type of delegated legislation, the limits of the
delegated power are clearly defined in the enabling statute and they do not
include such exceptional powers as the power to legislate on matters of
principle or to impose taxation or to amend an act of legislature. The
exceptional type covers cases where –

i) the powers mentioned above are given , or

ii) the power given is so vast that its limits are almost impossible of
definition, or
iii) while limits are imposed, the control of the courts is ousted.
Such type of delegation is commonly known as the Henry VIII Clause.

An outstanding example of this kind is Section 7 of the Delhi Laws Act of 1912
by which the Provincial Government was authorized to extend, with
restrictions and modifications as it thought fit any enactment in force in any
part of India to the Province of Delhi. This is the most extreme type of
delegation, which was impugned in the Supreme Court in the Delhi Laws Act
case. A.I.R. 1951 S.C.332. It was held that the delegation of this type was invalid if
the administrative authorities materially interfered with the policy of the Act, by
the powers of amendment or restriction but the delegation was valid if it did
not effect any essential change in the body or the policy of the Act.

That takes us to a term "bye-law" whether it can be declared ultra vires

? if so when ? Generally under local laws and regulations the term bye-law is
used such as

i) public bodies of municipal kind

ii) public bodies concerned with government, or
iii) corporations, or
iv) societies formed for commercial or other purposes.

The bodies are empowered under the Act to frame bye-laws and regulations
for carrying on their administration.
There are five main grounds on which any bye-law may be struck down as
ultra vires. They are :

a) That is not made and published in the manner specified by the

Act, which authorises the making thereof;
b) That is repugnant of the laws of the land;
c) That is repugnant to the Act under which it is framed;

Module – 1 36
 d) That it is uncertain ; and
e) That it is unreasonable.

Modes of control over delegated legislation The practice of conferring legislative

powers upon administrative authorities though beneficial and necessary is
also dangerous because of the possibility of abuse of powers and other
attendant evils. There is consensus of opinion that proper precautions must
be taken for ensuring proper exercise of such powers. Wider discretion is
most likely to result in arbitrariness. The exercise of delegated legislative
powers must be properly circumscribed and vigilantly scrutinized by the Court
and Legislature is not by itself enough to ensure the advantage of the practice
or to avoid the danger of its misuse. For the reason, there are certain other
methods of control emerging in this field.

The control of delegated legislation may be one or more of the

following types: -
1) Procedural;
2) Parliamentary; and
3) Judicial

Judicial control can be divided into the following two classes: -

i) Doctrine of ultra vires and
vi) Use of prerogative writs.

Procedural Control over Delegated Legislation

(A Prior consultation of interests likely to be affected by proposed delegated
Legislation: From the citizen's post of view the must beneficial safeguard
against the dangers of the misuse of delegated Legislation is the development
of a procedure to be followed by the delegates while formulating rules and
regulations. In England as in America the Legislature while delegating powers
abstains from laying down elaborate procedure to be followed by the
delegates. But certain acts do however provide for the consultation of
interested bodies. and sometimes of certain Advisory Committees which must
be consulted before the formulation and application of rules and regulations.
This method has largely been developed by the administration independent of
statute or requirements. The object is to ensure the participation of affected
interests so as to avoid various possible hardships. The method of
consultation has the dual merits of providing as opportunity to the affected
interests to present their own case and to enable the administration to have a
first-hand idea of the problems and conditions of the field in which delegated
legislation is being contemplated.

(B) Prior publicity of proposed rules and regulations: Another method is

antecedent publicity of statutory rules to inform those likely to be affected by
the proposed rules and regulations so as to enable them to make
representation for consideration of the rule-making authority. The rules of

Module – 1 37
Publication Act, 1893, S.I. provided for the use of this method. The Act
provided that notice of proposed 'statutory rules' is given and the
representations of suggestions by interested bodies be considered and acted
upon if proper. But the Statutory Instruments Act, 1946 omitted this practice in
spite of the omission, the Committee on Ministers Powers 1932, emphasized
the advantages of such a practice.

