ADMINISTRATIVE LAW
No |
Particulars |
|
UNIT - I |
1 |
|
2 |
Relation with constitution law separation of powers and concepts |
3 |
|
4 |
|
5 |
|
|
UNIT - II |
6 |
|
7 |
|
8 |
|
9 |
|
10 |
|
|
UNIT - III |
11 |
Judicial Power of Administration Nature of procedure |
12 |
|
13 |
Effect of non-compliance with principle of natural justice |
14 |
|
|
UNIT - IV |
15 |
|
16 |
|
17 |
Principles and Procedure |
18 |
Public Law review and private law review of administration action |
19 |
|
20 |
|
21 |
Rights of information |
22 |
Doctrine of Legitimate expectation |
23 |
|
24 |
Doctrine of Proportionality |
|
UNIT - V |
25 |
|
26 |
Commission of Enquiry Ombudsman in India (Lokpal and Lokayukta) |
27 |
|
28 |
|
29 |
Accountability and responsibility |
30 |
Problems of Prospective |
31 |
|
32 |
Control mechanism of Accountability. |
UNIT - I
The most significant and outstanding development of the twentieth century id the rapid growth of administrative law. It does not, however, mean that there was no administrative law before this century. Since many years, in one form or the other, it has been very much in existence. But in this century, the philosophy as to the role and function of the State has undergone a radical change. The governmental functions have multiplied by leaps and bounds. Today, the State is not merely a police State, exercising sovereign functions, but as a progressive democratic State, it seeks to ensure social security and social welfare for the common ma, regulates the industrial relations, exercises control over the production, manufacture and distribution of essential commodities, starts May enterprises. Tries to achieve equality for all and ensures equal pay for equal work.
NATURE AND SCOPE OF ADMINISTRATIVE LAW
Administrative Law deals with the powers of the administrative authorities, the manner in which the powers are exercised and the remedies which are available to the aggrieved persons, when those powers are abused by these authorities.
As discussed above, the administrative process has come to stay and it has to be accepted as a necessary evil in all progressive societies, particularly in a welfare State, where many schemes for the progress of society are prepared and administered by the Government. The execution and implementation of this programmer may adversely affect the rights of individual subjects. As has been rightly observed by Lord Denning: "Properly exercised, the new powers of the executive lead to the Welfare State; but abused they lead to the Totalitarian State".
The scope we can discuss under four limbs:
1) The first limb deals with the composition and powers of organs of administration. This proposition is subject to the qualification stated earlier that the topics falling under public administration are to be excluded. The term 'organs of administration' has been used in a broad sense and includes all kinds of public or administrative authorities.
2) The second limb refers to the limits on the powers on administrative authorities. These limits may either be express or implied.
3) The third limb refers to the procedures used in exercising those powers. The study of Administrative Law of to-day seeks to emphasize not only the extraneous control but also the processes and procedures which the administrative authorities themselves follow in the exercise of their powers.
4) The fourth limb refers to the control of the Administration through judicial and other means.
Under this head would fall judicial as well as extra-judicial means of controlling the Administration, e.g. tribunals, ombudsman, etc. it also includes redressed of individual grievances against the Administration.
GROWTH OF ADMINISTRATIVE LAW
Administrative law has been characterized as the most outstanding legal development of the twentieth century. It does not mean however that there was no administrative law in any country before the twentieth century. Being related to public administration, Administrative law should be deemed to have been in existence in one form or another in every country having some form of Government.
In India itself Administrative law can be traced to the well organized and centralized administration under the Mauryas and Guptas, several centuries before the Chries, following through the administrative system of the Mughals to the administration under the East India Company, the precursor of the modern administrative system.
What the opening statement therefore, signifies is that Administrative Law has grown and developed tremendously, in quantity, quality and relative significance, in the twentieth century, that it has become more articulate and definite as a system in democratic countries that it has assumed a more recognizable form in the present century so much so that it has come to be identified as a branch of public law by itself, distinct and separate from constitutional Law, a fit subject-matter of independent study and investigation in its own right.
The rapid growth of Administrative law in modern times is the direct result of the growth of administrative powers and functions. This development can partly be attributed to the critical international and internal situation creating a sense of insecurity which compels the Government to acquire vast powers to provide for the deface and internal security of the country.
The ruling political gospel of the nineteenth century was laissez faire which manifested itself in the theories of individualism, individual enterprise and self help. The philosophy envisaged 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 interest 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.
In twentieth century social and economic policies of the Government had significant impact on private rights of citizens; e.g. housing employment, planning, education,, health, service, pension, manufacture of goods, etc Traditional legislative and judicial system could not effectively solve these problems. It resulted into increase in delegated legislation as well as tribunalisation. Administrative laws thus become a living subject.
During the Second World War the executive powers tremendously increased. The Defense of India Act, 1939 and the Rules made there under conferred ample powers on the executive to interfere with life, liberty and property of an individual with little of no judicial control over them. In addition to this, the Government issued many orders and ordinances covering several matters by way of administrative instructions.
Since Independence the activities and the function of the Government have further increased. Under the Industrial Disputes Act, 1947, the minimum Wages Act, 1948, the Factories Act 1948 and the Employees state Insurance Act, 1948 important social security measures have been taken for those employed in industries.
The philosophy of a welfare state has been specifically embodied in the constitution of India. In the constitution itself provisions are made to secure to all citizens social economic and political justice equality of status and opportunity. The ownership and control of material resources of the society should be so distributed as best to subserve the common good. The operation of the economic system should not result in the concentration of wealth and means of production. For the implementation of all these objects the state is given power to impose reasonable restrictions even on the Fundamental Right guaranteed by Constitution.
Sometimes, a question is asked as to whether there is any distinction between constitutional law and administrative law. Till recently, the subject of administrative law was dealt with and discussed in the books of constitutional law and no separate and independent treatment was given to it. In many definitions of administrative law, it was included in constitutional law.
Though in essence constitutional law does not differ from administrative law in as much as both are concerned with functions of the Government and both are a part of public law in the modern State and the sources of the both are the same and they are thus inter-related and complementary to each other belonging to one and the same family. Strict demarcation, therefore, is not possible, yet there is a distinction between the two. According to Maitland, while constitutional law deals with structure and the border rules which regulate the function, the details of the functions are left to administrative law.
India has a written Constitution. While constitutional law deals with the general principles relating to the organization and power of the legislature, executive and judiciary and their functions inter se and towards the citizens administrative law is that part of constitutional law which deals in detail with the power and functions of the administrative authorities, including civil services, public departments, local authorities and other statutory bodies. Thus, while constitutional law is concerned with constitutional status of ministers and civil servants, administrative law is concerned with the organization of the services and the proper working of various departments of the Government.
One of the basic principles of the English Constitution id the Rule of Law. This doctrine is accepted in the Constitution of U.S.A, and also in the Constitution of India. The enter basis of Administrative Law is the doctrine of the rule of law. Sir Edward Coke, Chief Justice in James it's reign was the originator of this concept. In a battle against the King he maintained successfully that the King should be under God and the Law, and he established the Supremacy of the Law against the Executive. Dicey developed this theory of Coke in his classic work 'the Law and the Constitution, published in the year 1885.
MEANING
According to Dicey, the rule of law is one is one of the fundamental principles of the English Legal System. In the aforesaid book, he attributed the following three meanings to the said doctrine;
1) Supremacy of law
2) Equality before law
3) Predominance of legal spirit.
1) Supremacy of law:-
Explaining the first principle, Dicey stated that rule of law means the absolute supremacy or predominance of regular law as opposed to the influence of arbitrary power or wide discretionary power. It excludes the existence of arbitrariness, of prerogative or even wide discretionary power in the part of the Government.
2) Equality before law:-
Explaining the second principle of the rule of law, Dicey stated that there must be equality before the law or the equal subjection of all classes to the ordinary law of the land administered by the ordinary law courts. According to him, in England, all persons were subject to one and the same law, and there were no separate tribunals or special courts for officers of the Government and other authorities.
3) Judge-made Constitution:-
Explaining the third principle, Dicey stated that in many countries rights such as right to personal liberty, freedom from arrest, freedom to hold public meetings, etc. are guaranteed by a written Constitution. Thus, Dicey emphasized the role of the courts of law as guarantors of liberty and suggested that t the rights would be secured more adequately if they were enforceable in the courts of law than by mere declaration of those rights in a document, as in the latter case, they can be ignored, curtailed or trampled upon.
DROIT ADMINISTRATIF
Perhaps a few wards on the Droit Administratif as prevails in France may be apposite as reference thereto has been made at several places in the few pages. Droit Administratif is the name given to the Administrative Law prevailing in France. The system is itself the product of the Doctrine of Separation of powers in the sense that judicial power is kept separate from administrative power. Accordingly, unlike the U.S.A the doctrine has meant in France that there should be separation between the Courts and the Administration. Thus the system of Droit Administratif in France has resulted in non-interference by the courts in the working of administrative authorities.
France has developed a system of administrative tribunal's distinct form the ordinary courts which have no jurisdiction on the Administration. A person seeking any redress against the Administration has to go to an administrative court and not to an ordinary court.
The most significant aspect of Droit Administratif is that the ordinary courts exercise no control over the Administration which is supervised instead by administrative tribunals. Although called administrative tribunals these are independe3ndt bodies. All tribunals are subject to the supervision of Conseil d'Etat posses which acts as the court of appeal from all administrative tribunals.
The most significant aspect of Droit Administratif is that the ordinary courts exercise no control over the Administrative tribunals, theses are independent bodies. All tribunals are subject to the supervision of C0onseil d'Etat which acts as the court of appeal form all administrative tribunals.
The Conseil d'Etat has been characterized as the bulwark of civil liberties, and also the guardian of administrative morality. The system has come to be regarded as providing an effective protection to individual rights against the despotism of public administration. The judges of conseil d'Etat posses a high degree of administrative expertise and so they are better able to control the Administration that the ordinary courts where the judges are general lists and lack expertise in the administrative field. Accordingly, judicial control of administrative action is peripheral and lacks depth. The most outstanding contribution made by France to legal science has been separate system of administrative jurisdiction and administrative law created by conseil d'eata. Most European countries like Belgium Netherlands, Italy, Spain, Portugal and Greece follow the French practice of double jurisdiction.
The Indian Administrative Law while basically common-law oriented as the Administration is subject to judicial has also imbibed some features of Droit Administratif as is evident from the increasing tribunalisation of the decision making process. Further two doctrines of Droit Administratif, viz., legitimate expectation and proportionality have also found acceptance, to some extent, in Indian Administrative Law.
SEPARATION OF POWER AND DEVELOPMENTS IN THE UNITED STATES
If the "rule of law" hampered the recognition of Administrative law in Britain for a awhile the doctrine of Separation of power had an intimate impact on the growth of administrative process and Administrative law in the United States. It has been characterized as the "principal doctrinal barrier" to the development of Administrative Law in the U.S.A.
The doctrine of Separation of Powers is implicit in the American Constitution. It emphasizes the mutual exclusives of the three organ of the government. According to this is doctrine, the legislature or judicial power; and the judiciary cannot exercise the other two powers.
The form of Government in the U.S.A., characterized as the Presidential, is based on the theory that there should be separation between the executive ad the legislature. This is different from the system prevailing in Britain or India was the parliamentary form of Government operates and which is based on co-ordination of the executive and the legislature.
Of course, the doctrine of separation of powers does not apply rigorously even in the United States, and some exceptions thereto are recognized in the Constitution itself. For instance, a bill passed by the Congress may be vetoed by the President, and to this extent, the President may be aid to be exercising legislative functions. Again, certain appointments of high officials are to be approved by the Senate, and also the treaties made by the President so do not take effect until they are approved by the Senate; to this extent, the Senate may be said to be exercising executive functions. This exercise of some functions of one organ by the other organ is justified on the basis of checks and balances, i.e. the functioning of one organ is to be checked in some measure by the other.
The doctrine of Separation has influenced, and has itself been influence by, the growth of Administrative Law in the U.S.A. in the face of new demands on the Government to solve many complex socio-economic problems of the modern society; trine of "separation" has been influenced and conditioned to some extent by this doctrine.
The strict Separation theory was dented, to some extent, when the courts conceded that legislative power could be confrere on the executive and thus, introduced the system of delegated legislation in the U.S.A. but, because of the Separation Doctrine, courts have laid down that the congress cannot confer an unlimited amount of legislative power on tan administrative organ, and that it must itself lay down the policy which the administration is to follow while making the rules. But the non development of legislative control over delegated legislation in the United States through o Legislative committee on the lines in Britain or India is partly due to the constitution doctrine of Separation of Powers.
A further encroachment was made oh the Separation theory when conferment of power of adjudication on the executive came to be recognized, and a few administrative tribunals. like the Tax Court grew in the country.
A much more serious dent in the Separation theory was made with the development of independent statutory commissions to handle and regulate new areas of activities, endowed with the triple functions of legislation, administration and adjudication along with powers of investigation and prosecution. These commissions are to a large extent independent of the e executive. For long, it continued to be debated whether such bodies were constitutional or not. But as such bodies have been in existence for long, and new bodies are being created from time to time, one would perhaps accept them as a modern fact of life. The U.S Supreme Court has never held the vesting of all the three kinds of powers in one agency as unconstitutional.
The aim of the doctrine of Separation of Powers is to guard against tyrannical and arbitrary powers of the state. The rationale underlying the doctrine has been that if all power is consternated in one and the same organ or person, there would arise the danger that it may enact tyrannical laws, execute them in a despotic manner, and interpret them in an arbitrary fashion without any external control.
Though, in the face of the complex socio-economic problem demanding solution in a modern welfare state, it may no longer be possible to apply the Separation theory strictly, nevertheless, it has not become completely redundant and its chief value lies in emphasizing that it is essential to develop adequate checks and balances to prevent administrative arbitrariness. Thus, it has been, stated about the doctrine: "Its object is the preservation of political safeguards against the capricious exercise of power; and incidentally, lays down the broad lines of an efficient division of functions. Its logic is the logic of polarity rather than strict classification the great end of the theory is, by dispersing in some measure the centers of authority, to prevent absolutism.
By force of circumstances, Administrative Law has inevitably grown in the United States, but the Separation doctrine did not generate an attitude of indifference towards it, as happened in Britain under the spell of the Dicean concept of "rule of law". In the U.S.A the attitude was that of examination and criticism of the advisability and propriety of the new development.
Many people criticized the growth of administrative process as doing violence to the concept of Separation of Powers there was an insistent demand that a full-fledged investigation be carried out in the new trends and that due safeguards against abuse of powers be devised. As a result of this, the U.S Attorney-General appointed a committee to review the entire administrative process and to recommend improvements therein.
This committee made its report in 1941. it conducted a thorough probe into the administrative procedures followed by the various agencies of the Federal Government and came out with a number of recommendations to reduce the chances of abuse of power. Because of the Second World War no immediate progress could be made to give legal effect to these recommendations, but after sometimes the most tangible result was the enactment of the Administrative Procedure Act, 1946.
EFFECT
The doctrine of separation of powers as propounded by Montesquieu had tremendous impact on the development of administrative law and functioning of Governments. It was appreciated by English and American jurists and accepted by politicians. In his book "commentaries on the laws of England", published in 1765, Blackstone obsetrved that if legislative, executive and judicial, functions were given to one man, there was an end of personal liberty. Madison also proclaimed: "The accumulation of all powers, legislative, executive and judicial, in the same hands, whether of one, a few or many and whether hereditary, self-appointed or elective may justly be pronounced the very definition of tyranny." The Constituent assembly of France declared in 1789 that there would be nothing like a Constitution in the country where the doctrine of separation of powers was not accepted.
DEFECTS
Though, theoretically, the doctrine of separation powers was very sound many defects surfaced when it was sought of be applied in real life situations. Mainly, the following were found in this doctrine:
a) Historically speaking, the theory was incorrect. There was no separation of powers under the British Constitution. At no point of time, this doctrine was adopted in England.
As Prof .Ullamn says: "England was not the classic home of separation of powers." Donoughmore Committee also observed: "in the British Constitution there is no such thing as the absolute separation of the legislative, executive and judicial powers.". it is said: "Montesquieu completely misconstrued what he saw".
b) This doctrine is based on the assumption that the three functions of the Government, viz, legislative, executive and judicial are independent of distinguishable from one another. But in fact, it is not so. There are no watertight compartments. It is not easy to draw a demarcating line between own power and another with mathematical precision.
As Paton stated "it is extraordinary difficult to define precisely each particular power." President Woodrow rightly said: "the trouble with the theory is that Government is not a machine, but a living thing. No living thing can have its organs offset against each other as checks, and live. On the contrary, its life is dependent upon their quick cooperation, their ready response to the commands of instinct or intelligence, their amicable community of purpose. Their cooperation s indispensable, their warfare fatal'
According to Friedmann and Benjafield, 'the truth is that each of the three functions of the Government contains elements of the other two and that any rigid attempt to define and separate those functions must either fail or cause serious inefficiency in Government.
c) It is impossible to take certain actions if this doctrine is accepted in its entirety. Thus, if the legislature can only legislate, then it cannot punish anyone, committing a breach of its privilege; nor can it delegate any legislative function even though it does not know the details of the subject-matte of the legislation and the executive authority has expertise over it; nor could the courts frame rules of procedure to be adopted by them for the disposal of cases. Separation of Powers, thus. Can only be relative and not absolute.
d) Modern State is a welfare State and it ahs to solve complex socio-economic problem and in this state of affairs also, it is not possible to stick is this doctrine. Justice Frankfurter said; "Enforcement of a rigid conception of separation of power is a theoretical absurdity and practical impossibility.
e) The modern interpretation of the doctrine of separation of Powers means that discretion must be drawn between 'essential' and 'incidental' powers and one organ of the Government cannot usurp or encroach upon the essential functions belonging to another organ, but may exercise some incidental functions thereof.
f) Fundamental object behind Montesquieu's doctrine was liberty and freedom of an individual; abut that cannot be achieved by mechanical division of functions and powers. In England, theory of Separation of Powers is not accepted and yet it is known for the protection of individual liberty. For freedom and liberty, it is necessity that there should be Rule of Law and impartial and independent judiciary and eternal vigilance on the part of the subjects.
