CS Executive JIGL Revision Notes

CS Executive JIGL Revision Notes – Chapter 1 – Administrative Laws

CS Executive JIGL Revision Notes

ADMINISTRATIVE LAWS

CS Executive JIGL Revision Notes
Administrative Laws means laws related to

  • administration of public (including a small section of public)
    • by different organs of government (state)
      • with the main object of betterment of Society.
Kind of Powers
Kind of Powers

In the modern society, the role of Executive Authorities are not limited to implement the laws made by Legislatures. Executive Authorities or we can say administrators can understand the problems of society better than law makers. They are the persons who deal with the problems faced by public in complying laws.

Laws created by Legislatures cannot provide solutions for all problems. The legislature is unable to come up with the required quality and quantity of legislations because of limitations of time, the technical nature of legislation and the rigidity of their enactments.

Further, it will be quite expensive to call legislatures for every small problem. It is not practical too.

Also, large powers are conferred on administrative organs, therefore effective control-mechanism be also evolved so as to ensure that the officers do not use their powers in an undue manner or for an unwarranted purpose.

Therefore, administrators are required

  • to make rules and regulations to regulate the public or a section of the public
  • to make procedures for complying the laws
  • to issue guidance and circulars

The goal of administrative law is to ensure that the individual is not at receiving end of state’s administrative power and in cases where the individual is aggrieved by any action of the administration, he or she can get it redressed.

CS Executive JIGL Revision Notes

Definitions of Administrative Laws

Kenneth Culp Davis (American legal scholar)
The law concerning the powers and procedures of administrative agencies, including especially the law governing the judicial review of administrative action. An administrative agency is a government authority, other than a court and other than a legislative body, which affects the rights of private parties either through adjudication or rule-making. According to him, the manner in which public officials handle business unrelated to adjudication or rule-making is not a part of administrative law.

This definition also does not cover purely discretionary functions which may be called (administrative) of administrative agencies not falling within the category of legislative or quasi-judicial.

Albert Venn Dicey (British constitutional scholar)
Administrative law relates to that portion of a nation’s legal system which determines the legal status and liabilities of all state officials, which defines the rights and liabilities of private individuals in their dealings with public officials, and which specifies the procedure by which those rights and liabilities are enforced.

This definition is narrow as it leaves out of consideration many aspects of administrative law, e.g., Public Corporations would not be covered under this definition because, strictly speaking, they are not state officials.

Ivor Jennings
Administrative law is law relating to administration. It determines the organization, powers and duties of administrative authorities.

This formulation is too broad and general as it does not differentiate between administrative and constitutional law. It excludes the manner of exercise of powers and duties.

CS Executive JIGL Revision Notes

Sources of Administrative Law

There are four principal sources of administrative laws in India
1.   Constitution of India

  • It is the primary source of administrative law in India.
  • According to Article 73 of the COI, the executive power of the Union shall extend to matters with respect to which the Parliament has power to make laws.
  • According to Article 162 of the COI, the executive power of a State shall extend to the matters with respect to which the Legislature of the State has power to make laws.

2. Acts/ Statutes
Where required, Acts/Statutes provide for the establishment of Administrative Authority for the purpose of proper implementation of law.

These Acts list the responsibilities of the administration, limit their power in certain respects and provide for grievance redressal mechanism for the people affected by the administrative action.

3. Ordinances
When legislature is not in session, ordinances may be issued by President/Governor for granting powers to Administrative Authorities

4.  Judicial decisions
In India, Supreme Court & High Courts may direct an Administrative Authority to take administrative action and make proper procedures.

Administrative Discretion

It means the freedom of an administrative authority to choose from amongst various alternatives but with reference to rules of reason and justice and not according to personal whims. The exercise of discretion should not be arbitrary, vague and fanciful, but legal and regular.

Fact: Administration discretion is prone to abuse.
SolutionThere shall be a system to ensure that administrative discretion is exercised in the right manner.

Judicial Control over Administrative Actions
In India the modes of judicial control of administrative action can be conveniently grouped into 3 heads:

  • Constitutional Controls
  • Statutory Controls
  • Ordinary or Equitable Controls

Constitutional Controls

In India, a law is valid only if it is constitutional. Supreme Court has the power to review any law. This process is called Judicial Review. Thus, Judicial Review is the authority of Court (Highest Court) to declare void the acts of the legislature and executive, if they are found in violation of provisions of the Constitution.