(c) Publication of Delegated Legislation - Adequate publicity of delegated

legislation is absolutely necessary to ensure that law may be ascertained with
reasonable certainty by the affected persons. Further the rules and
regulations should not come as a surprise and should not consequently bring
hardships which would naturally result from such practice. If the law is not
known a person cannot regulate his affiars to avoid a conflict with them and to
avoid losses. The importance of these laws is realised in all countries and
legislative enactments provide for adequate publicity.

(d) Parliamentary control in India over delegation In India, the question of

control on rule-making power engaged the attention of the Parliament. Under
the Rule of Procedure and Conduct of Business of the House of the People
provision has been made for a Committee which is called 'Committee on
Subordinate Legislation'.

The First Committee was constituted on Ist December, 1953 for

i) Examining the delegated legislation, and
ii) Pointing out whether it has-
a) Exceeded or departed from the original intentions of the
Parliament, or
b) Effected any basic changes.

Originally, the committee consisted to 10 members of the House and its

strength was later raise to 13 members. It is usually presided over by a
member of the Opposition. The Committee

i) scrutinizes the statutory rules, orders. Bye-laws, etc. made by

any-making authority, and
ii) report to the House whether the delegated power is being
properly exercised within the limits of the delegated authority,
whether under the Constitution or an Act of Parliament.
It further examines whether
i) The Subordinate legislation is in accord with the general objects
of the Constitution or the Act pursuant to which it is made;
ii) it contains matter which should more properly be dealt within an
Act of Parliament;
iii) it contains imposition of any tax;

Module – 1 38
 iv) it, directly or indirectly, ousts the jurisdiction of the courts of law;
v) it gives retrospective effect to any of the provisions in respect of
which the Constitution or the Act does not expressly confer any
such power;
vi) It is constitutional and valid;
vii) it involves expenditure from the Consolidated Fund of India or
the Public Revenues;
viii) its form or purpose requires any elucidation for nay reason;
ix) it appears to make some unusual or unexpected use of the
powers conferred by the Constitution or the Act pursuant to
which it is made; and
x) there appears to have been unjustifiable delay in its publication
on its laying before the Parliament.
The Committee of the first House of the People submitted a number of reports
and continues to do useful work. The Committee considered the question of
bringing about uniformity in the provisions of the Acts delegating legislative
powers. It made certain recommendations in its First report (March, 1954)
which it later modified in its Third Report (May, 1955) after noting the existing
divergent legislation in India. The following are the modified recommendations

1. That, in future, the Acts containing provisions for making rules, etc.,
shall lay down that such rules shall be laid on the Table as soon as possible.

2. That all these rules shall be laid on the Table for a uniform and total
period of 30 days before the date of their final publication.

But it is not deemed expedient to lay any rule on the Table before the date of
publication; such rule may be laid as soon as possible after publication. An
Explanatory Note should, however, accompany such rules at the time they are
so laid, explaining why it was not deemed expedient to lay these rules on the
Table of the House before they were published.

3. On the recommendation of the Committee, the bills are generally

accompanied with Memoranda of Delegated Legislation in which; -.
i) full purpose and effect of the delegation of power to the subordinate
authorities,
ii) the points which may be covered by the rules,
iii) the particulars of the subordinate authorities or the persons who are to
exercise the delegated power, and
iv) the manner in which such power has to be exercised, are mentioned.
They point out if the delegation is of normal type or unusual.

Module – 1 39
The usefulness of the Committee lies more in ensuring that the standards of
legislative rule-making are observed that in merely formulating such
standards. It should effectively point out the cases of any unusual or
unexpected use of legislative power by the Executive.

Parliamentary control of delegated legislation is thus exercised by

i) taking the opportunity of examining the provisions providing for
delegation in a Bill, and
ii) getting them scrutinized by parliamentary committee of the
Rules, Regulations, Bye-laws and orders,
When the Bill is debated,----
i) the issue of necessity of delegation, and
ii) the contents of the provisions providing for delegation, can be
taken up.
After delegation is sanctioned in an Act, the exercise of this power by the
authority concerned should receive the attention of the House of the
Parliament. Indeed, it is this later stage of parliamentary scrutiny of the
delegated authority and the rules as framed in its exercise that is more
important. In a formal sense, this is sought to be provided by making it
necessary that the rules, etc., shall be laid on the Table of the House. The
members are informed of such laying in the daily agenda of the House. The
advantage of this procedure is that members of both the Houses have such
chances as parliamentary procedure –

i) the modification or the repeal of the enactment under which

obnoxious rules and orders are made, or
ii) revoking rules and orders themselves.