SEPARATION OF POWERS IN INDIA
On a casual glance at the provisions of the Constitution of India, one may be inclined to say that the doctrine of Separation of Powers is accepted in India. Under the Indian Constitution, executive powers are with the President, legislative powers with Parliament and judicial powers with Judiciary. The President holds his office for a fixed period. His functions and powers are enumerated in the Constitution itself. Parliament is competent to make any law subject to the provisions of the Constitution and there is no other limitation on its legislative power. It can amend the law prospectively or even retrospectively but it cannot declare a judgment delivered by a competent court void or of no effect. Parliament has also inherited all the powers, privileges and immunities of the British House of Commons. Similarly, the judiciary is independent in its field and there can be no interference with its judicial functions either by the Executive or by the legislature. The Supreme Court and High Courts are given the power of judicial review and they can declare any law passed by Parliament or Legislature ultra vires or unconstitutional.
In I.C. Golak Nath V. State of Punjab, Subba Rao, C.J. observed
"The Constitution brings into existence different constitutional entities, namely, the Union, the State, and the Union territories. It creates three major instruments of power, namely, the Legislature, the expects them to exercise their respective powers without overstepping their limits. They should function within the spheres allotted to them.
There are three organs of Government
1) Legislature
2) Executive
3) Judiciary
These three organs essentially perform three classes of government functions
1) Legislative
2) Executive or Administrative
3) Judicial
The function of the legislature is to enact the law; the executive is to administer the law and the judiciary is to interpret the law and to declare what the law is.
1) LEGISLATIVE FUNCTIONS
Legislative functions of the executive consists of making rules, regulations, bye-laws, etc. it is, no doubt, true that any attempt to draw a distinct line between legislative and administrative functions is difficult in theory and impossible in practice. Though difficult, it is necessary that the line must be drawn as different legal rights and consequences ensue.
In the leading case of Bates v. Lord Hailsham, Megarry, J. observed that "the rules of natural justice do not run in the sphere of legislation, primary or delegated". Wade also said; "There is no right to be heard before the making of legislation, whether primary or delegate, unless it is provided by statute".
Fixation of price, declaration of a place to be a market yard, imposition of tax, establishment of Municipal Corporation under the statutory provision, extension of limits of a town area committee, etc. are held to be legislative functions.
2) JUDICIAL FUNCTIONS
According to the Committee on Ministers' Powers, a pure judicial function presupposes an existing dispute between two or more parties and it involves four requisites:-
a) The presentation of their case by the parties to the dispute
b) If the dispute is a question of fact, the ascertainment of fact by means of evidence adduced by the parties to the dispute and often with the assistance of argument by or on behalf of the parties, on evidence;
c) If the dispute between them is a question of law, the submission of legal argument by the parties
d) A decision which deposes of the whole matter by finding upon the facts in dispute and 'an application of the land to the facts as found, including, here required, a ruling upon any disputed question of law.
Thus, these elements are present, the decision is judicial decision even though it might have been made by any authority other than a court, e.g. by a Minister, Board, Executive Authority, Administrative Officer or Administrative Tribunal.
JUDICAL AND QUASI-JUDICAL FUNCTION
DISTINCTION
A quasi-judicial function differs from a purely judicial function in the following respects;
i) A quasi-judicial authority has come of the trappings of a court, but not all of the; nevertheless there is an obligation to act judicially.
ii) A leis inter parts is an essential characteristic of a judicial function, but this may not be true of a quasi-judicial function.
iii) A court is bound by the rules of evidence ad procedure while a quasi- judicial authority is not.
iv) While a court is bound by precedents, a quasi-judicial authority is not
v) A court cannot be a judge in its own cause, while an administrative vested with quasi-judicial powers may be a party to the controversy but can still decide it.
Thus, administrative functions are those functions which are neither legislative nor judicial in character. Generally, the following ingredients are present in administrative functions:
1) An administrative order is generally based on government policy or expediency.
2) In administrative decisions, there is no obligation to adopt a judicial approach to the questions to be decided, and the decisions are usually subjective rather than objective.
3) An administrative authority is not bound by the rules of evidence and procedure unless the relevant statute specifically imposes such an obligation.
4) An administrative authority can take a decision in exercise of a statutory power or even in the absence of a statutory provision, provided such decision or act does not contravene provision of any law.
5) Administrative functions may be delegated and sub-delegated unless there is a specific bar or prohibition in the statute.
6) While taking a decision and administrative authority may not only consider the evidence adduced by the parties to the dispute, but may also use its discretion.
7) An administrative authority is not always bound by the principles of natural justice unless the statue casts such duty on the authority, either expressly or by necessary implication or it is required to act judicially or fairly.
8) An administrative order may be held to be invalid on the ground of unreasonableness.
9) An administrative action will not become a quasi-judicial action merely because it has to be performed after forming an opinion as to the existence of any objective fact.
10) The prerogative writs of certiorari and prohibition are not always available against administrative actions.
ADMINSTATIVE DIRECTIONS
In addition to rules and other forms of delegated legislation, an increasing modern trend is the issuing of direction of instructions by the Administration. Directions are issued for a variety of purposes. Administrative authorities churn out directions through letters, circulars, order, memoranda, pamphlets; public notices, and press notes etc. at times, directions may even be published in the Government Gazette.
DIRECIONS V. RULES
Superficially, a "direction" of a general nature may resemble of rule or delegated legislation, in form, as both are of general applicability. But, the two differ basically in concept and essence. To underline the difference between directions and delegated legislation, at times, designated as "administrative quasi-law" or "administrative quasi-legislation'.
Delegated legislation can be issued only when the authority concerned has statutory power to do so. This aspect has been discussed in the previous Chapter. But statutory power I s not necessary for issuing detections. Generally, directions are issued under the general administrative power of the Government conferred by Arts. 73 and 162 of the Constitution. According to Art. 73 of the Constitution, the executive power of the Union extends to the matters with respect to which Parliament has power to make laws. Similarly, according to Art. 162, the executive power of the State extends to the matters with respect to which the State Legislature has power to make laws. These provisions do not as such confer any legislative power. These provisions describe the extent and scope of executive power of the Central and State Governments. Accordingly, what that Government does under Art. 73/162 cannot be regarded as a rule, as rules can only be issued by the Administration under legislature power conferred on it by a statutory or constitutional provision.
The basic distinguishing feature between a direction and delegated legislation is this; while delegated legislations binding on both, the Administration and the individual, and is enforceable through a court of law at the instance of either the individual or the Administration, a direction, generally speaking, is not so binding and enforceable. Barring certain exceptions, a direction does not confer any enforceable right on an individual. Or impose an obligation on the Administration or the individual. Even if a direction is misapplied or ignored by the Administration, the affected individual can hardly claim a remedy through a court of law against the Administration. On a parity of reasoning, a direction cannot jeopardize a right of an individual and the Administration cannot enforce it against him.
IDENTIFICATION OF DIRECTIONS
Government is continuously engaged in the process of "legislation" in the sense of laying down general norms of public behavior or administrative behavior. From our discussion so far it is clear that Government "legislation" may be classified as either delegated legislation or directions. As this differentiation leads to significant result for an administrative lawyer, it becomes very important to identify whether a piece of government "legislation" is a direction or a rule.
This may, at times, prove to be a complicated exercise as no definitive test distinguishing directions from rules has yet been laid down. I doing so, at the threshold, an administrative lawyer may be faced with a problem arising from terminological inexactitude. Expressions like "code", "rules", "regulations" which are appropriate for being used in the area of delegated legislation are also use haphazardly and indiscriminately for directions, and, therefore, the label which is appended to a particular piece of Government "legislation" is not always determinative of its true character.
In a number of cases, though the provisions in question were called "rules", yet the same were judicially characterized as being "administrative instructions". In State of Uttar Pradesh v. Kishori lal, the U.P Excise Rules were reared as administrative instructions as they were never published in the Gazette as required by the statute. A few other cases of so-called rules being held as administrative directions are noted below:
i) The Madhya Pradesh pre-medical Examination Rules 1972 regulating admission to medical
colleges;
ii) The Karnataka medical colleges Rules 1978
iii) Conduct and Discipline of the Employees of Aided Educational Institutions Rules.
iv) The provisions of the Education Grant-in-aid ode of Maharashtra.
v) Paragraph ;;516-B of the Punjab jail manual laying down ;provisions for commutation of
sentences has been held to be an administrative direction.
Usually a rule is made by the Administration in pursuance of the statutory rule making power conferred on it by a statutory or a constitution provision. Directions on the other hand, are issued by the Administration in the exercise of its general administrative power conferred by Art 73 of the constitution on the central government or Art 162 on the state government. These constitution provisions describe the extent and scope of the executive power; of the central or the state government. These provisions do not confer any legislative power. Art 73 or 162 does not confer any rule making power as such on the concerned government and therefore, what a government does under any of these provisions cannot be regarded as a rule, statutory or a constitutional provision.
In Nivedita upholding a state directive on admission of scheduled castes and scheduled tribes candidates to medical colleges the Supreme Court said that there were no law or rules covering the field regulating admission of candidates of medical colleges, and as the matter fell within its administrative power, the state would be competent to pass executive orders in this regard.
A Statute may; delegate to the Administration power to promulgate delegated legislation. But the Administration may yet seek to issue direction under its general administrative power rather than rules under the statutory power.
Service Matters
Art. 309 of the constitution empower the president, or the governor as the case may be to make rules too regulate the recruitment and conditions of service of persons appointed to the public services and posts in connection with the affairs of the union or the state. But many a time, government issues directions rather than rules to regulate service matters. These directions are issued by the central government under Art 73 and by a state government under Art 162 of the constitution.
The service rules made by the Government did not provide for any reservation of posts for scheduled castes and scheduled tribes. In fact the relevant service rules were silent on the subject of reservation. The Supreme Court therefore ruled that the government could issue directions providing for reservations the court observed. The administrative orders cannot be issued in contravention of the statutory rules but it could be issued to supplement the statutory rules. In the instant case the administrative direction issued to make reservation for S/C and S/T was held validly issued as the relevant rules were silent on the subject of reservations.
Once the rules have been made under Art 309 administrative directions will have no force in relation to the matters covered by the rules. Thus, when a service rule provides for merit alone as the basis of promotion to a higher post, a direction providing for seniority cum-merit as the basis for the purpose was held to be inconsistent with the rule.
IN O.P. Lather v. Satish Kumar Kakkar, the Supreme Court has accepted the position that even when service rules have been made under Art.309 direction can still be issued by the Government to clarify or supplement the existing rules. There thus exist an amalgam of rules and directions to lay down service conditions of Government servants. ; Directions and rules form an intertwined web in the area of serviced jurisprudence. In this area, directions and rules inter play with each other. Questions often arise whether a direction is supplementary to a rule or is inconsistent therewith. The courts are often called upon to decide these questions.
In I.N Saxena v. Madhya Pradesh, the question arose whether a memorandum issued by the government of Madhya Pradesh fixing the age of retirement of civil servants should be characterized as a rule as having been issued under Art 309 or only a direction as having been issued under its general administrative power.
The court ruled that it was merely an executive direction and not a rule citing the following considerations:
i) The memorandum in question had not been publisher in the gazette
ii) It was in the form of a letter issued by the government to the collectors
iii) Its form showed that the government was conveying an executive decision to the collectors to be
followed by them.
Even when the Administration has power to make rules as well as directions, it may prefer to issue directions instead of the rules. In V. T Khanzode v. Reserve Bank of India, the reserve bank of India had statutory power to issue regulations, Nevertheless, the staff regulations issued by the reserve bank of India through an administrative and office order fixing the basis of seniority of its employee were held to be merely administrative instructions and not statutory regulations
The Supreme Court recognized that the bank could issue such regulations under its general regulation making power under s. 58 of the Reserve Bank of India Act. Such regulations could however be made with the previous sanction of the central government and they were required to be laid before each house of parliament. The regulations in question, according to the court were made not under section 58 but under the administrative power of the bank given to it by s. 7(2) of the Act for the following reasons:
Firstly, the regulations were not made with the previous sanction of the government.
Secondly, while issuing the regulations, the source of power under which they were made was not mentioned.
Presumably the bank issued directions and not statutory regulations because of flexibility in the sense that there was no need to take previous consent of the government and no need to lay them before parliament and directions could be amended from time to time without following these formalities.
In Kumari Regina v. St. A.H.E schools the so-called rules laying down certain norms for recognition of schools were held to be merely administrative instructions for the following reasons:
i) The rules under the relevant statute could be made for carrying out the purposes of the act. That was the condition precedent, but the so-called rules fin question could be related to no purpose or provision of the concerned statute;
ii) The government did not claim to have made them under its statutory power;
iii) Under the Act, pre-publication of the rules was necessary but the so-called rules in question had not been pre-published.
ENFORCEABILITY OF DIRECTIONS
The question whether a direction is legally enforceable or not keeps arising before the courts form time to time. The basic rule is that while rules made under statutory power are binding a non-statutory direction is not enforceable in; court of law against either an individual or the Administration. Direction does not fall in; the category of legislation direct or subordinate. The rue of non-enforceability of directions is quite well established
The principle of non enforceability of directions is exemplified by J.R. Raghupathy v. State of Andhra Pradesh the state government had statutory power to decide location of mandal headquarters. The government asked the collectors to send proposals for this purpose for consideration of the government. The government issued certain guidelines to the collectors to keep in view while making their proposal.
In union of India v. S.L Abbas, it was held that executive instructions for transfer of government servant are in the nature of the guidelines and do not confer any legally enforceable right.
Exceptions to the rule on non-enforceability
However the rule of non-enforceability of directions is not an absolute principle. As no legal principle is immutable, and every principle admits of some exceptions, so is the case regarding the rule of non-enforceability of general directions? Accordingly, the courts have enforced some directions on some grounds and in some situations. The difficulty however is that no clear principle emerges from the case law as to when a direction may be held binding. The judicial approach on this question is pragmatic and ad hoc in nature and depends on the specific fact situation of the case.
Need for Direction
The technique of issuing directions is and integral part of the modern administrative process. The administration resorts to directions to serve a variety of purposes. Mostly the purpose of directions is to inform the people of the policy decisions which government takes from time to time in various areas and which may affect the public.
As we shall see later, it is not always necessary for the government to make ka law to enforce each to-day government operates without any statutory powers. The government doesn't and any statutory power to do many things it usually does. In area the government exercises a general administration so long as it does not infringe a constitutional or legal provision or any person's rights,. The extent of the modern Government wishes to lay down any general norms in its administrative area, it has to take recovers to directions; it cannot make rules in this area in the absence of any statutory legislative power.
Directions are more flexible, and can be issued much more expeditiously and with much less formality than rules. The Administration resorts to directions to serve a variety of purposes. By and large, directions are used to inform the people of the people of the policy decision taken by the Government from time to time in various areas.
Directions are used to lay down procedures for various purposes to be followed by the Administration or the public. Directions are also used to fill in the gaps in the area of wide discretionary powers conferred on the Administration. The Government may announce in advance as to how it seeks to exercise its powers under a particular statutory provision.
Directions are a part and parcel of the internal administrative procedure of a Government department. When a number of officials are engage in executing a law and taking decisions there under, directions may serve the purpose of laying down some criteria to be followed by these officials in discharging their functions so that there may be some uniformity of approach in disposing of similar cases by the various officials. The Government may lay down through directions some norms, general principles, practices and policies within the area of its operation under a statute for the guidance of officials and convenience of the public.
UNIT II
A trend very much in vogue at the present time in all democratic countries Is that only a relatively small part of the total legislative output emanates directly from the Legislature. The bulk of the legislation is promulgated by the executive as a delegate of the legislature, and this is known as delegated legislation. Salmond defines the expression Delegated legislation as that which proceeds form any authority other than sovereign power and is therefore dependent for its continued existence and validity on some superior of supreme authority.
Subordinate Legislation and Supreme legislation: Distinction.
Whereas an Act, enactment of a statute is made by a legislature subordinate or delegated legislation is created by an executive or Administrative Authority. Both are the products of legislative function of the state having the force of law in their application to subjects. But there is distinction between the two.
As salmond states an Act of legislature proceeds from supreme power of the state and has no rival in the field. It also does not derive its authority from any other organ of the state. Subordinate legislation on the other hand, is framed by the executive and owes its existence, continuance and validity on superior or supreme authority i.e. legislature. An executive can make subordinate legislation only if such power is conferred on it by competent legislature, not otherwise. Again subordinate law making body is bound by the terms of its delegated or derivative authority.
In Chief settlement commr v. Om prakash, the supreme court stated is essential to emphasize that under our constitutional system the authority to make the law is vested in the parliament and the state legislatures and other law making bodies and whatever legislative power the executive administration possesses must be derived directly from the delegation of the legislation and exercised validly only within the limits prescribed. The notion of inherent or autonomous law making power in the executive administration is a notion that must be emphatically rejected.
Where parliament is supreme and sovereign, it is omnipotent and its legislative power is unlimited, e.g. British parliament. There it has been said; parliament can do every thing, but make a man a woman and a woman, a man. A statute enacted by parliament is not open to judicial review and cannot be declared ultra vires or unconstitutional by a court of law, though in India a law made by parliament is open; to challenge on the ground that violates provisions of the constitution. Delegated legislation on the other hand, has no such authority and it can challenge not only as ultra vires being unconstitutional but also as inconsistent with the parent, Act, i.e. the Act under which it was made. Subordinate legislation does not carry the same degree of immunity that is enjoyed by supreme legislation Subordination legislation can be questioned on any of the grounds on which plenary legislation can be challenged. But in addition, it may also be challenged on the ground that it does not conform to the statute under which it is made or is inconsistent with any other statute. That is because every subordinate legislation must yield to the plenary legislation.