If a law is found in violation of the Constitutional provisions, the Court shall declare it unconstitutional and therefore, void.
Note:

  • The doctrine of judicial review has been originated and developed by the American Supreme Court, although there is no express provision in the American Constitution for the judicial review.
  • The judicial review is not an appeal from a decision but a review of the manner in which the decision has been made.
  • The judicial review is concerned not with the decision but with the decision making process.

In Mansukhlal Vithaldas Chauhan v State of Gujarat, the Supreme Court held that while exercising the power of judicial review court shall not try to substitute its own decision. Court is to confine itself to the question of legality. Its concern should be whether a decision making authority

  1. exceeding its power?
  2. committed an error of law?
  3. committed a breach of rules of natural justice?
  4. reached a decision which no reasonable tribunal would have reached, or
  5. abused its power?

Judicial review is exercised at two stages:

  • at the stage of delegation of discretion, and
  • at the stage of exercise of discretion.

Judicial review at the stage of delegation of discretion
Where discretionary powers are delegated to the authorities with reference to the fundamental rights given in the Indian Constitution, court may, by judicial review, exercise control over such delegation.

There have been a number of cases in which a law, conferring discretionary powers, has been held violative of a fundamental right.

Administrative Discretion and Article 14

    • Article 14 of the Constitution says that “the State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India”.
    • But Article 14 does not forbid classification or differentiation which rests upon reasonable grounds of distinction. The classification may be founded on different basis, such as, geographical, or according to objects or occupation or the like.
    • What is necessary is that there must be a nexus between the basis of classification and the object of the Act under consideration.
    • It means persons, who are different from others on some reasonable basis, can be treated differently.

In a number of cases, the statute has been challenged on the ground that it conferred on an administrative authority wide discretionary powers of selecting persons or objects discriminately and therefore, it violated Article 14.

In State of West Bengal v. Anwar Ali, Supreme Court held that

  • Where no yardstick or measure is prescribed in the Act for the grouping either of persons or of cases or of offences so as to distinguish them from others outside the purview of the Act, it violated Article 14 of the Constitution and therefore unconstitutional.
  • Moreover, the necessity of “speedier trial” was held to be too vague, uncertain and indefinite criterion to form the basis of a valid and reasonable classification.

Administrative Discretion and Article 19
Article 19 guarantees certain freedoms to the citizens of India, but they are not absolute. Reasonable restrictions can be imposed on these freedoms under the authority of law. The reasonableness of the restrictions is open to judicial review.

Dr. Ram Manohar v. State of Delhi
D.M. was empowered under East Punjab Safety Act, 1949 to make an order of externment from an area in case he was satisfied that such an order was necessary to prevent a person from acting in any way prejudicial to public peace and order.

Supreme Court upheld the law on the following grounds:

  • the law in the instant case was of temporary nature and
  • it gave a right to the externee to receive the grounds of his externment from the executive.

Hari v. Deputy Commissioner of Police
According to section 57 of the Bombay Police Act, any of the officers specified therein are authorised to extern convicted persons from the area of his jurisdiction if he had reasons to believe that they are likely to commit any offence similar to that of which they were convicted.

This provision of law was upheld by Supreme Court because certain safeguards are available to the externee, i.e.,

  • the right of hearing and
  • the right to file an appeal to the State Government against the order.

H.R. Banthis v. Union of India, 1979
The Gold (Control) Act, 1968, provided for licensing of dealers in gold ornaments. The Administrator was empowered under the Act to grant or renew licenses having regard to the matters, interalia,

  • the number of dealers existing in a region,
  • anticipated demand,
  • suitability of the applicant and
  • public interest.

The Supreme Court held that all these factors were vague and unintelligible.

  • The term ‘region’ was nowhere defined in the Act.
  • The expression ‘anticipated demand’ was vague one.
  • The expression ‘suitability of the applicant and ‘public interest’ did not contain any objective standards or norms.

Judicial review at the stage of exercise of discretion
The courts in India have developed various formulations to control the exercise of administrative discretion, which can be grouped under two broad heads, as under:

  1. Authority has not exercised its discretion properly- ‘abuse of discretion’.
  2. Authority is deemed not to have exercised its discretion at all- ‘non-application of mind.