The matter may be discussed in the House during the debates or on special
motions.
The provisions for laying the rule, etc., are being made now practically
in every Act which contains a rule making provision. Such provisions are
enacted in the following form: -

(1) The Government may by notification in the official Gazette,

make rules for carrying out all or any of the purposes of this Act.

(2) Every rule made under this section shall be laid, as soon as may
be, after it is made, before each House of Parliament while it is in session for
a total period of fourteen days which may be comprised in one session or in
the successive session immediately following, both Houses agree in making
any modification in the Rule or in the annulment of the rule. The rule thereafter
have effect only in such modified form or shall stand annulled, as the case
may be, so however that any such modification or annulment shall

Module – 1 40
be without prejudice to the validity of anything previously done under that
rule."
If the Parliamentary control is not effective it becomes necessary to
provide for certain procedural safeguards, which go to make the delegated
legislation ascertainable and accessible.

Control of delegated legislation by procedure---- The following

requirements are made necessary for the exercise of the delegated authority
under different statutes so that procedural safeguards are ensured.

i) The Doctrine of ultra vires---- The chief instrument in the

hands of the judiciary to control delegated legislation is the
"Doctrine of ultra vires."
The doctrine of ultra vires may apply with regard to-
i) procedural provision; and
ii) substantive provisions.
i) Procedural defects The Acts of Parliament delegating legislative
powers to other bodies or authorities often provide certain procedural
requirements to be complied with by such authorities while making rules and
regulations, etc. These formalities may consist of consultation with interested
bodies, publication of draft rules and regulations, hearing of objections,
considerations of representations etc. If these formal requirements are
mandatory in nature and are disregarded by the said authorities then the rules
etc. so made by these authorities would be invalidated by the Judiciary. In
short subordinate legislation in contravention of mandatory procedural
requirements would be invalidated by the court as being ultra vires the parent
statute. Provision in the parent Statute for consulting the interested parties
likely to be affected, may, in such cases, avoid all these inconveniences and
the Railway authorities may not enact such rule after they consult these
interests. A simple provision regarding consultation thus assumes importance.
On the other hand, if the procedural requirements were merely of directory
nature, then a disregard thereof would not affect the validity of subordinate
legislation.

The fact that procedural requirements have far reaching effects, may
be made clear by just one example. Suppose the Railway authorities want to
relieve pressure of work of unloading goods during daytime at a station amidst
a big and brisk business center. The public wants a reduction in the traffic
jams due to heavy traffic because of unloading. The traffic authorities and
Railway authorities decide to tackle the problem effectively by making the rule
that the unloading be done during late hours of night. The railway authorities
make an order to this effect, without consulting interested bodies. Such rule
might cause many hardships e.g. –

i) The conditions of labour are such that unloading of goods during the
night would adversely affect the profit margin as the workers would charge
more if they work in night shifts.

Module – 1 41
 ii) It may not be without risk to carry money from one place to
another during late hours of night. If safety measures are employed, that in
addition to the element of a greater risk, expenses would increase, adversely
affecting the margin of profits.
iii) The banking facilities may not be available freely during night.
iv) Additional staff may be necessary in various concerns for night
duty.
v) This business are loading and unloading during night may cause
inconvenience and disturbance in the locality.
Now infect of these difficulties another alternative which appears to be
desirable is better supervision of unloading and better regulation of traffic by
posting more police officers and stricter enforcement of traffic laws.
Provisions in the parent statute for consulting the interested parties
likely to be affected may, in such cases, avoid all these inconveniences, and
the Railway authorities may not act such a rule after they consult these
interests. A simple provision regarding consultation thus assumes importance.

The question of the effectiveness of the application of the doctrine of ultra

vires, so far as procedure is concerned, would largely depend upon the words
used in the particular statue. If the words are specific and clearly indicate the
bodies to be consulted, then it would be possible to show noncompliance.