Many factors are responsible for the rapid growth of delegated legislation in every modern democratic state. The traditional theory of laissez faire has been given up by every state and the old police state has now become a welfare state. Because of this radical change in the philosophy as to the role to be played by the state its functions have increased. Consequently, delegated legislation has become essential and inevitable
In the opinion of the committee, the factors responsible for the growth of delegated legislation are:
a) Pressure upon parliamentary time
As a result of the expanding horizons of state activity, the bulk of legislation is so great that it is not possible for the legislature to devote sufficing time to discuss all the matters din detail. Therefore, legislature formulates the general policy- the skeleton and empowers the executive to fill in the details thus giving flesh and blood to the skeleton so that it may live by issuing necessary rules, regulation bye-laws, etc. In the words of? Sir Cecil car delegated legislation is a growing child called upon to relieve the parent of the strain of overwork and capable of attending to minor matters, while the parent manages the main business. If the 525 parliamentarians are to focus on every minuscule legislative detail leaving nothing to subordinate agencies the annual output may be both unsatisfactory and negligible.
b) Technicality
Sometimes the subject-matter on which on which legislation is required is so technical in nature that the legislator, being himself a common man, cannot be expected to appreciate and legislate on the same, and the assistance of experts may be required. Members of parliament may be the best politicians but they are not experts to deal with highly technical matters which are required to be handled by experts. Here the legislative power may be conferred on experts to deal with the technical problems, e.g. gas, atomic energy, drugs, electricity, etc.
c) Flexibility
At the time of passing any legislative enactment, it is impossible to foresee all the contingencies, and some provision is required to be made for this unforeseen situation demanding exigent action. A legislative amendment is a slow and cumbersome process, but by the device of delegated legislation, the executive can meet the situation expeditiously e.g. bank rate police regulations, export and import foreign exchange, etc. For that purpose, in many statutes a removal of difficulty clause is found empowering the administration to overcome difficulties by exercising delegated power.
d) Experiment
The practice of delegated legislation enables the executive to experiment. This method permits rapid utilization of experience and implementation of necessary changes in application of the provisions in the light of such experience, e.g. in road traffic matters, an experiment may be conducted and din the light of its application necessary changes could be made. Delegated legislation thus allows employment and application of past experience.
e) Emergency
In times of emergency quick action is required to be taken. The legislative process is not equipped to provide for urgent solution to meet the situation. Delegated legislation is the only convenient indeed the only possible remedy. Therefore in times of ware and other national emergencies such as aggression, break of law and order, strike, bandh etc, the executive is vested with special and extremely wide power to deal with the situation. There was substantial growth of delegated legislation during toe two World Wars. Similarly in situation of epidemics, floods inflation, economic depression, etc. Immediate remedial actions are necessary which may not be possible by lengthy legislative process and delegated legislation is the only convenient remedy.
f) Complexity of modern administration
The complexity of modern administration and the expansion of the functions of the state to the economic and social sphere have rendered it necessary to resort to new forms of legislation and to give wide powers to various authorities on suitable occasions. By resorting to traditional legislative process, the entire object may be frustrated by vested interests and the goal of control and regulation over private trade and business may not be achieved at all.
DELEGATED LEGISLATION IN INDIA
The discussion can be divided din to two stages-
a) Pre-constitution period:
Rv. Burah is considered to the leading authority on the subject. By Act XXII of 1869 the area of Garro Hills was removed from the jurisdiction of civil and criminal courts, and by section 9, the lieutenant Governor was empowered to extend mutatis mutandis al or any of the provisions of the Act applicable to Khasi, Jaintia and Naga Hills an the Garro Hills and to fix the date of such application. By a notification dated October 14, 1871, the lieutenant Governor extended all the provisions of the Act to the District of Khasi and Jaintia Hills. The appellants, who were convicted of murder and sentenced to death, challenged the notification.
The High court of Calcutta by a majority upheld the contention of the appellants and held that section 9 of the Act was ultra vires the powers of the Indian legislature. According to the court, the Indian legislature was a delegate of the Imperial parliament and therefore, further delegation was not permissible.
On appeal, the Privy Council reversed the decision of the Calcutta high court. It held that the Indian legislature was not an agent or delegate of the imperial parliament and it had plenary powers of legislation as those of the Imperial parliament itself. It agreed that the governor General in council could not, by legislation, create a new legislative power in India not created or authorized by the council Act. But in fact it was not done. It was only a case of conditional legislation, as the Governor was not authorized to pass new laws, but merely to extend the provisions of the Act enacted by the competent legislature upon fulfillment of certain conditions.
b) Post-constitution period
The question of permissible limits of delegation of legislative power became important in Independent India. The constitution of India is neutral on this point as there is nothing in the Indian constitution either by way of expressly prohibiting, or , permitting the legislature to delegate its legislative power to the Administration. Therefore if the courts had to find any restrictions on the legislature in the matter of delegation, it had to be on; the basis of some general theories and principles of constitutional law, and not on the basis of any specific provision in the constitution. The Supreme Court of India was faced with all these questions in the famous case of
IN RE DELHI LAWS ACT it was the first leading case decided by the Supreme Court on delegated legislation after the constitution came into force. A reference was made to the Supreme Court by the president of India under Article 143 of the constitution in the following circumstances:
The central government was authorized by section 2 of the part C" states Act 1950 to extend to any part "C" state with such modification and restrictions as if thinks fit any enactment6 in force in a Part "A" state; and while doing so it could repeal or amend any corresponding law which might be in force in the Part "C" state
The Supreme court was called upon to decide the legality of the aforesaid provision. All the seven judges who heard the reference gave their separate opinions exhibiting a cleavage of judicial opinion on the question of limits to which the legislature in India could be permitted to two limitations-
i) The executive cannot be authorized to repeal a law in force and thus, the provision which empowered the central government to repeal a law already in force fin Part "C" state was bad,
ii) By exercising the power of modification, the legislative policy should not be changed and thus, before applying any law to the Part "C" state, the central Government cannot change the legislative policy.
The importance of the Delhi Laws Act cannot be under estimated inasmuch as on the one hand, it permitted delegation of legislative power by the legislature to the executive, while on the other hand, it demarcated the extent of such permissible delegation; of power by the legislature.
Principle formulated in Delhi Laws Act - As noted above all the seven judges gave their separate opinions. Many a time a question is asked whether any principle was formulated by the majority opinion. The answer is not simple as there is difference of opinion amongst jurists on this point.
According to patanjalij sastri C.J. Undoubtedly certain definite conclusions were reached by the majority of the judges it is difficult to say that any particular principle was laid down, which can be of assistance in the determination of other cases.
On the other hand, Bose J. and Basu observed that in spite of separate opinions, certain principles have been laid down by the Supreme court in Delhi Laws Act A First, ;keeping the exigencies of the modern government in view, parliament and state legislatures in India need to delegate legislative power it they are to be fable to face the multitudinous problems facing the country for it is neither practicable nor feasible to expect that each of the legislative bodies could turn out complete and comprehensive legislation on all subjects sought to be legislated upon. Second since the legislatures derive their powers from the written constitution which creates them, they could not allowed the same freedom as the British parliament in the matter of delegation some limits should be set on their capacity to delegate.
DOCTRINE OF EXCESSIVE DELEGATION
In course of time through a series of decisions, the Supreme Court has confirmed the principle that the legislature can delegate its legislative power subject to its laying down the policy. The legislature must declare the policy of the law, lay down legal principles and provide standards for the guidance of the delegate to promulgated delegated legislation, otherwise the law will be bad on account of excessive delegation.
The India Legislature cannot delegate unrestrained unqualified and unqualified legislative power on an administrative body. The legislature can delegate legislative power subject to the condition of laying down principles, standards and policy subject to which the delegate is to exercise its delegated legislative power. In case the legislature fails to do so, the law made by it delegating, legislative power would be invalid.
In applying the test of excessive delegation apart from considering the breadth of the discretion conferred by an Act to promulgate delegated legislation the courts also examine the procedural safeguards contained in the Act against misuse of power as for example, lying of the ruled before the legislature, consultation with the interests affect. A completely unlimited blanket power where there is neither any guidance to the delegate, not any procedural safeguards against improper exercise of power by the delegate can be held invalid as excessive delegation.
In H.R. Banthia v. Union of India Section 5(2)(b) of gold (control) Act, 1968 empowered the Gold Administrator so far as it appeared to him to be necessary or expedient for carrying out the purposes of the Act, to regulate the manufacture, distribution use disposal, consumption, etc of gold. The Supreme Court declared the provision invalid because it was very wide and suffered from the vice of excessive delegation. The court also took into consideration the fact that under section 144 of the Act power of delegated legislation was also conferred on the central government. But while the rules made by the government were required to be laid before each house of parliament, there was no such obligation in respect of the rules made by the administrator under section 5(d2)(b). The power of the Administrator was not subject to any procedural safeguard while that of the government was, and thus the power conferred on the former was even broader than that conferred on the Government.
In a large number of cases the courts have considered the validity of various delegating provisions with reference to the doctrine of excessive delegation. Some of these cases are noted below. The cases have been classified from the point of view of the nature of the power conferred under the following broad heads:
i) Skeleton legislation
ii) Power of inclusion and exclusion;
iii) Power of modification of the statute and
iv) Removal of difficulties;
v) Power to impose tax.
i) Skeleton Legislation
In Bhatnagars and Co v.Union of India, Section 3 (1) (a) of the Imports and exports Act 1947 authorizing the central Government to prohibit or strict the import or export of goods of any specified description by order. The statute is skeletal and gives no indication as to what considerations and policies are to be kept in view by the Government in controlling Imports and exports. The whole regulatory process over import and export of goods has been developed by the administration through delegated legislation under this the underlying policy was to be found in the preceding statute, the Defense of India Act 1939 whose provisions the statute in question purported to continue.
In Makhan Singh v. State of Punjab the Supreme Court upheld, against the attack of excessive delegation section 3 of the Defence of India Act 1962 Section 3 empowered the central government to make rules as it appears expedient to it, for defence of India and Maintenance of public order and safety.
The All India Services Act 1951 is an extremely brief statute of four sections of which the key provision is Section 3 which authorizes the central Government to make rules to regulate conditions of service in the all India Services. Pending the making of the rules under the Act, the rules existing on the date the law was enacted, were to be deemed to be the rules made under the Act.
ii) Power of Exclusion and Inclusion
A common legislative practice is to confer power on the Government to bring individuals, bodies or commodities within, or to exempt them from the purview of a statute, several formula are in vogue for the purpose.
A usual legislative formula is to say that the Act applies to the items mentioned in the schedule annexed by Government has power to alter the schedule by adding thereto or removing therefore some items. Thus the range of operation of the Act can be expanded or reduced by making alterations in the schedule through delegated legislation. To some extent, this provision involves delegation of power ok modify the parent Act, but invariably such a provision has been upheld as valid.
The Minimum wages Act 1948 has been enacted as stated in its preamble to provide for fixing minimum wage in certain employment. The Act applies to employment mentioned in the schedule, but government is giver power to add any other employment thereto and thus to extend the Act to that employment.
There Act lays down no norms on which government may exercise it s power to add any employment to the schedule. Nevertheless, in Edward Mills Co. v. State of Ajmer the Supreme Court upheld the provision arguing that the policy was apparent on the face of the Act which was to fix minimum wages in order to avoid exploitation of labour in those industries where wages were very low because of unorganized labour or other causes.
iii) Power of modification of Schedule
In a number of cases, the power to amend the schedule has been upheld because the policy to give guidance to the government was discernible from the Act. It is not unconstitutional for the legislature to leave it to the executive to determine details relating to the working of taxation laws, such as selection of persons on whom tax is to be laid the rates at which it is to be charged, in respect of different classes of goods and the like.
At time a statute may confer on the executive the power to modify or amend the parent statute itself. Though prime facie a drastic power as it makes the executive supreme even over the legislature in practice such a power may have to be conferred in certain situations to provide for flexibility of approach to meet the changing circumstances. For example when some complicated scheme is introduced it is thought advisable to confer such a power on the executive to enable it to make necessary adjustments in the legislation itself so as to meet any unforeseen difficulty. The power is conferred on the Executive because if the matter is taken to the Legislature it may delay the making of necessary changes in the statute. There is thus a necessity of balancing two factors-
a) The danger of the executive misusing its power, and
b) The need for delegating the power.
In Baburam Jagdish Kumar and Co. it was held that power by the legislature to a local authority or to executive Government to vary or modify an existing law would not be unconstitutional so long as such delegation does not involve abdication of essential legislative power by the legislature i.e. necessary guidelines are provided.
Am Act imposing sales tax said that the goods mentioned the Schedule appended to the act would be exempt from taxation. But the Government can modify the schedule by giving a three months' notice. Further, the Government can make such modifications in the act as it thinks fit. The Government sought to modify the provision in the statue regarding modifying the schedule by eliminating the requirement of three months notice.
The Supreme Court declare this modification ultra vires on the ground that it changed the "essential feature" and "legislative policy" inherent in the Act. The requirement of three months' notice was a matter of legislative policy which could be changed only by the legislature and not by the delegate.
iv) Removal of difficulty
Statues usually contain a removal of difficulty clause, nick-named in Britain a the Henry VIII clause because "that king is regarded popularly as the impersonation of executive autocracy.
The provision s used usually when the legislature passes a statue implementing a new socio-economic scheme. Not being sure of the difficulties may crop up in the future implementation of the provisions of the law; the Legislature introduces therein a "removal of difficulty" clause envisaging that government may make provision to remove any difficulty that may arise in putting the law into operation.
Generally, two types of "removal of difficulty" clause call are identified in the Indian statutes.
a) A narrow power under which "power to remove difficulties" thus to be exercised consistent with the provision of the parent Act. In such a case, the Government cannot modify any provision of the statute itself.
Such a provision is valid vis-à-vis the doctrine of excessive delegating but the resultant order made by Executive to remove the difficulty ought not to change the basic policy of the parent Act. The removal of difficulty order cannot change any provision of the parent Act; the order is to give effect to the Act.
b) The other, a broader version, any authorize modification of the parent Act, or any other Act, in the name of removal of difficulties. Usually such a power is limited in point of time, say two or three years. In principle, such a power is objectionable s it vests a vast arsenal of power in the Executive.
v) Power to impose tax
In a democratic system, levying the is exclusively the function of the Legislature. Such a power is a strong weapon at eh disposal of the Legislature to control the Executive. But, in modern times, a dent has been made in this principle as well, as delegation has permeated even the tax area. After the Legislature enacts the statute to levy a tax, if many leaves some elements of taxing power to the Executive. No tax, fee or other pecuniary imposition can be levied by subordinate legislation, unless the statute under which it is made specifically authorized its imposition. General authorization for carrying out purposes of the Act does not include taxation.
In Devi Das v. State of Punjab, the law empowering the Executive to levy sales tax at a rate not exceeding 2% was held valid. The Supreme Court stated that it was alright to confer a reasonable area of discretion on the Government by fiscal statute, but a large statutory discretion placing a wide gap between the minimum and the maximum rates, and thus, enabling the government to fix an arbitrary rate might not be sustainable.
V. Nagappa v. Iron Ore Mines Cess Commissioner. A Central Act authorized the Central Government to levy a cess up to 50 paisa per metric tonne on iron and spend the many so collected on labour welfare. The delegation of power was held valid because the provision laid down the purposes for which the duty collected was to be utilized and these purposes were neither vague nor indefinite. The policy of the Act was thus clearly stated. Further, the maximum rate at which the tax might be collects was also fixed. Since the area within which discretion was t be exercised was clearly demarcated, it was not possible to argue that blanket power to fix rate had been delegated to the government.
A difficult case as Shama Roa v. Union Territory of Pondicherry, but the Supreme Court distinguished the same in Gwalior Rayon. In Shama Ra, the pondicherry Assembly passed the Pondicherry General Sales Tax Act, 1965 providing that the Madras General Sales Tax act, 1959, as in forces in the State of Madras immediately before the commencement of this act, would apply to Pondicherry; and date of the commencement S of the Act was left to the Pondicherry Government. The result was that all the amendments to the Madras Act passed by the Madras Legislature during the period of enactment and commencement of the Pondicherry Act automatically became applicable to Pondicherry. The Supreme Court ruled that this amounted to abdication of its power by the Pondicherry legislature in favour of the Madras legislature, and therefore the Pondicherry Act was bad on account of excessive delegation.
CONTROL OVER DELEGATED LEGISLATION
At present, in almost all countries, the technique of delegated legislation is resorted to and some legislative powers are delegated by the legislature to the executive.
As the Committee on Ministers' Power stated, though the practice of delegated legislation is not bad, 'risks of abuse are incidental to it' and, therefore, safeguards are required 'if the country is to continue the advantages of the practice without suffering form its inherent dangers'. Hence, 'today the question is not whether delegated legislation is desirable or not, but what controls and safeguards can and ought to be introduced so that the rule-making power conferred on the Administration is not misused or misapplied.
Controls over the delegated legislation may be divided into three categories:
a) Judicial control
b) Legislative control
c) Other controls
Delegated legislation does not fall beyond the scope of judicial review and in almost all democratic countries it is accepted that courts can decide the validity or otherwise of delegated legislation mainly applying two tests:-
a) Substantive ultra vires
b) Procedural ultra vires
'Ultra vires' means beyond power or authority or lack of power. An act maybe said to be 'ultra vires' when it has been done by a person or a body of persons which is beyond his, its or their power, authority or jurisdiction.
a) SUBSTANTIVE ULTRA VIRES
When an Act of Legislature enacts in an excess of power, conferred o the Legislature is he Constitution, the legislation is said to be ultra vires the Constitution. On the same principle, when a subordinate legislation goes beyond what the delegate is authorized to enact, it acts ultra vires. This known as substantive ultra vires.