(a) Abuse of discretion

  1. Mala fides: If the discretionary power is exercised by the authority with bad faith or dishonest intention, court may interfere.

    Case Law:
    In Tata Cellular v. Union of India, the Supreme Court has held that

      • The right to refuse the lowest or any other tender is always available to the Government but the principles laid down in Article 14 of the Constitution have to be kept in view while accepting or refusing a tender.
      • There can be no question of infringement of Article 14 if the Government tries to get the best person or the best quotation.
  2. Irrelevant considerations: If the administrative authority takes into account factors, circumstances or events wholly irrelevant or extraneous to the purpose mentioned in the statute, then the administrative action is not valid.
  3. Leaving out relevant considerations: The administrative authority exercising the discretionary power is required to take into account all the relevant facts. If it leaves out relevant consideration, its action will be invalid.
  4. Arbitrary orders: The order made should be based on facts and reasoning and not on the whims and fancies of the adjudicatory authority.
  5. Improper purpose: The discretionary power is required to be used for the purpose for which it has been given. If it is given for one purpose and used for another purpose it will amount to abuse of power.
  6. Colourable exercise of power: Where the discretionary power is exercised by the authority on which it has been conferred ostensibly for the purpose for which it has been given but in reality for some other purpose, it is taken as colourable exercise of the discretionary power and it is declared invalid.
  7. Non-compliance with procedural requirements and principles of natural justice: If the procedural requirement laid down in the statute is mandatory and it is not complied, the exercise of power will be bad. Whether the procedural requirement is mandatory or directory is decided by the court. Principles of natural justice are also required to be observed.
  8. Exceeding jurisdiction: The authority is required to exercise the power within the limits or the statute. Consequently, if the authority exceeds this limit, its action will be held to be ultra vires and, therefore, void.

(b) Non-application of mind

  1. Acting under dictation: Where the authority exercises its discretionary power under the instructions or dictation from superior authority. The authority entrusted with the powers does not take action on its own judgment and does not apply its mind.
  2. Self-restriction: If the authority imposes fetters (self-imposed restrictions) on its discretion by announcing rules of policy to be applied by it rigidly to all cases coming before it for decision, its action or decision will be bad.
  3. Acting mechanically and without due care: Non-application of mind in issuing directions

CS Executive JIGL Revision Notes

Statutory Controls

The method of statutory review can be divided into two parts:

  1. Statutory appeals: Some Acts provide for an appeal from statutory tribunal to the High Court/Supreme Court on point of law.
  2. Reference to the High Court or statement of case: There are several statutes, which provide for a reference or statement of case by an administrative tribunal to the High Court.

Under Section 256 of the Income-tax Act, 1961 where an application is made to the Tribunal by the assessee and the Tribunal refuses to state the case the assessee may apply to the High Court and if the High Court is not satisfied about the correctness of the decision of the Tribunal, it can require the Tribunal to state the case and refer it to the Court.

Ordinary or Equitable Controls

1.Injunction
  • An injunction is a preventive remedy.
  • It is a judicial process by which one who has invaded or is threatening to invade the rights of another is restrained from continuing or commencing such wrongful act.
  • In India, the law with regard to injunctions has been laid down in the Specific Relief Act, 1963.
  • Injunction is issued for restraining a person to act contrary to law or in excess of its statutory powers.
  • An injunction can be issued to both administrative and quasi-judicial bodies.
  • Injunction may be prohibitory or mandatory.
(a)Prohibitory Injunction
Prohibitory injunction forbids the defendant to do a wrongful act, which would infringe the right of the plaintiff. A prohibitory injunction may be interlocutory or temporary injunction or perpetual injunction.
(1)

Interlocutory or temporary injunction

  • Temporary injunctions are such as to continue until a specified time or until the further order of the court. (Section 37 for the Specific Relief Act).
  • It is granted as an interim measure to preserve status quo (existing state of affairs) until the case is heard and decided.
  • Temporary injunction may be granted at any stage of a suit.
  • Temporary injunctions are regulated by the Civil Procedure Code and are provisional in nature.
  • It does not conclude or determine a right. Besides, a temporary injunction is a mere order.
  • The granting of temporary injunction is a matter of discretion of the court.
(2)