But in case where the minister is vested with the discretion to consult these
bodies which he considers to be representative of the interests likely to be
affected or where he is to consult such bodies, if any, it is very difficult to
prove noncompliance with the procedural requirements.

(ii) Substantive Defects In case of delegated legislation, unlike an Act of the

Parliament, the court can inquire into whether it is within the limits laid down
by the present statute. If a piece of delegated legislation were found to be
beyond such limits, court would declare it to be ultra vires and hence invalid.
(R.V.Minister of Health, (1943), 2 ALL ER591).The administrative authorities
exercising legislative power under the authority of an Act of the Parliament
must do so in accordance with the terms and objects of such statute. To find
out whether administrative authorities have properly exercised the powers, the
court have to construe the parent statute so as to find out the intention of the
legislature. The existence and extent of the powers of administrative
authorities is to be affixed in the light of the provisions of the parent Act.

Mandatory or directory procedural provision The question whether particular

procedural requirements are mandatory or directory must be examined with
care. In case the statute provided for the effect of noncompliance of such
requirements, then it is to be followed by the courts without difficulty. But
uncertainty creeps in where the statute is silent on the point and decision is to
be made by the judiciary. The courts is determining whether the provisions to
this effect in a particular Statute are mandatory or directory are guided by

Module – 1 42
various factors. They must take into consideration the whole scheme of
legislation and particularly evaluate the position of such provisions in their
relation with the object of legislation. The nature of the subject matter to be
regulated, the object of legislation, and the provisions as placed in the body of
the Act must all be considered carefully, so as to find out as to what was the
intention of the legislature. Much would depend upon the terms and scheme
of a particular legislation, and hence broad generalizations in this matter are
out of place.

Judicial control over delegated legislature Judicial control over delegated

legislature can be exercised at the following two levels :-

1) Delegation may be challenged as unconstitutional; or

2) That the Statutory power has been improperly exercised.

The delegation can be challenged in the courts of law as being

unconstitutional, excessive or arbitrary.

The scope of permissible delegation is fairly wide. Within the wide

limits. Delegation is sustained it does not otherwise, infringe the provisions of
the Constitution. The limitations imposed by the application of the rule of ultra
vires are quite clear. If the Act of the Legislature under which power is
delegated, is ultra vires, the power of the legislature in the delegation can
never be good. No delegated legislation can be inconsistent with the
provisions of the Fundamental Rights. If the Act violates any Fundamental
Rights the rules, regulations and bye-laws framed there under cannot be
better.
Where the Act is good, still the rules and regulations may contravene
any Fundamental Right and have to be struck down.
The validity of the rules may be assailed as the stage in two ways :-
i) That they run counter to the provisions of the Act; and
ii) That they have been made in excess of the authority delegated
by the Legislature.
The method under these sub-heads for the application of the rule of ultra vires
is described as the method of substantive ultra vires. Here the substance of
rules and regulations is gone into and not the procedural requirements of the
rule making that may be prescribed in the statute. The latter is looked into
under the procedural ultra vires rule.

Power of Parliament to repeal law Under the provision to clause (2) of Article
254, Parliament can enact at any time any law with respect to the same
matter including a law adding to, amending, varying or repealing the law so
made by the Legislature of the State,

Ordinarily, the Parliament would not have the power to repeal a law
passed by the State Legislature even though it is a law with respect to one of
the matters enumerated in the Concurrent List. Section 107 of the
Government of India Act, 1935 did not contain any such power. Art. 254 (2) of
the Constitution of India is in substance a reproduction of section 107 of the

Module – 1 43
1935 Act, the concluding portion whereof being incorporated in a proviso with
further additions.

Now, by the proviso to Art. 254 (2), the Indian Constitution has
enlarged the powers of Parliament and, under that proviso, Parliament can do
what the Central Legislature could not do under section 107 of the
Government of India Act, and can enact a law adding to, amending, varying or
repealing a law of the State when it relates to a matter mentioned in the
concurrent List. Therefore the Parliament can, acting under the proviso to Art.
254 (2) repeal a State Law.