CIRCUMSTANCES
A delegated legislation may be held invalid on the ground of substantive ultra vires in the following circumstances;
i) Where parent Act is unconstitutional
ii) Were parent Act delegate's essential legislative functions
iii) Where delegated legislation is inconsistent with parent Act
iv) Where delegated legislation is inconsistent with general law
v) Where delegated legislation is unconstitutional
vi) Unreasonableness
vii) Mala fide; Bad faith
viii) Exclusion of judicial review
ix) Retrospective effect
x) Sub- delegation
i) Where Parents Act Is Uncondtitutional
For delegation to be valid, the first requirement is that the parent Act or enabling statute by which legislative power is conferred on the executive authority must be valid and constitutional. If the delegating statute itself is ultra vires the Constitution and is bad, delegated legislation is necessarily bad.
In Chintamanrao v. State of M.P., the parent Act authorized the Deputy Commissioner to prohibit manufacturing of bidis in some areas during certain periods. The order passed by the Deputy Commissioner under the Act was held ultra vires in as much as the Act under which it was made violated the Fundamental Right to carry on any occupation, trade or business, guaranteed by Article 19(1) (g) of the Constitution.
In Sarbananada Sonowal (I) v. Union of India, it was held by the Supreme Court that if Parliament makes a law exclusively for one State, such law has to satisfy and pass the test of Article 14 of the Constitution. Mere geographical classification is not enough. T must have nexus with the object sough to be achieved by the Act. In absence thereof that Act as also delegated legislation under the Act must be held ultra vires.
In Naga People's Movement of Human Rights v. Union of India, the constitutional validity of the parent Act was challenged inter alia on the ground that it conferred arbitrary and unguided power on the executive in the matte of declaration of an area as 'disturbed area'. The supreme Court, however, negative the contention observing that before declaration of any area as 'disturbed area' there must exist a grave situation of law and order on the basis of which an opinion ca be formed. The Act, hence, cannot be held ultra vires Article 14 of the Constitution.
ii) Where Parent Act Delegates Essential Legislative Funcitons:-
It is well settled principle of Administrative Law that primary and essential legislative functions must be performed by the Legislature itself and they cannot be delegated to any other organ of the State. To put it differently, under the scheme of our Constitution, a Legislature cannot create, constitute or establish a parallel Legislature.
iii) Where Delegated Legislation Inconsistent With Parent Act:-
Validity of delegated legislation can be challenge on the ground that it is ultra vires the parent Act or enabling statute. It is well settled that the rule making power conferred by the parent Act does not enable the rule-making authority to make a rule which may travel beyond the scope of the Act or may be inconsistent with or repugnant to the enabling Act. If the rule cannot be reconciled with the parent Act, it must be struck down.
In Mohad. Yasin v. Town Area Committee, under the parent Act, the municipality was empowered to charge fee only or the use and occupation of some property of the committee, but the Town Area Committee framed bye-laws and imposed levy on whole sellers irrespective of any use or occupation of property by them. The Supreme Court held that he bye-laws were beyond the powers conferred on the committee and were ultra vires.
Likewise, in Indian Council of Legal Aid & Advice v. Bar Council of India, a rule was framed by though Bar Council barring enrolment as advocate of persons who had completed 45 years of age. The parent Act enabled the Bar Council to lay down conditions subject to which an advocate "shall have right to practice". Declaring the rule ultra viers, the Supreme Court held that the Bar Council can make the rule only after a person is enrolled as an advocate, i.e. at post-enrolment stage. It cannot frame a rule barring persons form enrolment. The rule was thus inconsistent with parent Act.
Similarly, in State of T.N. v. Hind Stone, the parent Act empowered the State Government to make rules for regulation the grant of mining leases. Rule 8-C framed by the State Government totally prohibited quarrying in black granite by private enterprise. It was contended that the rule was ultra vires the parent Act and was, therefore, bad.
iv) Where delectated legislation is inconsistent with general law:-
A subordinate legislation, apart from being intra vires the Constitution and consistent with the parent Act, must also be in consonance wit general law, I.e., any other law enacted by the Legislature. This is based on the principle that a subordinate or delegated legislation made by the executive cannot be contrary to the law of the land.
In Hindustan Times v. State of U.P., Parliament, by an Act provided pension to working journalists. The State Government, by executive instructions imposed levy on government advertisements on newspapers and deducted such levy from pension fund of working journalists. The directive of the State Government was held beyond legislative competence and ultra vires the Constitution.
v) Where delegated legislation is unconstitutional:-
Sometimes a parent Act or delegation statute may be constitutional and valid and delegated legislation may be consistent with the parent Act, yet the delegated legislation may be held invalid on the ground that it contravenes the provisions of the Constitution.
In D.S Nakara v. Union of India, the Apex Court held that a pension scheme providing higher pension to a government servant retiring before a particular date and lower pension to others to others retiring after such cut-off date was arbitrary, discriminatory and ultra vires. "The classification does not stand the test of Article 14".
In Air India v. Nergesh Meerza, a regulation framed by Air India providing that services of an Air Hostess could be terminated if she became pregnant was held arbitrary, unreasonable and voilative of Articles 14 and 15 of the Constitution.
In Delhi Transport Corpn. V. D.T.C. Mazdoor Congress, a regulation conferring power on the authority to terminate services of a permanent employee by giving him three months' notice was held to be arbitrary and ultra vires Article 14 of the Constitution.
vi) Unreasonableness:-
It is well-settled that the bye-laws made by corporations, brought and other local bodies may be declared ultra vires on the ground of unreasonableness. This rule is based on a presumed intention of the legislature that Common Law allows them to make only reasonable bye-laws.
Thus, in Air India v. Nerges Meerza, a regulation framed by Air India providing termination of services of an Air Hostess on her first pregnancy was held to be extremely arbitrary, unreasonable, and abhorrent to the notions of a civilized society and interfering with the ordinary course of human nature. It is "not a disability but one of the natural consequences of marriage and is an immutable characteristic of married life".
vii) Mala fide; Bad faith
Indian Administrative law is based on the principle that every statutory power must be exercised in good faith. Power to make delegated legislation cannot claim immunity from judicial review if the power has been exercised by the rule making authority mala fide or with dishonest intention.
In B D Gupta v. State of Bihar, the Supreme Court disapproved the practice of issuing Ordinances on a large scale being arbitrary and colorable exercise of power by the executive. If there is constitutional authority from doing an act, such provision cannot be allowed to be defeated by adoption of any subterfuge
viii) Sub-delegation.
As discussed above the maxim "delegated non potest delegate' (a delegate cannot further delegate) applies to delegated legislation also and it is not possible for the delegate to sub-delegate the power conferred on him unless the parent Act authorizes him to do so either expressly or by necessary implication.
ix) Exclusion of judicial review.
The rule of law has always recognized power of judiciary to review legislative and quasi-legislative acts. The validity of a delegated legislation can be challenged in a court of law. Sometime, however attempts are made by the legislature to limit or exclude judicial review of delegated legislation by providing different modes and methods. Thus in an Act a provision may be made that rules, regulation, bye-laws, ect. Made under it "shall have effect as if enacted in the Act", Shall not be called in question in my court; "shall be final"; shall be conclusive" and the like are ultra vires.
x) Retrospective operation
It is well-settled that delegated legislation cannot have any retrospective effect unless such a power is conferred on the rule-making authority by the parent Act.
In State of MP v. Tikamdas, the Supreme Court; observed: "There is no doubt that unlike legislation made by a sovereign legislature, subordinate legislation made by a delegate cannot have retrospective effect unless the rule-making power in the concerned statute expressly or by necessary implication confers powers in this behalf.
PROCEDURAL ULTRA VIRES
When a subordinate legislation fails to comply with procedural requirements prescribed by the parent Act or by a general law, it is known as procedural ultra vires.
REQUIREMENTS;
The following two procedural requirements may now be discussed;
1) PUBLICATION
Unlike England and America, there is no statutory provision requiring publication of delegated legislation. Yet the courts have treated some sort of publication of delegated legislation as an essential requirement for its validity.
Is the requirement of prior publication of delegated legislation mandatory? What will be the effect of non-compliance with this requirement? What is the effect in defect in defect of publication of delegated legislation? These are some of the problems which are not free from doubt. Let us consider them in the light of leading cases.
In Narendra Kumar v.Union of India, Section 3 of the Essential Commodities Act 1955 required all the rules to be made under the Act to be notified in the Official Gazatte. The principles applied by the licensing authority for issuing permits for the acquisition of non-ferrous metals were not notified.
In State of Maharastra v. MH Georgea, in this case a notification, dated November 8 1962 was published in the Gazette of India on November 24, 1962 prohibiting import of gold in India except on certain conditions. The respondent left Zurich on November 27, carrying gold with him and was arrested at the Bombay airport on an November28. He pleaded his ignorance of the notification. Negative the contention the Supreme Court held that the notification had been published and made known in India and the ignorance pleaded by the respondent accused was wholly irrelevant.
Special reference may now be made to a two Judge Bench decision of the Supreme Court in CCE v. New Tobacco Co. there a notification enhancing higher rate of duty on cigarettes was published on November 30, 1982 in the Official Gazette. The notification was placed for sale to public on December 8, 1982. It was contented on behalf of the assessee that enhanced rate could only be livable from December 8, 1982 when the notification was made available for sale. The Department, on the other hand submitted that once the notification was no further action was nece3ssary. The department relied upon MH George and Pankaj Jain Agencies. Emphasizing on the right to know and distinguishing pankaj jain agencies, albeit erroneously, the Supreme Court held that a notification can be said to be have been published only when it is made known to public at large, Mere publication of notification in Official Gazette was not enough.
MODE OF PUBLICATION
A question may also arise about the mode, manner and method of publication. As a rule, a distinction must be drawn between publication of delegated legislation and the mode, manner of publication.
In Govindlal Chhaganlal patel v. Agricultural Produce Market Committee, the notification was issued under the parent Act and was required to be published in Gujarati in a newspaper being circulated in that area. The Supreme Court held that the requirement of publication in Gujarati was mandatory and as the same was not complied with the notification was invalid.
2) CONSULTATION
The term consult implies a conference of two or more persons or an impact of two or more minds in respect of a topic in order to enable them to evolve a correct or, at least satisfactory solution of a problem.
In India there is no general statutory provision requiring consultation with the affected interested in the making of delegated legislation. But some statutes specifically provide for consultations which fall under the following heads.
a) Official Consultation;
The rule making power is delegated subject to a stipulation that is to be exercised in consultation with a named official authority or agency e.g. the Central Government is required to made rules under Section 52 of the Banking Companies Act 1949 after consulting the Reserve Bank of India.
b) Consultation with Statutory Bodies;
In certain statutes the rule-making power is conferred on the Central Government which can be exercised after consulting the Boards concerned e.g. the Central Government is empowered to make rules under Section 6 and 12 of the Drugs Act 1940 after consulting the Drugs Technical Advisory Board.
c) Consultations with Advisory Board;
Under some statutes, advisory bodies are constituted to assist the Central Government or other subordinate authorities in framing rules. Thus mining Boards are constituted under the Indian Mines Act, 1901 to assist and advise the Government in making rules.
d) Draft Rules by Affected Interests.
In some cases the power to frame rules is directly conferred on the Central Government or other Section 61 of the Indian Mines Act, 1961 the power is conferred on the owner of a mine to frame and submit to the Inspector of Mines a draft of bye law for the prevention of accidents and for the safety convenience and discipline of those employed in the mine. Ultimately, the draft rules may be approved by the central Government after hearing affected interests.
Legislative control can be effectively exercised by;
1) Laying on table;
There are several types of laying. The extent of legislative control necessarily differs in these cases. The Select Committee on Delegated Legislation summarized the procedure under seven heads.
i) Laying without further provision for control.
Here the parent Act merely provides that the rules shall be laid before the House and in exceptional cases, even before they are so laid. This procedure is only to inform p0arliament as to what rules were made by the executive authorities
ii) Laying with deferred operation;
The requirement of laying is linked with postponement of operation of the rules and thus parliament gets more control..
iii) Laying with immediate effect but subject to annulment;
Here the rules come into force when laid before parliament but cease to be in operation if disapproved by it within a specified period. As May comments this is the most common form of parliamentary control and is known as the negative resolution procedure.
iv) Laying in draft but subject to resolution that no further proceeding be taken;
This is also a negative resolution procedure. Here draft of statutory rules are required to be laid before parliament but the parent Act provides that the rules should not be made effective until a particular period has expired.
v) Laying in draft and requiring affirmative resolution;
This belongs to the realm of positive resolution and provides a stringent parliamentary supervision over delegated legislation unlike the negative resolution procedure. The draft rules do not become effective until an affirmative resolution approving the same has been passed by parliament. An opportunity is provided to the members to discuss and react to the rules before they can finally be given effect to by the executive.
vi)Laying with operation deferred until approval given by affirmative resolution;
Here the rules are actually made but they do not come into operation until approved by parliament. There is virtually no difference between this procedure and a positive resolution procedure discussed under head.
vii) Laying with immediate effect but requiring affirmative resolution as a condition for continuance;
This form of laying is used where prompt operation of delegated legislation is essential but strict parliamentary supervision is as also necessary. The confirmatory resolution keeps the delegated legislation alive, which would otherwise die. It is often applied in cases of taxation or to rules made during Emergency.
2) SCRUTINY COMMITTEES;
The function of these Committees is to scrutinize and report to the respective House where the powers to make regulation rules sub-rules, bye-laws etc; conferred by the Constitution or delegated by Parliament are being properly exercised within such delegation. They act as watch dogs which bark and arouse their master from slumber when they find that an invasion on the premises has taken place.
Besides delegation, there also prevails the institution of sub-delegation of legislative powers. Sub-delegation is used on an elaborate scale as an administrative technique in modern times. What happens is that the statue confers legislative power on an agency and that agency may further delegate the rule-making power either to itself, its officers, or another person or agency. There are thus times when the process of delegation from one level to another level goes on four or five degrees removed from the parent Act.
The process may be illustrated by reference to the practices which have emerged under the Essential Commodities Act, 1955. The Act confers rule-making power on the Central Government under section 3. This may be regarded as the first stage of delegation. Under section 5, the Central Government is empowered to delegate powers to its officers, the State Governments and their officers. This provision is frequently made use of and delegation under it may be characterized as the second stage of delegation. The third stage is reached when the power is further sub-delegated by the State Government or the official concerned.
An important point to note here is that there is the well established maxim-delegates non potest delegate which means that a delegate cannot further delegate his power unless the parent law permits him to do so. Therefore, a rule-making authority can sub-delegate its legislative power only when the parent statute authorizes sub-delegation. Sub-delegation of legislative power when not authorized by law is ultra vires. Thus, if a law confers power on the Central Government to make rules, it cannot further delegate that power to any other officer unless the parent law itself gives authority to the Government to that effect. Sub-delegation of power of delegated legislation s justified only where the parent statute expressly or impliedly authorizes the delegate himself to further sub-delegate that power to anyone else. Delegates' non-protest delegate is a well known maxim which means that in the absence of any power a delegated cannot sub-delegate its power to another person.
PROBLEMS UNDERLAY SUB-DELEGATION
Sub-delegation raises several problems. The first is whether it is necessary for the delegate to lay shown lines of guidance for the sub-delegate to follow, or can there be a plain and smile sub-delegation without laying seen any policy-guidelines for the sub-delegate to observe? The matter has arisen before the Indian courts on a few occasions. The basic principle in this respect is that the sub-delegate should not be given uncanalised and unguided legislative power. Like delegation, sub-delegation is also subject to the doctrine of excessive delegation.
The Supreme Court adopted a similar approach later in Laxmi Khandsari v. State of State of Uttar Pradesh
An order was made under the power delegated by cl. 8 of the Sugarcane Control Order passed under s. 3 of the Essential Commodities Act, 1955. cl.8 of the Sugar-cane order conferred on the Central Government power to make orders, issue directions to various persons connected with the production of khandsari sugar or crushers of sugarcane.
Power under the clause was delegated to the Cane Commissioner who made the impugned offer. Cl. 8 was challenged a invalid on the ground that it gave no guidance to the delegate.
The Supreme Court rejected the argument arguing that the Sugarcane Control Order was made under s.3 of the parent Act which contained sufficient guidelines, checks, and balancers to prevent any misuse or abuse of the power conferred on the authorities under cl.8 in addition, the power could not be deemed to be arbitrary or unguided because the impugned notification derived its source form s. 3 of the parent Act which clearly laid down sufficient guidelines. The notification under the Control Order must be read in the light of the main Act.
ULTRA VIRES
The Lok Shaba Committee on Subordinate Legislation has emphasized that sub-delegation should not be made in very wide language, or that it should not be made when the parent statute is silent on the point. The Committee ahs also stated that there should be some safeguard imposed before a delegate is allowed to sub-delegate its authority to another functionary. It has objected to wide language used in statutes to permit sub-delegation. There is a strong presumption against conferring a grant of legislative power as impliedly authorizing sub delegation, therefore sub delegation can be held to be permissible only when power to that effect is expressly conferred or when it can be inferred by necessary implication.
There is the well established principle that a sub-delegate cannot act beyond the scope of the power delegated to him. This is the principle of ultra vires. Reference may be made in this connection to the Chittoor case. The Essential Commodities Act, a stated above, confers rule-making power on the Central Government. The Central Government sub-delegated this power to the State Government subject the condition that before making any rules, the State Governments subject to prior concurrence of the Central Government. The Supreme Court ruled in the instant case that any rule made by a State Government without the concurrence of the Central Government would be ultra vires.
UNIT-III
Natural justice has been described as "fairplay in action". The doctrine of natural justice seeks not only to secure justice but also to prevent miscarriage of justice. The concept of natural justice is of variable content and imposes variable procedural norms from case to case. Natural justice depends on the circumstances of the case, the nature of inquiry, the rules under which the adjudicatory body is acting the subject-matter that is being dealt with and so forth.