While the proviso does confer on Parliament a power to repeal a law passed
by the State Legislature, this power is subject to certain limitations. It is limited
to enacting a law with respect to the same matter adding to, amending,
varying or repealing a law so made by the State Legislature. The law referred
to here is the law mentioned in the body of Art. 254 (2), It is a law made by the
State Legislature with reference to a matter in the Concurrent List containing
provisions repugnant to an earlier law made by Parliament and with the
consent to an earlier law made by Parliament and with the consent of the
President. It is only such a law that can be altered, amended, repealed under
the proviso.

The power of repeal conferred by the proviso can be exercised by

Parliament alone and cannot be delegated to an executive authority.
The repeal of a statute means that the repealed statute must be
regarded as if it had never been on the statute book. It is wiped out from the
statute book.
In the case of Delhi Laws Act, 1951 S.C.R. 747, it was held that to
repeal or abrogate an existing law is the exercise of an essential legislative
power.
Parliament, being supreme, can certainly make a law abrogating or
repealing by implication provisions of any preexisting law and no exception
can be taken on the ground of excessive delegation to the Act of the
Parliament itself.

(a) Limits of permissible delegation: When a legislature is given plenary power

to legislate on a particular subject, there must also be an implied power to
make laws incidental to the exercise of such power. It is a fundamental
principle of constitutional law that everything necessary to the exercise of a
power is included in the grant of the power. A legislature cannot certainly strip
itself of its essential functions and vest the same on an extraneous authority.
The primary duty of law making has to be discharged by the legislature itself
but delegation may be reported to as a subsidiary or ancillary measure.
(Edward Mills Co. Ltd. v. State of Ajmer, (1955) 1. S.C.R. 735)

Mahajan C.J. in Hari Shankar Bagla v. State of Madya Pradesh, A.I.R. 1954
S.C. 555 : (1955) 1.S.C.R. 380 at p. 388 observed :

"The Legislature cannot delegate its functions of laying down legislative policy
in respect of a measure and its formulation as a rule of conduct. The

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legislature must declare the policy of the law and the legal principles which
are to control and given cases and must provide a standard to guide the
officials of the body in power to execute the law".

Therefore the extent to which delegation is permissible is well settled. The

legislature cannot delegate its essential legislative policy and principle and
must afford guidance for carrying out the said policy before it delegates its
delegates its subsidiary powers in that behalf. (Vasant lal Maganbhai
Sanjanwala v. State of Bombay, A.I.R. 1961 S.C. 4)

The guidance may be sufficient if the nature of things to be done and the
purpose for which it is to be done are clearly indicated. The case of Hari
Shankar Bagla v. State of Madhya Pradesh, A.I.R. 1954 S.C. 465: (1955) 1
S.C.R. 380 is an instance of such legislation.
The policy and purpose may be pointed out in the section conferring the
powers and may even be indicated in the preamble or elsewhere in the Act.

(b) Excessive delegation as a ground for invalidity of statute In dealing with the
challenge the vires of any State on the ground of Excessive delegation it is
necessary to enquire whether - The impugned delegation involves the
delegation of an essential legislative functions or power, and In Vasant lals
case (A.I.R. 1961 S.C. 4). Subba Rao, J. observed as follows;

"The constitution confers a power and imposes a duty on the legislature to

make laws. The essential legislative function is the determination of the
legislative policy and its formulation as a rule of conduct. Obviously it cannot
abdicate its functions in favour of another.

But, in view of the multifarious activities of a welfare State, it (the legislature)

cannot presumably work out all the details to sit the varying aspects of
complex situations. It must necessarily delegate the working out of details to
the executive or any other agency. But there is a danger inherent in such a
process of delegation. An overburdened legislature or one controlled by a
powerful executive may unduly overstep the limits of delegation. It may-

a) not lay down any policy at all;

b) declare its policy in vague and general terms;
c) not set down any standard for the guidance of the executive;
d) confer and arbitrary power to the executive on change or
modified the policy laid down by it without reserving for itself any control over
subordinate legislation.

The self-effacement of legislative power in favour of another agency either in

whole or in part is beyond the permissible limits of delegation.
It is for a Court to hold on a fair, generous and liberal construction of on
impugned statute whether the legislature exceeded such limits.
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