It needs to be reiterated that the rules of natural justice operate only in those areas not covered by any law validly made. In other words, these rules do not supplant the law of the land but supplement it. Many a time the statute under which as adjudicatory body functions may itself lay down procedure and this would naturally have to be and this followed. But, usually, statute are either completely silent as to the procedure, or may merely ordain that the parties shall be heard before an action is taken or may lay down some skeletal procedural norms.
Natural justice has meant many thing writers, lawyers, jurists and system of law. It has many colours, shades, shapes and forms. Rules of natural justice are not embodied rules and they cannot be imprisoned within the strait-jacket of a rigid formula.
In Russel. v. Duke of Norfolk, thicker, L.J. observed there are, in my view no words which are of universal application to every kind of inquiry and every kind of domestic tribunal. The requirements of natural justice must depend on the circumstances of the case, the nature of the inquiry, the rules under which he tribunal is acting the subject-matter that is being dealt with, and so forth.
In A.K Kraipak Hegde, J. right observed what particular rule of natural justice should apply to a given case must depend to a great extent on the facts and circumstances of that case, the framework of the law under which the enquiry is held and the constitution of the Tribunal or body of persons appointed for that purpose. Whenever a complaint is made before a court that some principle of natural justice had been contravened the court had to decide whether the observance of that rules was necessary for a just decision on the facts of that case.
In R., S Dass .v. Union of India, the supreme court said; It is well established that rules of natural justice are not rigid rules; they are flexible and their application depends upon the setting and the background of statutory provision, nature of the right which may be affected and the circumstances of each case.
The traditional English law recognizes two principles of natural justice are
a) Nemo Debet ese judex in propria cause: No man shall be a judge in his own cause or no man can act as both at the one and the same time -a party or a suitor and also as a judge, or thed4eciding authority must be impartial and without bias and
b) Audi alteram partem: Hear the other side, or both the sides must be heard, of no man should be condemned unheard, of that there must be fairness on the part of the deciding authority.
ABSENCE OF BIAS, INTERESRT OR PREJUDICE
According to the dictionary meaning anything which tends or may be regarded as tending to cause such a person to decide a case otherwise than on evidence must be held to be biased. A predisposition to decide for or against one party, without proper regard to the true merits of the dispute is bias.
The first requirement of natural justice is that the judge should be impartial and neutral and must be free from bias. He is supposed to be indifferent to the parties to the controversy. He cannot act as judge kop a cause in which he himself has some interest either pecuniary or otherwise as it affords the strongest proof against neutrality. He must be in a position to act judicially and to decide the matter objectively.
Types of bias.
Bias is of four types
i) Pecuniary bias,
ii) Personal bias,
iii) Official bias or bias as to subject-matter,
iv) Judicial obstinacy.
i) Pecuniary bias
It is well-settled that as regards pecuniary interest the least pecuniary interest in the subject-matter of the litigation; will disqualify any person from acting as a judge.
In Dr. Bonham case Dr. Bonham, a doctor of Cambridge University was fined by the college of Physicians for practicing in the city of London without the license of the college. The statute unde4r which the college acted provided that the fines should go half to the king and half to the college. The claim was disallowed by coke, C.J. as the college had a financial interest in its own judgment and was a judge fin its own cause.
In Visakapatanam Coop. Motor Transport co. Ltd. v. G. Bangaruraju, a cooperative society had asked for a permit. The collector was the President of that society and he was also a chairman of the regional Transport Authority who had granted the permit in fervor of the society. The court set aside the decision as being against the principles of natural justice.
In J. Mohapatra and Co. v. State of Orissa, some of the members of; the committee set up for selecting books for educational institutions were themselves authors whose books were to be considered for selection. It was held by the Supreme Court that the possibility of bias could not be ruled out. Madon, J. observed It is not the actual bias in favor of the author member that is material, but the possibility of such bias.
ii) Personal bias.
The second type of bias is a personal one. A number of circumstances may give rise to personal bias. Here a judge may be a relative friend or business associate of a party. He may have some personal grudge, enmity or grievance or professional rival against such party. In view of these factors there is every likelihood that; the judge may be biased towards one party or prejudice towards the other.
In Rattan Lal v. Managing Committee, X was a witness as well as one of the three members of an inquiry committee against A. At the inquiry, A was found guilty and was dismissed. Setting aside dismissal and following Mohd. Nooh, the Supreme Court held that the proceedings were vitiated because of prejudice of one of the members of the committee.
In the leading case of A.K. Kraipak .v. Union of India, One N was a candidate for selection to the Indian Foreign Service and was also a member of the Selection Board. N did not sit on the Board when his own name was considered. Name of N was recommended by the Board and he was selected by the public Service Commission. The candidates who were not selected field a write petition for quashing the selection of N on the ground that the principles of natural justice were violated.
About the case, Bhagwati J. said; A.K. Kkraipak is a landmark in the development of administrative law and it has contributed in a large measure of strengthening of the rule of law in this country. We would not like to whittle down in the slightest measure the vital principle laid down in this decision which down which has nourished the rule of law and injected justice and fair play into legality.
iii) Official bias
The third type of bias is official bias or bias as to the subject-matter. This may arise when the judge has a general interest in the subject-matter.
According to Griffith and Street, only rarely will this bias invalidate proceedings. A mere general interest in the general object to be pursued would not disqualify a judge from deciding the matter. There must be some direct connection with the litigation. Wade remarks that ministerial or departmental policy cannot be regarded as a disqualifying bias.
In Gullapalli Nageswara Rao.v. A.P.S.R.T.C. The petitioners were carrying on motor transport business. The Andhre state Transport Undertaking published a scheme for nationalization of motor transport in the state and invited objections. The objections filed by the petitioners in the state and heard by the secretary and there after the scheme were approved by the chief Minister. The Supreme Court upheld the contention of the petitioners that the official who heard the objections was in substance one of the pastries to the dispute and hence the principle of natural justice were violated.
But in Gallipoli, the Supreme Court qualified the application of the doctrine of official bias. Here the hearing was given by the Minister and not by the secretary was a part of the department but the minister was only primarily responsible for the disposal of the business pertaining to that department.
In Institution of Chartered Accountants of India v. L.K. Ratna, a member of the institution was removed on the ground of misconduct. The question before the Supreme Court was whether the finding of the council holding the members guilty can be said to be vitiated on account of bias because the chairman and the Vice-president of the Disciplinary committee were ex officio president and Vice-president of the Council and other members of the committee were also drawn from the council.
iv) Judicial obstinacy
There may also be a judicial bias, i.e. bias on account of judicial obstinacy. In State of W.B v. Shivananda pathak, a writ of mandamus was wrought by the petition directing the Government to promote him. A single judge allowed the petition ordering the authorities to promote the petition forthwith. But the order was set aside by the Division Bench. After two years, a fresh petition was filed for payment of salary and other benefits in the terms of the judgment of the single judge. It was dismissed by the single judge. The order was challenged in appeal which was heard by a Division Bench to which one Member was la judge who had allowed the earlier petition. The appeal was allowed and certain reliefs were granted. The state approached the Supreme Court.
Allowing the appeal and setting aside the order the Apex court described the case of a new form of bias. It said that if a judgment of a judge is set aside by a superior court the judge must submit to that judgment. He cannot rewrite overruled judgment in the same or in collateral proceedings. The judgment of the higher court binds knot only the parties to the proceeding but also to the judge who had rendered it.
Hear the other side (Audi altermpartem)
Audi alteram partem means hear the other side, or no man should be condemned unheard or both the sides must be heard before passing any order. In short, before an order is passed against any person, reasonable opportunity of being heard must be given to him. Generally, this maximum includes two elements:
i) Notice and
ii) Hearing.
i) Notice
Before any action is taken the affected party must be given a notice to show cause against the proposed action and seek his explanation. It is a sine qua non of the right of fair hearing. Any order passed without giving notice is against the principles of natural justice is void ab initio.
In R v/ university of Cambridge Dr Bentley was deprived of his degrees by the Cambridge University on account of his alleged misconduct without giving any notice or opportunity of hearing. The court of Kings Bench declared the decision as null and void.
In Ravi Naik v. Union of India, a member of Goa Legislative Assembly was disqualified by the speaker. The relevant rules provided notice of seven days or such further period as the speaker may for sufficient cause allow. In the instant case, instant case, however notice gave only three days time.
Holding that there was no prejudice to the member and upholding the action the Supreme Court stated that the principles of natural are flexible and not immutable. Whether the requirements of natural justice have been complied with or not has to be considered in the context of the facts and circumstances of a particular case.
Elements of a valid notice
The notice to be valid and effective must be property served on the concerned person. It must give sufficient time to enable the individual to prepare his case. Thus to give one day's time to show cause against the proposed action t a person who is out of station, or to call upon a delinquent employee to show cause immediately and to permit his no time to consider the report against him, amounts to a denial of notice. It depends upon the facts of each case whether the individual was allowed sufficient time; to make representation against the notice issued to him. In Canare Band, it was held that notice is the first limb of the principle that no one should be condemned unheard. It must be precise and unambiguous. It should apprise the party determinatively of the case he has to meet and should give adequate time. In the absence of notice of the kind and such reasonable opportunity, the order passed be comes wholly vitiated. Again in Sohnlal Gupta it was observed that valid Notice is an essential component constituting a reasonable opportunity.
In Satish Chandra's. Union of India. The Government of India gave a seven days notice to Delhi Municipal Corporation for superseding the corporation on a number of grounds. The Government turned down the request of the corporation for extension of time be ten days to reply to the charges. In a 2 to 1 decision, the action of the Government was upheld by the Delhi High court. The opinion of the dissenting judge in the instant case in more convincing than the majority opinion. According to him; In considering the reasonableness of the request for extension of time, it is not possible to ignore that the corporation was not an individual, who had to act on it own and therefore, involving a simple process of application of mind. It was a corporate body composed of more; then 100 people and that the proposed suppression was a very important matter for the body to deliberate.
In N.S. Transport v. State of Punjab a company had 33 stage carriage permits of various routes. The transport commissioner, on receiving some complaints against the company, issued a notice asking it to show cause why action to cancel or suspend its permits should not be taken. The Supreme Court held the notice to be bad. Reading the relevant statutory provision, the court ruled that proposed penal action has to be particularized with reference to each permit detailing the particular conditions for breach of which action is sought to be taken in connection with a particular permit.
Service of notice
When a statute prescribes a particular mode to serve a notice, the prescribed mode has to be followed. A statutory rule prescribed the following modes to serve the notice;
(i) By delivering to him;
(ii) Sending it to him by registered post
(iii) Failing both by affixing it on the outer door of the residence.
A notice sent by registered post was returned undelivered. It was not then served in mode.
ii) Hearing
The second requirement of Audi alteram partem maxim is that the person concerned must be given an opportunity of being heard before any adverse action is taken against him.
In the historic case of cooper v. Wandsworth Board of Works, the defendant Board had power to demolish any building without giving any opportunity of hearing if it was erected without prior permission. The Board demolished the house of the plaintiff under this provision. The Board was not in violation of the statutory provision. The court held that the Boards power was subject to the qualification that no man can be deprived of his property without having an opportunity of being heard.
Ridge v. Bldwin has rightly been described as the magna carta of natural justice. In the case the plaintiff, a chief constable had been prosecuted but acquitted on certain charges of conspiracy. In the course of the judgment, certain observations were made by the presiding judge against the plaintiff's character as a senior police. Taking into account those observation the Watch committee dismissed the plaintiff from service.
The Court of Appeal held that the Watch Committee was acting as an administrative authority and was not exercising judicial or quasi-judicial power, and therefore, the principles of natural justice did not apply to their proceedings for dismissal. Reversing the decision of the Court of Appeal, the House of Lords by a majority of 4:1 held that the power of dismissal could not be exercised without giving a reasonable opportunity of being heard and without observing the principles of natural justice. The order of dismissal was, therefore, held to be illegal.
Again, in Manika Gandhi v. Union of India, the passport of the petitioner-journalist was impounded by the Government of India 'in pubic interest'. No opportunity was given to the petitioner before taking the impugned section. The Supreme Court held that the order was volatile of the principles of natural justice.
In M.S. Nally Bharat Engineering Co. Ltd. v. State of Bihar, a senior supervisor was dismissed form service by the Company for committing theft. The dispute was referred to the Labour Court, Dhanbd, under the Industrial Disputes Act, 1947. the workman made an application to the Labour Court stating that since he was residing at Haripur, it would be convenient for him if the case would be transferred to Labour court patna. That application was made without intimation to the management. The Government also without issuing notice or affording opportunity to the management acceded to the request of the workman and transferred the case to Labour court, Patna. The petition filed by the management against the said order was summarily dismissed by the High court of Patna on the ground that no prejudice was caused to the company. The management approached the Supreme Court.
Allowing the appeal and setting aside the order of the High Court as well as the Government, the Supreme Court held that fairness required that an opportunity of hearing ought to have been afforded to the company before passing the impugned order.
CROSS-EXAMINATION
Cross-examination was never considered to be part and parcel of the doctrine of natural justice. It always depends upon the facts and circumstances of each case whether an opportunity of cross-examination should be given to a party against whom proceedings have been initiated.
If a statute permits cross-examination of witnesses examined at the inquiry or adjudication, obviously, the opposite party can claim right to cross-examine them. Normally, in disciplinary proceedings as also in domestic inquiries, right of cross-examination is not denied.
In State of Kerala v. K.T.Shaduli, the returns filed by the respondent-assessee on the basis of his books of account appearing to the Sales Tax Officer to be incomplete and incorrect, since certain sales appearing in the books of accounts of a wholesale dealer were not mentioned in the account books of the respondent. The respondent applied to the S.T.O. for opportunity to cross-examine the wholesale dealer which was rejected by him. Holding the decision of the S.T.O. to be illegal, the Supreme Court held that the respondent could prove the correctness and completeness of his returns only by showing that the entries in the books of accounts of the wholesale dealer were false and bogus and this obviously the respondent could not do unless he was given an opportunity to cross-examine the wholesale dealer.
In Hira Nath Mishra v Principal, Rajendra Medical College, a complaint was made that some male students entered quite naked into the compound of the girls' hostel late at night. They were rusticated from the college. Their prayer to cross-examine female students who had seen them was denied. The Supreme Court the action observing that "the girl students would not have ventured to male their statements in the presence of the miscreants because if they did, they would have most certainly authorities are in no position to protect the girl students outside the college precincts".
In Avinash Nagra v. Navodaya Vidyalaya samiti, a probationer teacher in a co-education institution was charged with sexual advances to a girl student. In spite of warning, he did not correct himself. At late night hours, he went to girls' hostel and entered her room. Disciplinary authority terminated the services of the teacher. He contends that he ought to have been granted an opportunity to cross-examine the girl student. The Supreme Court, however, upheld the termination observing that the facts of the case justified refusal of cross examination by the school authorities.
Hearing would make no difference
It principles of natural justice are not observed and penal action is taken, the action is liable to be set aside. A question, however may arise whether such action can be sustained on the argument that even if notice would have been issued or hearing afforded, it would have made no difference or no useful purpose would have been served.
In Board of High School v. Kumari chitra Srivastave the board cancelled the examination of the petitioner on the ground that there was shortage in attendance at lectures. But no notice was given to her before taking the action. On behalf of the Board it was contended that the facts were not in dispute and no useful purpose would have been served by giving such notice. The Supreme Court however did not uphold by contention.
In S.L. Kapoor v. Jagmohan, rejecting a similar argument, the Apex court said; The non observance of natural justice is itself prejudice to any man and proof of prejudice independently of proof of denial of natural justice is unnecessary. It ill comes from a person who has denied justice that the person who has been denied justice is not prejudiced.
In Aligarh Muslim University v. Mansoor Ali Khan, the relevant rule provided automatic termination of service on unauthorized absence of employee for certain period. Since M remained absent for more than five years, the post was deemed to have been vacated. M challenged the order being volatile of natural justice as no opportunity of hearing was afforded before taking thee action. The court refused to set aside the order observing that there was no prejudice to M. According to the court, the only conclusion which could be drawn was that had M been given notice, it would not have made any difference.
RIGHT OF CONUNSEL
The right of representation by a lawyer is never considered to be a part of natural justice and it cannot be claimed a s of right, unless the said right is conferred by the statute.
In Pett v. Geryhound Racing Assn. (II), Lyell, J. observed.
"I find it difficult to say that legal representation before a tribunal is an elementary feature of the fair dispensation of justice. It seems to me that it arises only in society which has reached some degree of sophistication in its affairs".
But speaking generally, the right to appear through a counsel has been recognized I Administrative Law. C.K.Allen rightly says, "Experience has taught me that to deny persons who are unable to express themselves the services of a competent spokes man is a very mistaken kindness".
POSITION IN INDIA
In India a few statutes, like the Industrial Disputes Act specifically bar legal practitioners from appearing before the adjudicative bodies excepts under certain conditioners, while certain others statutes recognize the right of being represented through a lawyer.
In the case of disciplinary proceedings against civil servants, rules provide that a civil servant may not engage a legal practitioner at the enquiry "unless the Disciplinary Authority, having regard to the circumstances of the case, so permits," thus, it is for the inquiry officer to permit or not legal representation to the delinquent civil servant. But in certain circumstances, refusal by the inquiry officer to permit legal representation to the employee may be challengeable in a court on the ground of denial of natural justice, as for example when he is pitted against a trained prosecutor.
The Supreme Court ruled in Johney D'Cuoto v. State of Tamil Nadu, that the advisory board was wrong in rejecting detenu's request. He had a right to be represented by a friend. The term 'friend' does not only mean "one who is well know" by also one who is an "ally in a fight or cause supporter". A person not being a friend in the normal sense could be picked up for rendering assistance before the advisory board. Also, since the authority had the assistance of high excise officials, the board has no justification to refuse detenu's request.
UNIT-IV
Administrative law provides for control over the administration by an outside agency strong enough to proven injustice to the individual while leaving the administration adequate freedom to enable it to carry on effective Government. Due to increase in governmental functions, administrative authorities exercise vast pores in almost all fields. But as has bee rightly observed by Lord Denning, "properly exercised the new powers of the executive lead to Welfare State, but abused they lead to the Totalitarian State". Without proper and effective control and individual would be without remedy, even though injustice is done to him. This would be contrary to the fundamental concept in English and Indian legal systems in which the maxim 'ubi jus ibi remedium' has been adopted since long. In fact, right and remedy are, but the two sides of the same coin and they cannot be dissociated from each other.
The Founding Fathers of the Constitution of India were aware of the part played by prerogative writs in England. They, therefore, made specific provisions in the constitution itself empowering the Supreme Court and High Courts to issue writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari for enforcement of Fundamental Rights (Articles 32 and 226) and also for other purpose (Article 226)
HABEAS CORPUS
The writ of habeas corpus is one of the most ancient writs know to the common law of England. The Latin phrases 'habeas corpus' means 'have the bodies'. This is a writ in the nature of an order calling upon the person who has detained or arrested another to produce the latter before the court, in order to let the court know on what ground he has been confined and to set him free id there is no legal justification for the imprisonment. In other words, by this writ, the court directs the person or authority who has detained another person to bring the body of the prisoner before the court may decide the validity, jurisdiction or justification for such detention.
In the leading case of A.D.M., Jabalpur v. Shivakant Shukla, Khanna, J. stated: "The writ of habeas corpus is a process for securing the liberty of the subject by affording an effective means of immediate relief from unlawful or unjustifiable detention, whether in prison or private custody. By it the High Court and the Judges of that court, at the instance of a subject aggrieved, command the production of that subject an inquire into the cause of his imprisonment. If there is no legal justification for that detention, the party is ordered to release.
Who may apply?
An application for the writ of habeas corpus may be made by the person illegally detained. But if the prisoner himself is unable to make such application, it can be made by any other person having interesting the prisoner. Thus, wife, husband, father, mother, sister, or even a friend may in such circumstances make an application for the writ of habeas corpus. He should not, however, be total stranger.
Habeas corpus and proclamation of emergency
Article 359 of the Constitution empowers the President to suspend the right to move any court for the enforcement of such of the fundamental rights conferred by Part III as may be mentioned in the Presidential Order.
In Makhan Singh v. State of Punjab, the Supreme Court held that the court cannot issue a writ of habeas corpus to set at liberty a person who has been detained under the Defense of India Act, 1962 even if h is detention was inconsistent with his constitutional rights guaranteed under Part III of the Constitution if Presidential Order suspending fundamental fights under Articles 14, 21 and22 is in operation. But the Presidential Order does not debar the jurisdiction of the court to decide as to whether the order of detention was under the Defense of India Act, 1962 or rules made there under. It is open to the petitioner to contend that the order was mala fide or invalid and in either of the cases, he is entitled to move the court for the protection of his rights under Articles 21 and 22 of the Constitution of India.
Unfortunately, however, in ADM v. Shivkant Shukla, the Supreme Court by a majority of 4: 1 held that during the emergency and suspension of Fundamental rights, no person has locus stand to move any court for a writ of habeas corpus. As stated elsewhere, the majority judgment does not lay down correct law. Fortunately, after the Constitution Act, 1978, rights conferred by Articles 20 and 21 of the Constitution cannot be suspended even during emergency.
Quo warranto
The term quo warranto means what is your authority. The writ of quo warranto is used to judicially control executive action in the matter of making appointments to public offices under relevant statutory provisions. The writ is also used to protect a citizen form the holder of a public office to which he has no right. The writ calls upon the holder
a public office to show to the court under what authority he is holding the office in question.
In University of Mysore v. Govinda Rao, the Supreme Court observed: "The procedure of quo warranto confers jurisdiction and authority on the judiciary to control executive action in the matter of making appointments to public offices against the relevant statutory provision; it also protects a citizen being deprived of public office to which he may have a right".
Before the writ of quo warranto can be issued the following conditions must be satisfied:
i) Such office must be of a public nature
ii) It must be of a substantive character
iii) It must be statutory
iv) The holder must be in actual occupation of the office
1) Public office
The office must be of a public nature,. By public office is meant an office in which the public has a interest. Before the writ can be issued the court must be satisfied that the office in question is a public office and the holder thereof has no legal authority to hold the said office.
This writ will not lie in respect of office of a private nature, e.g. a managing committee of a private school. On the other hand, the officers of the Prime Minister, Chief Minister, Minister, Chief Justice Advocate General, Speaker of a House of Legislature, Mayor, Councellor, etc. are public offices.
2) Substantive character
The office must be of a substantive character. The words 'substantive character' means the office in question must be an independent official and not merely a deputy of servant of others.
But the mere fact that office is held at pleasure will not make the office one which is not substantive. Thus, the membership of the Privy Council, or the office of an Advocate General of a State, or the Governor, through held during the pleasure of the Crown can be said to be of a substantive character.
3) Statutory character
The office must be statutory or constitutional. Thus, a writ of quo warranto may be issuer in respect of offices of the Prime Minister, Advocate General, Judge of High Court Prosecutor, Speaker of a House of the State legislature, members of a Municipal body, University officials, etc.
4) Actual occupation
The holder must be in actual occupation of the office and he must have asserted his right to claim it. Mere claim to an office is not enough to justify issuance of quo warranto. Such claim must be coupler with occupation and usurpation.
Alternative remedy
If an alternative and equally effective remedy is available to the applicant, a writ court may not issue quo warranto and relegate him to avail of that remedy. Thus, when quo warranto may be refused when an alternative remedy by making of an election petition is available to the applicant. But if the objection taken by the petitioner falls outside the statutory remedy, the existence of alternative remedy will be no bar to the writ of quo warranto. Existence of alternative remedy, however, is not an absolute bar and a writ court has distinction to issue quo warranto notwithstanding availability of alternative remedy.
MANDAMUS
Nature and Scope
Mandamus means a command. It is an order issued by a court to a public authority asking it to perform a public duty imposed upon it by the Constitution of by any other law. Mandamus is a judicial remedy which is in the form of an order from a superior court (the Supreme Court or a High Court) to any Government, court, corporation or public authority to do or to forbear from doing some specific act which that body is obliged under law to do or refrain from doing, as the case may be, and which is in the nature of a public duty and in certain cases of a statutory duty.
A writ of mandamus can be issued if the following conditions are satisfied by the petitioner.
(i) Legal right
The petitioner must have a legal right. This is a condition precedent. It is elementary that no one can ask for mandamus without a legal right. There must be legally protected and judicially enforceable right before an applicant may claim mandamus.
(ii) Legal duty
The second requirement for a writ of mandamus is that the opposite party must have a legal duty to be performed. A legal duty must have been imposed on the authority and the performance of that duty should be imperative, not discretionary of some duty cast on the oppo In certain circumstances, however, even if discretionary power is conferred on the authority and the statutory provisions are made for such exercise of the said power, the writ of mandamus can be issued for the enforcement of that duty. Such a duty must be a public nature. If the public authority invested with discretionary power abuses the power, or exceeds it, or acts mala fide, or there is non-applicant of mind by it, or irrelevant considerations have been taken into account, the writ of mandamus can be issued.
(iii) Good faith
An application for mandamus must have been made in good faith and not for any ulterior motive or oblique purpose. A petition for mandamus albeit made in good faith, will not be granted if designed to harass the respondent or with a view to wreak personal grievances, or is really on behalf of some third party.
(iv) Alternative remedy
Mandamus may be refused if alternative remedy is available to the applicant.
(v) Against whom mandamus would not lie
A writ of mandamus will not lie against the President or the Governor of a State for the exercise and performance of powers and duties of his office or for any act done or purporting to be done by him in the exercise and performance of those powers and duties. It will not lie against the State Legislatures to prevent them from considering enacting a law alleged to be volatile of constitutional provisions. It will not lie against an inferior or ministerial officer who is bound obey the orders of his superior. "The writ of mandamus will not be granted against one who is an inferior or ministerial officer, bound to obey the orders of a competent authority, to compel him to do something which is part of his duty in that capacity." It also does not lie against a private individual or any incorporate body.
Mandamus is not issued to enforce civil liability arising under the law of torts or contracts. In Sufanmal v. State of Madhya Pradesh, the Supreme Court refused to issue mandamus to command the Government to refund money illegally collected by it where the sole prayer was for the refund of money and the statute had not expressly provided for its refund. However, the writ may be issued to give consequential relief by ordering the refund of tax where the petitioner is challenging the validity of the law imposing the tax, or the validity f an order of assessment, or it may be issued where a statute expressly provides for refund of the tax collected illegally. The writ is an inappropriate remedy where a person claims damages against the Government for its tortuous action.
In S.I. Syndicate, the court refused to grant mandamus as there was no such demand or refusal. Where a civil servant approached the court for mansmus against wrongful denial of promotion, he was denied the relief because of his failure to make representation to the Government against injustice. The demand for justice is not a matter of form but a matter of substance, and it is necessary that a "proper and sufficient demand has to be made.
PROHIBITION
Prohibition is an extraordinary prerogative writ of a preventive nature. It seeks to prevent courts, tribunals, quasi-judicial authorities and officers or persons exercising judicial or quasi-judicial powers from usurping jurisdiction or exercising jurisdiction no vest in them.
In East India Commercial Co. Ltd. v. collector of Customs, the Supreme Court observed:
"A writ of prohibition is an order directed to an inferior Tribunal forbidding it from continuing with a proceeding therein on the ground that the proceeding is without or in excess of jurisdiction or contrary to the laws of the land, statutory or otherwise.
Grounds
Essentially, both the writs of certiorari and prohibition can be issued when an inferior court or tribunal acts without or in excess of its jurisdiction, or acts in violation of principles of natural justice, or acts under a law which is ultra vires or acts in contravention of fundamental rights or there is an error apparent on the face of the record in exercising jurisdiction by the court or tribunal.
Absence or excess of jurisdiction
In case of absence or total lack of jurisdiction, writ of prohibition would be available against a judicial or quasi-judicial authority prohibiting if from exercising jurisdiction not vested in it. Thus, in case of levy of license fee without authority of law, prohibition was issued. Again, if a taxing authority proposes to impose tax on a commodity exempted under the Act, a writ of prohibition can be issued.
Again, a distinction must be drawn between lack o jurisdiction and the manner or method of exercising jurisdiction vested in a court or tribunal. Prohibition cannot lie to correct the course, practice or procedure of an inferior court or a tribunal or against a wrong decision on the merits.
Violation of natural justice
A writ of prohibition can also be issued when there is violation of the principles of natural justice. In fact, is the principles of natural justice have not been observed, e.g. if there is bias or prejudice on the part of the Judge or id no notice was issued or hearing given to the person against whom the action is sought to be taken, there is no jurisdiction vested in the court or the tribunal to proceed with such matter.
Unconstitutionality of statute
A writ of prohibition will also be issued if a court or a tribunal proceeds to act under a law which is ultra vires or unconstitutional. Thus, if the proceedings are pending in a court or a tribunal under a statute which itself is ultra vires Article 14, or Articles 25 and 26, of the Constitution or is beyond the competence of the legislature, a writ of prohibition or is beyond the competence of the legislature, a writ of prohibition can be issued against further proceedings.
Infringement of fundamental rights
Prohibition may be issued where the impugned action infringes the fundamental rights to petitioner. Thus, prohibition was issued against the income tax assessment proceedings where the order by which the proceedings were transferred to another officer was arbitrary and violative of Article.
Error of law apparent on the face of the record
Where there is an error of law, which is clear, patent and apparent on the face of the record, a writ of certiorari lies for quashing and setting the order. The same principle and reasoning applies where the proceedings are pending before a court or tribunal. In such case, a superior court may restrain a subordinate court or inferior tribunal from proceeding further in the matter pending before it.
A writ of prohibition can lie only in cases where the proceedings are pending before a judicial or qusi-judicial authority. Thus, when such authority hears a matter over which it has no jurisdiction, the aggrieved person may move a High Court for the writ of prohibition forbidding such authority form proceeding with become functus officio, a writ of prohibition would not lie. There the remedy may be a writ of certiorari.
Certiorari and prohibition
In Brij Khandelwal v. Union of India, the Delhi High Court refused to issue prohibition to the Central Government to prevent it from entering into an agreement with Sir Lanka regarding a boundary dispute. The decision was based on the principle that prohibition does not lie against Government discharging executive functions and that prohibition is intended to control quasi-judicial, and not executive functions. But this view is no longer tamable. With the expansion of the concept of natural justice, and the emergence of the concept of fairness even in administrative functions, the frigidity about certiorari and prohibition has also been relaxed. These writs can now issue to anybody, irrespective of the nature of the function discharged by it, if any of the grounds on which the writs are issued is present.
A writ of certiorari has been described as "one of the most valuable and efficient remedies" derived from the Common Law.
Certiorari is essentially a royal command for information, the King wishing to be certified of some matter, orders that necessary information be provided to him. It is a method of bringing the record of a subordinate court or an inferior tribunal before a superior court to correct errors of jurisdiction or of law apparent on record and to decide whether the authorities had exceeded their jurisdiction or errors of law committed by them had resulted in miscarriage of justice.
Both prohibition an certiorari are judicial writs and are available against subordinate courts and inferior tribunals. There is, therefore, no difference in principle between certiorari and prohibition except in respect of timing of the remedy; one before while the other after the decision. Prohibition and certiorari are two complementary writs and frequently go hand in hand. A writ of certiorari is corrective or remedial whereas a writ of prohibition is preventive. Certiorari applies to a decision which is fait accompli; prohibition seeks to prevent the fait from becoming accompli.
Sometimes both the writs might be necessitated. Thus, in a proceeding before an inferior court, a decision might have been arrived at which case it might be necessary to apply both certiorari and prohibition. Certiorari foe quashing what has been decided; and prohibition for restraining further continuance of the proceeding.
Grounds for issue of the writ
A writ of certiorari may be issued on the following grounds
i) Error of jurisdiction
When an inferior court or tribunal acts without jurisdiction, or in excess of its jurisdiction or fails to exercise jurisdiction vested in it by law, a writ of certiorari may be issued against it.
In R. v. Minister of Transport, even though the Minister was not empowered to revoke a license, he passed an order of revocation of license. The order was quashed on the ground that it was without jurisdiction and, therefore, ultra vires.
ii) Jurisdictional fact
Lack of jurisdiction may also arise from absence of some preliminary facts, which must exist before a tribunal exercises its jurisdiction. They are known as 'jurisdictional' or 'collateral' facts. The existence of these facts is a sine qua non or a condition precedent to the assumption of jurisdiction by an inferior court or tribunal. To put it simply, the fact the existence of which is necessary to the initiation of proceedings and without which the act of the court is a nullity can be said to be a 'jurisdictional fact'.
In State of M.P. v D.K. Jadav. Under the relevant statute all jagirs, including lands, forests, trees, tanks wells, etc. were abolished and vested in the State. However, all thanks tress, private wells and buildings on 'occupied land' were excluded from the provisions of the statute. If they were on 'unoccupied land' they stood vested in the State. The Supreme Court held that the question whether the tanks, well, etc. was on occupied land or on 'unoccupied' land was a jurisdictional fact.
Error apparent on the face of the record
If there is an error of law, which is apparent on the face of the record, a decision of an inferior court or a tribunal may be quashed by a writ of certiorari.
But an error of fact, 'however grave it may appear to be' cannot be corrected by a writ of certiorari. Where two views are possible, if an inferior court or tribunal has taken one view, it cannot be corrected by a writ of certiorari.
LIABILITY OF GOVERNMENT
In England, the Government was never considered as an honest man. It is fundamental to the rule of law that the Crown, like other public authorities, should bear its fair share of legal liability and be answerable for wrongs done to its subjects. The immense expansion of governmental activity from the latter part of the nineteenth century onwards made it intolerable for the Government in the name of the Crown, to enjoy exemption from the ordinary law.
In India, history has traced different path. The maxim the King can do no wrong has never been accepted in India. The union and the States are legal p-persons and they can be held liable for breach of contract and in trot. They can file suits and suits can be filed against them.
CONTRACTUAL LIABILITY
Constitutional provisions
Constitutional liability of the Union of India and States is recognized by the Constitution itself. Article 298 expressly provides that the executive power of the Union and of each State shall extend to the carrying on of any trade or business and the acquisition, holding and disposal of property and the making of contracts for any purpose.
Article 299(1) prescribes the mode or manner of execution of such contracts. It reads as "All contacts made in the exercise of the executive powe4r of the Union or of a state shall be expressed to be made by the president, or by the Governor of the State, as the case may be and all such contracts and all assurances of property made in the exercise of that power shall be executed on behalf of the president or the Governor by persons and in such manner as he may direct or authorize.
Requirements
Reading the aforesaid provision it becomes clear that Article 299 lays down the following condition and requirements which must be fulfilled in contracts made by or with the Union or a State:
1) Every contract must be expressed to be made by the president or the Governor
2) Every contract must be executed by a person authorized by the president or the Governor.
3) Every contract must be expressed in the name of President or the Governor
WRITTEIN CONTRACT
A contract to be valid under Article 299(1) must be in writing. The words expressed to be made and executed in this article clearly go to show that there must be a formal written contract executed by a duly authorized person. Consequently if there is an oral contract, the same is not binding on the Government.
In Union of India v. A.L. Rallia Ram, tenders were invited by the Chief Director of purchases, Government of India. R's tender was accepted. The letter of acceptance was singed by the Director. The question before the Supreme Court was whether the provisions of section 175(3) of the Government of India Act 1935 were complied with. The court held that the Act did not expressly provide for execution of a formal contract. In absence of any specific direction by the Governor-General, prescribing the manner or mode of entering in to contracts, a valid contract may result from the correspondence between the parties.
EXECUTION BY AUTHORISED PERSON
The second requirement is that such a contract can be entered in to on behalf of the Government by a person authorized for that purpose by the President or the Governor as the case may be. If it is singed b an officer who is not authorized by the President or governor the said contract is not binding on the Government and cannot be enforced against it.
In Union of India v. NK (P) ltd, the Director was authorized to enter into a contract on behalf of the President. The contract was entered into by the Secretary, Railway Board. The Supreme Court held that contract was entered into by an officer not authorized for the said purpose and it was not a valid and binding contract.
In State of Bihar V. Karma Chand Thapar, the plaintiff entered into a contract with the Government of Bihar for construction of an aerodrome and other works. After some work a dispute arose with regard to payment of certain bills. It was ultimately agreed to refer the matter for arbitration. The said agreement was expressed to have been made in the name of the governor and was signed by the Executive Engineer. After the award was made, the Government contended in civil court that the Executive Engineer was in a person authorized to enter into contract under the notification issued by the Government, and therefore, the agreement was void. On a consideration of the correspondence produced in the case, the Supreme Court held that the executive Engineer had been specially authorized by the Governor to execute the agreement for reference to arbitration.
EXPRESSION IN THE NAME KOF PRESIDENT
The last requirement is that such a contract must be expressed in the name of the President or the Governor as the case may be. Thus even though such a contract is made by an officer authorized by the Government in this behalf, it is still not enforceable against the Government if it is not expressed to be made on behalf of the President or the Governor.
In State of Punjab v. Om Prakash, The Executive Engineer PWD who was authorized under the P"WD Manual to enter into a contract accepted the tender of the contractor for construction of a bridge. The letter of acceptance was signed by the Executive Engineer but was not expressed in the name of Governor. The Supreme Court held that there was no valid contract. Reiterating the principles laid down in earlier decisions and holding the provisions of Article 299 mandatory and in public interest, the court ruled that the said formalities could not be waived or dispensed with.
Doctrine of vicarious liability
Since the state is a legal entity and not a living personality it has to act through human agency, i.e. through its servants. When we discuss the tortuous liability of the state it is really the liability of the state for the tortuous acts of its servants that has to be considered. In other words, it refers to when the state can be held vicariously liable for the wrongs committed by its servants or employees.
The doctrine of vicarious liability is based on two maxims:
i) Respondent superior (Let the principal be liable)
ii) Qui facit per alium facit per se(He who does an act through another does it himself)
So far as Indian law is concerned the maxim "the King can do no wrong" was never fully accepted. Absolute immunity of the government was not recognized in the Indian legal system in past. Kings were always subject to rule of law and to the system of justice prevalent at the relevant time. According to Manu, it was the duty of the King to uphold the law as he himself was subject to law like any other ordinary citizen. Brihspati had taken note of vicarious liability of state and observed that wherever a servant did an improper act for the benefit of his master, the latter could be held responsible.
Under Article 294(b) of the constitution, the liability of the union Government or a state Government may arise out of any contract or otherwise. The word otherwise suggests that the said liability may arise in respect of tortuous acts also. Under Article 300(1) the extent of such liability is fixed. It provides that the liability of the union of India and the provinces before the commencement of the constitution.
Peninsular &Oriental Steam Navigation Co. v. Secy. of State is considered to be the first leading decision of the High court of Calcutta on the point. There the distinction was made between sovereign and non-sover4eign function of the state. In that case a servant of the plaintiff company was taking a horse driven carriage belonging to the company. While the carriage was passing near the government dockyard certain workmen employed by the Government negligently dropped an iron piece on the road. The horses were startled and one of them was injured. The plaintiff company filed a suit against the defendant and claimed Rs 350 as damages. The defendant claimed immunity of the crown and contended that the action was not maintainable. The High court of Calcutta held the action against the defendant was maintainable and awarded the damages.
In State of Rajasthan v. Vidhyawati a jeep was owned and maintained by the state of Rajasthan for the official use of the collector of a district. Once the driver of the jeep was bringing it back from the workshop after repairs. By his rash and negligent driving of the jeep a pedestrian was knocked down. He died and his widow sued the driver and the state for damages.
A constitution Bench of the Supreme Court held the state vicariously liable for the rash and negligent act of the driver. The court after referring to the P&O Steam Navigation Co. did not go into the wider question as to whether the act was a sovereign act of not. But it held that the rule of immunity based on the English law had no validity in India.
In Kasturi Lal, a certain quantity of gold and silver was attached by police authorities from one R on suspicion that it was stolen property. It was kept in Government malkhana which was in the custody of a Head Constable. The Head Constable misappropriated the property and fled to Pakistan. R was prosecuted but acquitted by the court. A suit for damages was filed by R against the state for the loss caused to him by the negligence of police authorities of the State. The suit was tested by the state. Following the ratio laid down in P & O steam Navigation Co., the Supreme Court held that the State was not liable as police authorities were exercising 'sovereign functions'.
Thus, in State of Gujarat v. Memon Mahomed Haji Hasam, certain goods of the respondent were seized by the Customs Authorities under the provisions of the Customs Act, 1962, inter alia on the ground that they were smuggled goods. An appeal was filed against that order by the respondent. During the pendency of the appeal the goods were disposed of under an order by the Magistrate. The appeal filed by the respondent was allowed and the order of confiscation was set aside and the authorities were directed to return the goods. In an action against the Government, the supreme Court held that the Government was in a position of a bailee and was, therefore, bound to return the goods.
The concept of public accountability is a matter of vital public concern. All the three organs of the government viz. legislature, executive and judiciary are subject to public accountability. Public offices, big or small are sacred trusts. Every holder of public office is a trustee whose highest duty is to the people of the country. Every act of the holder of public office should be for public good. Emphasis now is on reviewability of every action of the state or its instrumentalities. All powers possessed by a public authority are for public good.
When illegal and unauthorized electric supply resulted in breaking of fire causing death and destruction of property it was held that the administration was liable to pay compensation. In Arvind Dattatraya Dhande v. State of Maharashtra, the Supreme Court set aside an order of transfer of police officer observing that the action was not taken in public interest but was a case of victimization of an honest officer at the behest of person interested to target such officials. It is most unfortunate that the Government demoralizes the officers who discharge in black marketing and contra banding liquor.
Personal liability.
A breach of duty gives rise in public law to liability which is known as misfeasance in public office. Exercise of power by ministers and public officers must be for public good and to achieve welfare of public at large. Wherever there is abuse of power by an individual he can be held liable. An action cannot be divorced from the actor. A public officer who abuses his official position can be directed to pay compensation damages or costs.
In Common cause A Registered society v. Union of India. The petroleum Minister made allotment of petrol pump arbitrarily in favor of his relatives and friends. Quashing the action the Supreme Court directed the Minister to pay fifty lakh rupees as exemplary damage to public exchequer and fifty thousand rupees towards costs.
It may, however, be stated that in a review petition, the Supreme Court applying totally wrong principles of criminal law (sections 405-09, India Penal Code), set aside the order of payment of damages holding that there was no finding recorded in the main judgment that an action of allotment of petrol pumps to 'Kiths and Kins' by the Minister was arbitrary, discriminatory and mala fide.
Judicial accountability
The doctrine of public accountability applies to judiciary as well. Every organ of the government is subject to criticism for its flaws and drawbacks and judicial institution is not an exception to it. An essential requirement of justice is that it should be dispensed as quickly as possible. It has been rightly said: "Justice delayed is justice denied." Delay in disposal of cases can, therefore, be commented. Whereas comment and criticisms of judicial functioning, on matters of principle, are healthy aids for introspection and improvement, the functioning of the Court in relation to a particular proceeding is not permissible. There should not be biased mind on account of 'judicial obstinacy'. All judicial functionaries must possess in flinching character to decide every case objectively and with an unbiased mind.
Even on administrative side, the judiciary must act judiciously.
A Judge cannot act in public controversies nor can he make disparaging remarks against the Chief Justice or against a Brother Judge.
The concept of public accountability is a matter of vital public concern. Al, the three organs of the government, viz. legislate, executive and judiciary are subject to public accountability.
Public offices, big or small, are sacred trusts. Every holder of public office is a trustee whose highest duty is to the people of the country. Every act of the holder of public office should be for public good. Emphasis now is on reviewability of every action of the State or its instrumentalities. All powers possessed by a public authority are for public good.
When illegal and unauthorized electric supply resulted in breaking of fire causing death and destruction of property, it was hold that the administration was liable to pay compensation. In Arvind Dattatraya Dhanade v. State of Maharashtra, the Supreme Court set aside an order of transfer of a police officer observing that the action was not tale in public interest but was a case of victimization of an honest officer at the behest of persons interested to target such officials. "it is most unfortunate that the Government demoralizes the officers who discharge their duties honestly and diligently and brings to book the persons indulging in black marketing and conrtabanding liquor."
In England, the Crown enjoys the common law privilege that it is not bound by a statute unless it is expressly named therein or is bound by necessary implication. This common law principle emanates from the royal prerogative that the King can do no wrong. The view is thus held that a statute enacted with the Crown's assent is made for the subjects only and that the Crown is outside its purview.
The Supreme Court in 1960 in Director of Rationing v. Corporation of Calcutta. The facts of the case were as follows: S. 386(1) (a) of the Calcutta Municipal Act, 1923 prohibited any person fro storing rice, flour, etc., in any premises without a license bring granted by the Calcutta Corporation. The Director of Rationing of the Food Department, West Bengal Government, was sought to be prosecuted by the corporation for storing these commodities without a license. The question for consideration arose whether the government was bound by s. 386(1) (a). Answer to this question depended on the answer to another question, viz., whether the rule that the state was not bound by a statutory provision which depended on the concept of monarchy could still apply in the republican India. The Supreme Court held by majority that the old rule continued and that the state would not be bound by a statute unless it was so laid down in express terms in the statue or unless that result arose by necessary implication.
GOVERNMENT PRIVILEGE NOT TO PRODUCE DOCUMENTS
The government has privilege not produce its unpublished record in courts. S. 123 of the Evidence Act, 1872, provide:
No one shall be permitted to give any evidence derived from unpublished official records relating to any affairs of State, except with the permission of the officer at the head of the department concerned, who shall give or withhold such permission as he thinks fit.
This provision gives a great advantage to the government in any litigation between it and any private person for it can withhold a document which may be material and relent to the case. If the government is allowed to exercise unchecked its privilege to withhold documents from the courts in the name of secrecy, security or national interest, then it possible for it to use this power to serve its own ends, e.g. to defeat even the legitimate claims of the other party, or avoid adverse impact on itself, its ministers or the departmental heads.
Let us consider some important decisions on the point:
State of Punjab v. Sodhi Sukhdev Singh is the leading case on the subject One S, a District and Sessions Judge was removed from service by the President of India. In pursuance of the representation made by him, he was re-employed. Thereafter, he filed a suit for declaration that the order of removal was illegal, void and inoperative. He also claimed arrears of salary. He filed an application for production of certain documents. The State claimed privilege. The Supreme Court by majority held that the documents in question were protected under Section 123 of the Evidence Act and could be withheld from production on the ground of public interest.
In Amar Chand v. Union of India, the Supreme Court reiterated the principle laid down in Sodhi Sukhdev Singh. There, A had filed a suit against the Government for recovery of certain amounts. During the course of he trial, A called upon the defendants to produce certain documents. The defendants claimed privilege. Following Shodhi Sukhdev Singh, the Supreme Court rejected the claim of the defendants.
DOCTRINE OF ESTOPPEL
The doctrine of estoppel is well settled in Administrative law and Constitutional Law. It has been accepted in various legal systems. It is called 'promissory estoppel', 'equitable estoppel', or 'new estoppel'. It is a principle evolved by importing equity into law.
Meaning
Stated simply, estoppel is a bar which prevents a party from prevents a party from asserting a fact of putting up claim inconsistent with the position he previously took either by words or by conduct, it is thus a rule which precludes a person from saying one thing at one stage and another thing, totally inconsistent with the earlier one, at another stage.
Essential elements
Estoppel is a complex legal notion, involving a combination of several essential elements - statement to be acted upon, action on the faith of it, resulting in detriment to the actor.
Before doctrine of estoppel can be pressed into service and benefit thereof is claimed, the following conditions must be fulfilled:
(i) A representation or conduct amounting representation must have been made;
(ii) The other party to whom representation was made have acted upon such representation; and
(iii) He must have acted to his detriment or suffered as a result of such representation.
There are three distinct phases in the development of the doctrine of estoppel, viz. the position before Anglo-Afghan; Anglo-Afghan and after, Motilal Padamput and after.
(a) Phase I: Before Anglo-Afghan
The judicial opinion consistently took the position that no estoppel would apply against the Government in the matter of operation of a statue. Thus, the Patna High Court stated that admissions made by Government servants under a misapprehension with regard to any legal consequence as to the true interpretation of law would not bind the Government. In Amar Singh v. State of Rajasthan, the Supreme Court refused to apply estoppel against the Government in the following fact situation: the collector gave an assurance that the jagir of the petitioner would not be acquired during her lifetime under the Rajasthan Land Reforms Act, 1952. Later the Government initiated resumption proceedings against the petitioner. The petitioner argued that the Government was stopped from going back on the assurance and undertaking given by it earlier. Refusing to accept the plea, the Supreme Court stated that the assurance would not bind the Government because "its powers of resumption are regulated by the statute, and must be exercised in accordance with its provisions. The Act confers no authority on the Government to grant exemption from resumption, and an undertaking not to resume will be invalid, and there can be no estoppel against a statute.
In Municipal Corporation of the City of; Bombay v. Secretary of State. The Bombay High court held that even in the absence of a formal contract as required by the statute, the Government could be bound by a representation made by it. In this case, the Government of Bombay wanted to requisition some land on which stood a municipal fish and vegetable market. The municipality offered to remove the structures it the Government would agree to rent to it other land at a nominal rent. The Government accepted the suggestion and by a resolution dated December 9, 1865, sanctioned the site for establishing the new market and also agreed not to charge any rent from the municipality for the land in question. The municipality constructed the market thereon. Twenty four years later, the Government served notice on the municipality determining the tenancy and asking it to deliver possession of the land occupied by the market, and to pay in the meantime rent at a specified sum.
b) Phase II: Angol Afghan and after
In Union of India. V. Anglo afghan Agencies Ltd. The Supreme Court applied promissory estoppels against the Government on equitable grounds. The central Government notified in the Gazette an export promotion scheme under which an exporter of wollen textiles and goods was to be entitled to import raw materials equal to 100 per cent of the FOB value of exports. In case the Textile Commissioner considered that the declared value of the goods exported was higher than the real value of the goods, he could investigate the matter, assess the correct value of the goods exported, and issue an entitlement certificate accordingly. In the instant case, an exported claimed to have exported goods worth 5 laces of rupees. The Textile Commissioner issued to him an export entitlement of only 1.99 laces. He did not give any opportunity of hearing to the exporter. The exporter challenged the order of the Textile Commissioner. The Centre Government resisted the exporter's claim by arguing that the scheme was merely administrative in nature and, therefore, created no rights in the exporter and cast no obligation on the Government to issue the import license to him. The court rejected the Government's contention and held that the scheme was binding on the Government and that the exporter was entitled to get the benefit promised by it. Assuming that the scheme in question had no statutory force and was merely executive in character, the Government was not entitled at its mere whim to ignore the promises made by it. The court refused to accept the plea that the Textile Commissioner was the sole judge of the sole judge of the quantum of import license to be grants to an exporter, and that the courts were powerless to grant relief, if the promised import license was not given to an exporter who had acted to his prejudice relying upon the representation.
The court made the following pithy observation: "Under our jurisprudence the Government is not exempt from liability to carry out the representation made by it as to its future conduct and it cannot out the promise solemnly made by it, nor claim to be the judge of its own obligation to the citizen or an ex prate appraisement of the circumstances in which the obligation has arisen.
c) Phase III: Resurrection of Estoppel
Motilal Padampat:- in motilal Padampat Sugar Mills V. State Of Uttar Pradesh, the doctrine found its most eloquent exposition. Here the Government of Uttar Pradesh gave an assurance through a statement published in the newspapers, and also individually to the petitioners, that new industrial units in the State would be exempt from sales tax for a period of three years to enable them to find firm footing in the development stage. Acting on this assurance, the petitioners established a mill in the state. Later, the Government retracted its assurance and sought to impose sales tax on the petitioners on the ground of equity. The Government had made a categorical representation knowing or intending that it would be acted upon by the appellants and since they did act upon the representation and altered their position, the factual basis for setting up the doctrine of promissory estoppels was present and the Government was bound to make good the representation made by it.
d) After Motilal Padampat
But the impact of Motilal Padampat was diluted by Jit Ram Shiv Kumar v. State of Haryana. The Municipal Committee of Bahadurgah established a mandi at Fateh. The committee resolved in 1916 that the purchasers of the plots in the mandi would not be required to pay octroi duty on goods imported within the mandi. Handbills were distributed for the sale of plots on this basis. In 1917, the committee passed another resolution immunizing the mandi from payment of octroi for ever. This State of affairs continued till 1953. in 1954, the committee reiterated the same position in a resolution and the State Government confirmed the resolution. Thereafter, the committee changes its mind and resolved to levy octroi in the mandi, but the State Government annulled this resolution. In 1965, again the committee resolved to levy the octroi and this time the Haryana Government approved the resolution. There upon, the committee stated charging octroi duty on the goods imported into the mandi. The petitioners challenged the committee's resolution and Government's sanction as illegal, ultra vires and without jurisdiction. The court ruled that the action of the Government could not be questioned because
i) It was in exercise of its statutory functions and the ples of estoppel was not available against the State in the exercise of its legislative or statutory functions; and, further,
ii) Even on facts, the plea of estoppels was not available as against the Government as it made no representations to the petitioners. The court also ruled than the municipality could not estopped from levying octroi in the market on the basis of its earlier resolution was ultra vires its powers. "When a public authority acts beyond the scope of its authority the plea of estoppel is not available to prevent the authority from acting according to law. It is in public interest that no such plea should be allowed.
UNIT V
In the modern democratic world, not all trade, commerce or business activity is left to private enterprise. In every country to some extent, Government also participates in this activity. In India, the trend of Government entering into business and industrial activities, has been on the increase since the independence. To-day the public enterprises play a pivotal role in the economy of the country. This development has been facilitated by certain constitutional provision and economic policies. As regards that Constitution for example, Art, 298 extends the executive power of the Center and the States to carrying on any trade or business.
The Industrial Policy Resolution of 1956, defining the role of the Government in the economic affairs of the country, laid down that all industries of basic and strategic importance, or in the nature of public utility services, should be in the public sector.
Since 1950 has been to make the public sector dominant vis-à-vis the private sector. This has some of the existing private sector enterprises and establishing monopoly position for the State in some areas. Thus, air transport was nationalized in 1953; in 1956, life insurance business was taken over by the Government form private hands; and in 1969, fourteen commercial banks were nationalized. General insurance and coal mines were nationalized in 1972 and 1973 respectively.
In India, public corporations may be classified into four 'ill-assorted' main groups:
i) Commercial corporations;
ii) Development corporations;
iii) Social services corporations
iv) Financial corporations
i) Commercial corporations
This group includes those corporations which perform commercial and industrial functions. The managing body of a commercial corporation resembles the Board of Directors of a public company. As their functions are commercial in nature, they are supposed to be financially self-supporting and they are also expected to earn profit.
ii) Development corporations
The modern State is a 'Welfare State'. As a progressive State, it exercises many non-sovereign functions also. Development corporations have been established with a view to encourage national progress by promoting developmental activities. As they arena commercial undertakings, they may not be financially sound at the initial stage and may require financial assistance from the Government. Oil and Natural Gas Commission (now corporation), Food Corporation of India.
iii) Social service corporations
Corporations which have been established for the purpose of providing social services to the citizens on behalf of the Government are not commercial in nature and therefore, are not expected to be financially self-supporting. In fact, as their object is to render social service, they are not required to conduct their affairs for the purpose of earning profits.
iv) Financial corporations
This group includes financial institutions, like Reserve Bank of India, State Bank of India, Industrial Finance Corporation of India, Life Insurance Corporation of India and Film financing Corporation. They advance loans to institutions carrying on trade, business or industry o such terms and conditions as may be agreed upon. They may provide credit to those institutions which find it difficult to avail of the same or which do not find it possible to have recourse to capital issue method.
A Government company or a statutory corporation is regarded as a distinct or separate entity from the government. Though a Government company is owned by the government; its directors are nominated or removed by it, and the company has to give effect to the directives issued by the Government, nevertheless, in the eye of the law, the company or the corporation is regarded as distinct personality having an existence and a juristic personality of its own, separate form the concerned government. In the eye of the law, the company is its own master and it cannot be regarded as an agent of the Government any more than a company can be regarded as an agent of the shareholders. A public Corporation is a Corporation formed for public purpose e.g. local Government authorities.
In State Trading Corporation v. Commercial Tax Office,
The question was raised whether the state Trading Corporation notwithstanding the formality of its incorporation under the Companies Act, was in substance a department and organ of the Central Government? Hidayatullah J answered this question in the negative. He pointed out that none of the shareholders holds his shares for his personal beneficial enjoyment none of them has paid for the share or shares held by him. The administration of the affairs of the corporation though technically a company is the concern of the Central Government. The legal and beneficial ownership of the corporation vests in the Government of India. if the veil of the corporation is pierced one would see the Government of India behind it. But he said that it was not permissible to tear the veil. The corporation was to be regarded as a separate entity from the government.
GOVERNMENT CONTROL
The Government exercises control over public undertakings through various means, such as, appointment to top positions and removal of persons from those positions; appointment of ministerial representatives on the board of management; issue of directives and orders by the ministry concerned, and approval of specific actions and policies of the board of an undertaking by the ministry. In the case of all public undertakings, Government exercises power to appoint and remove, the chairman, director of members of the board and the managing Director. Appointment of senior executive officers in theses enterprises is also to some extent controlled by the government.
PARLIAMENTRY CONTROL
It is for parliament to ensure that these enterprises are run efficiently and monopoly condition do not tempt an undertaking to exploit the consumer. Though parliamentary accountability of these enterprises is called for, yet it has to be balanced with the requirements of autonomy and initiative of these undertakings.
All statutory corporation owe their existence to their constituent statutes which are enacted by parliament. It is for parliament to dentine in the constituent statute the powers of the corporation and the degree of independence it is allowed to enjoy.
Members of the two Houses of Parliament put questions to ministers to elicit information on important matters. Since ministers have full control over departments in their charge, questions can be asked of them with respect to any mater of detail concerning their departments.
Parliament is too large and busy body to be able to probe adequately into the details of the working of public enterprise. It cannot also examine senior officials who advise ministers in the matter of formulation of Government policies pertaining to these undertakings or who themselves take decisions on various issues relating to them. In order to make its control over Government undertakings somewhat meaningful, parliament has constituted the Committee on Public Undertakings.
The committee came into existence on May 1, 1964, in pursuance of a resolution passed by the Lok Sabha on November 20, 1963. it combines within itself the function of both the Estimates Committee and the Public Accounts Committee with respect to public undertakings. It consists of 22 mimbers-15 from the Lok Sabha and 7 from the Rajya Sabha. The members are elected every year by each House according to the principle of proportional representation by means of a single transferable vote. A minister cannot be a member of the committee. The chairman is appointed by the Speaker from amongst the members. The functions of the committee are:
a) To examine the reports and accounts of the specified public undertakings
b) To examine the reports, if any, of the Comptroller and Auditor-General on the public undertakings
c) To examine, in the context of the autonomy and efficiency of the public undertakings, whether their affairs are being managed in accordance with sound business principles and prudent commercial practices
d) To examine such other functions vested in the Public Accounts Committee and the Estimates Committee in their relation to the specified public undertakings as are not covered by clauses (a),(b) and (c) above, and as may be allotted to the committee by the Speaker from time to time.
JUDICIAL CONTROL
Public undertakings are subject to judicial control as well. These numerous undertakings occupy a place of crucial importance in the country both administratively as well a economically. The main problem therefore id to keep these variegated bodies under some semblance of judicial control and to bring these bodies under the discipline of public law.
Traditionally, judicial control on corporations is exercised through the doctrine of ultra vires which is also applied in case of public limited companies. A statutory corporation has to act, like any enter company, within the terms of its memorandum of association. Therefore, if a corporation exceeds its authority, the court may declare its action as ultra vires.
Ombudsman:
Historical development of Omudsman in India.
Ombudsman is an institution or public official appointed to investigate citizen complaint against government agencies.
In India , the Ida of an independent authority for working into citizens grievances really originated as part of the search for solution to the growing corrupt practices in the fifties.
In 1952, there was animate discussion in parliament on various fact of the problem of corruption in government at the time of consideration of the prevention of corruption bill, the criminal law amendment bill, and the commission of enquiry bill.
The demand of the independent agency to enquire into complaints of corruption prevalent at the higher level ( which was the forerunner to the proposal for ombudsman type of institution in India) . was for the time formally and authoritatively by the then chairman of UGC and former minister of finance asked for the establishment of a higher level , impartial , standing judicial tribunal to investigate and report on complaints are lying of information and further promised a that if such a tribunal was set up. " I shall be happy to make a beginning by lodging half a dozen report myself. Later on in this private e corresponding with Pt. Jawaharlal Nehru, the then P.M of India , the Desh much was willing to divulge the information only before and independent judicial tribunal , if one was set up for the purpose.
Then after public opinion and parliamentary debate has been focused increasingly on the desirability of setting up of effective missionary to look into the grievances of individuals against the administration. but Pt.Nehru opposed the formation of such a tribunal , at a press conference on 8 January 1960 , and also in parliament. On the grounds that such a tribunal should be repugnant to democratic practice and would create and atmosphere of distrust and mutual accusation. He suggests the appointment of a judge for looking into the allegation make by Dr.Deshmuch.
The importance of such machinery was urged by third all India law conference held on 12-14 August 1962, during the debate the minister of law , Dr.L.M.Singhvi, stressing the need for the setting up of an ombudsman institution.
In October 1963, the madras provincial bar asocial supported the creation of institution of the ombudsman for India. In September 1963 the administrative reform committee of Rajasthan recommended appointment of a n ombudsman to look into the complaint against high court official and ministers.
Addressing the all India congress committee on the working of the kamaraj plan at jaipur on 3 November 1963 , the late P.M , Mr.Pt.Nehru welcome the idea of the ombudsman who shout have the authority to deal with the charges the P.M and command respect and confidence from all.
The appointment of an independent officers of parliament known as ombudsman, which could deal with the public grievance , for eradicating corruption at all level . For redressing administrative wrong and excesses. , for securing the liberties of citizen's and generally for strengthening the basic foundation of parliamentary democracy as a system of government was urged in a private members resolution by Dr.L.M.Singhvi in loksabha in April 1964. Dr. Sighvi moved second time a resolution in the loksabha for setting up an ombudsman.
The loksabha discussed the resolution on the 3rd April and 22dn April 1964. During the course of debate all sections of the house expressed support to the proposal. However the resolution was withdrawn by Dr. Singvi on an assurance given by the minister of the state Home affairs that the government would get the entire matter investigated in full detail.
In pursuance of a demand made in parliament the Government of India constituted a special consultative group of members of parliament in early 1965 on administrative reforms. At it fourth meeting held on 8-9 June 1965, the group appointed 3 sub-committee with specific reference to public grievance.
THE INSTITUTION OF LOKPAL
Section 3 of the lokpal bill deals about the establishment of lokpal.
The lokpal shall consist of-
a) A chairperson who is or has been a chief justice or a judge of the Supreme Court.
b) Two members who are or have been the judges of the Supreme Court or the chief justice of the high courts.
The chairperson and other members shall be appointed by the president by warrant under his hand and seal. Provided that every appointment under this section shall be made after obtaining the recommendation of a committee consisting of-
a) the vice president of India
b) the prime minister
c) the minister in charge of the ministry of home affairs in the Government of ;India
d) the leader of the house other then the house in which the prime minister is a member of parliament.
e) The speaker of the house of the people
f) The leader of the opposition in the house of the people
g) The leader of the opposition in the council of state
Term of office.
The chairperson and every other member shall hold office as such for a term of 3 years from the date on which he enters upon his office or until he attains the age of seventy years whichever is earlier.
Provide that he may-
a) by writing under his hand addressed to the president , resign his office, or
b) be removed from his office except by an order made by the president on the ground of proved misbehavior or incapacity after an inquiry made by a committee consisting of the chief justice of India and two other judges of the Supreme court.
Salary and Allowance
The salary, allowance and other conditions of service of-
a) The chairperson shall be the same as those of the chief judge of India
b) Other members shall be the some as those of a judge of the Supreme Court.
Power and function of lokpal
The lokpal Bill confers certain power and the function of lokpal in matter of corruption are-
1) if the lokpal has reason to believe that any document which in its opinion will be useful for or relevant to, any inquiry under this Act, are secreted in any place, it may authorize any officer subordinate to it, or any officer of an investigating agency referred to search for and to seize such documents.
2) Whoever intentionally offers any insult, or causes any interruption to the lokpal while the lokpal or any of its members is making any verification or conducting any inquiry under this Act. The lokpal may cause the offender to be detained in the offence and after giving the offender a reasonable opportunity of showing cause why he should not be punished under this section, and sentence him to simple imprisonment for a term which may extend to one month, or with fine which may extend to five hundred rupees or with both.
3) No suit, prosecution or other legal proceeding shall lie against the lokpal or against any officer, employee, agency or person in respect of anything which is in good faith done or intended to be done under this Act..
4) Lokpal shall have all the powers of a civil court while trying a suit under the code of civil procedure, 1908. in respect-
i) Summoning and enforcing the attendance of any person and examine him on
oath.
ii) Requiring the discovery and production of any document.
iii) Receiving evidence on affidavits.
iv) Requisitioning any public record or copy thereof from any court of office.
v) Issuing commission for the examination of witnesses of document, and
vi) Such other matters as may be prescribed.
5) The lokpal after completion of the investigation finds a complaint proved or partly proceed, shall submit a report to the prime minister. The lokpal shall present annually to the president a consolidated report.
6) The president may, by order in writing and subject to such condition or limitation as may be specified in the order, require the lokpal to inquire into any allegation specified in the order in respect of a public functionary.
INSTITUTION OF LOKAYUKTA
The Administrative Reform commission suggested in 1966 for appointment of a lokpal at the center and lokayukta in each of the state. The commission submitted its interim report. The report contains recommendations for the setting up of two institutions to be designed as lokpal and lokayukta. The lokayukta one to be appointed in each state and one at the center, will look ink complaints against the administrative acts of other authorities. But even after a lapse of so many years, nothing has been done substantially at the central level. However many states have adopted this institution.
Appointment of lokayukta
For the purpose of conduction investigations and enquiries in accordance with the provisions o f this Act, the Governor shall appoint a person to be known as the lokayukta and one or more Upalokayukta
Term of Office
A person appointed as the lokayukta or upalokayukta shall hold office for a term of 5 years from the date of which he enters upon his office.
Provided that-
a) the lokayukta or an upalokayukta may be wariting under his hand addressed to the governor, resign him office.
b) The lokayukta or an upalokayukta may be removed form office by an order of the government passed after an address by each House of the state legislature supported by a majority of the total membership of that house present and voting has been presented to the Governor in the same session for such removal on the ground of proved misbehavior or in capacity
Salary and allowances :
The lokayukta and the upalokayukta shall be the same salary as those of the chief justice of a high court and that of a judge of the high court respectively. In prescribing the allowance payable to and other conditions of services of the lokayukta and upalokayukta , regard shall be had to the allowances payable to and other conditions of service of the chief justice of high court , and that of a judge of the high court respectively.
Power and functions of Lokayukta :
1. For the purpose of any such investigation the lokayukta or an upalokaukta shall have all the powers of the civil court while trying a suit under the code of civil procedure 1908
2. Power to punish for contempt. the lokayukta or an upalokayukta shell have the same jurisdiction , powers and authority in respect of contempt of itself as a high court has an may exercise and for his purpose the provision of the contempt of court act 1971shall have effect to the modification that the reference therein to the high court shall e construed as including the a reference tot the lokayukta or upalokyukta as the case may me.
3. Power to Prosecution: if after investigation into any complaint the lokayukta or upalokayukta is satisfied that the public servant has committed any criminal offence in a court of law for such offence , then he may pass an order to that prior sanction of any authority is required for such prosecution, then notwithstanding anything contained in any law, such sanction shall be deemed to have been granted by the appropriate authority on the date of such order
4. power to search and seize : lokayukta and upalokayukta have power to the following:
a) Enter and search any building or place where he has reason to suspect that properly , documents , money , bullion , jewelry or other valuable article or things is kept.
b) Break open the lock any door any box , locker, safe, almirah or other receptacle for exercising , the powers conferred only where the keys thereof are not available .
c) Seize any such property, document, money , bullion , jewelry or other valuable article or thing found as a result of such search.
d) Place marks of identification on any property or document or make or cause to be made extracts or copies there form.
5) After, Investigation of any action involving a grievances has been made, the lokayukta or an uplokayukta is satisfied that such action has resulted in injustice or undue hardship to the complaint or to any other person the lokayukta or an upalokyata shall be a report in writing , recommend to the competent authority concerned that such injustice or hardship shall be remitted or redressed in such manner and within such time as may be specified in the report. Lokayukta may make a special report upon a case to the governor and also inform the competent authority concerned and the complainant.
A serious problem afflicting the Indian polity is that of corruption in the administration. This distorts the decision making process ;by the administration and gives rise to all kinds of vices. Incorruptibility is an essential requirement for public confidence in the administration of Government departments. A word may therefore be said on the subject of law and the machinery to fight administrative corruption.
To strengthen the existing mechanism for checking corruption amongst Government servant the central vigilance commission was created in February 1964 by a resolution of the Government of India. The commission was established as a result of the recommendation of the committee on prevention of corruption which was appointed in 1962. The committee had recommended that the commission should be concerned with two major problems facing the administration namely a) prevention of corruption and maintenance of integrity amongst Government Government servants and b) ensuring just fair exercise of administrative powers vested in various authorities by statutory rules or by non-statutory executive orders. Thus, the committee had recommended two major matters to come with the purview of the commission, that is cases of corruption and cases involving maladministration . The Government accepted the recommendation of the committee as regards corruption but not maladministration, because the latter problem was big enough to require a separate machinery by itself.
Anti-Corruption Provision in the Indian penal code 1860
Section 161:- Public servant taking gratification other then other legal remuneration in respect of an official act
Section 162:- Taking gratification in order by corrupt or ;illegal means to influence public servant
Section 164;- Punishment for abetment by public servant of offences defined in section 162 or 163.
Section 165:- Public servant obtaining valuable thing, without consideration from person concerned in proceeding or business transacted by such public servant.
Section 165 "A" Punishment for abetment of offences defined in section 161 or 165.
Legislative development on corruption
The prevention of corruption Act 1947 was the first specific legislation on corruption. Till 1947 there is no specific Act in India on Corruption. Where as it is expedient to make more effective provision for the prevention of bribery a corruption. For the purposes of this Act public servant means a public servant as defined in section 21 of the Indian penal code 1860.
In 1988 the Indian parliament replaced the legislation on corruption. This Act be called the prevention of corruption Act 1988. It extends to whole of India except the state of Jammu and Kashmir and it applies also to all citizens of India, out side India, this Act is divided into Vth chapter and it has 31 section regarding to prevention of corruption.
Our aim is to provide a new technology in Education, building professional management structure and molding the physical talents in the field of sports, making our institutions to be first choice of students in India and our union helps you to purpose Education of greater quality to meet the challenge globally.
Our group of Institutions strives to provide an apt platform for our students to portray their varied talents to the fullest extent by imparting quality and comprehensive Education. Our aim is to help every student to discover and realize their potentials.