Perpetual injunction

  • A perpetual injunction is granted at the conclusion of the proceedings.
  • It is definitive of the rights of the parties.
  • It need not be expressed to have perpetual effect.
  • It may be awarded
    • for a fixed period or
    • for a fixed period with leave to apply for an extension or
    • for an indefinite period terminable when conditions imposed on the defendant have been complied with.
(b)

Mandatory injunction

  • Mandatory injunction is an injunction which orders a party or requires them to do an affirmative act or mandates a specified course of conduct.
  • The mandatory injunction may be taken as a command to do a particular act to restore things to their former condition or to undo, that which has been done.
  • It prohibits the defendant from continuing with a wrongful act and also imposes duty on him to do a positive act.
2.

Declaratory Action

  • A declaratory decree declares the rights of the parties. In such a decree there is no sanction, which an ordinary judgment prescribes against the defendant.
  • By declaring the rights of the parties it removes the existing doubts about the rights and secures enjoyment of the rights.
  • It is an equitable remedy.
  • It is a discretionary remedy and cannot be claimed as a matter of right.
3.Action for damages
If any injury is caused to an individual by wrongful or negligent acts of the Government servant, the aggrieved person can file suit for the recovery of damages from the Government concerned.

CS Executive JIGL Revision Notes

Natural Justice

Everyone has right to be heard unbiasedly. To inspire confidence in the people in the judicial system, Justice must not only be done but also seen to be done.

Natural justice is a concept of Common Law and represents procedural principles developed by judges.

In India there are no precise rules to enforce Principles of Natural Justice. They are derived from Article 14 and 21 of the Constitution.

Principles of Natural Justice

Everyone has right to be heard unbiasedly. To inspire confidence in the people in the judicial system, Justice must not only be done but also seen to be done.

Natural justice is a concept of Common Law and represents procedural principles developed by judges.

In India there are no precise rules to enforce Principles of Natural Justice. They are derived from Article 14 and 21 of the Constitution.

1. Rule against bias (nemojudex in causa sua)

No one should be a Judge in his own case. A person cannot take an objective decision in a case in which he has an interest. The rule against bias has two main aspects-

  • one, that the judge must not have any direct personal stake in the matter at hand and
  • two, there must not be any real likelihood of bias.

Bias can be of the following three types:

a.Pecuniary bias: Any financial interest, howsoever small it would be.
b

Personal bias: A Judge may be friend or enemy of the party, or related to him through family, professional or business ties.

Mineral Development Ltd. V. State of Bihar
In this case, the petitioner company was owned by Raja Kamakhya Narain Singh, who was a lessee for 99 years of 3026 villages, situated in Bihar, for purposes of exploiting mica from them. The Minister of Revenue acting under Bihar Mica Act cancelled his license because Raja Kamakhya Narain Singh, had opposed the minister in general election of 1952 and the minister had filed a criminal case under section 500, Indian Penal Code, against him.

Since the personal rivalry between the owner of the petitioner’s company and the minister concerned was established, the cancellation order became vitiated in law.

Manek Lal v. Prem Chandu
Here the respondent had filed a complaint of professional misconduct against Manek Lal who was an advocate of Rajasthan High Court. The Chief Justice of the High Court appointed bar council tribunal to enquire into the alleged misconduct of the petitioner. The tribunal consisted of the Chairman who had earlier represented the respondent in a case. He was a senior advocate and was once the advocate- General of the State.

The Supreme Court held the view that even though Chairman had no personal contact with his client and did not remember that he had appeared on his behalf in certain proceedings, and there was no real likelihood of bias, yet he was disqualified to conduct the inquiry on the ground that justice not only be done but must appear to be done to the litigating public.

Actual proof of prejudice was not necessary; reasonable ground for assuming the possibility of bias is sufficient.

c.

Subject matter bias: A judge may have a bias in the subject matter, which means that he himself is a party, or has some direct connection with the litigation. To disqualify on this ground of bias there must be intimate and direct connection between adjudicator and the issues in dispute. To vitiate the decision on the ground of bias as for the subject matter there must be real likelihood of bias.

Such bias can be classified into four categories:

  1. Partiality or connection to the issue
  2. Departmental bias
  3. Prior utterances and pre-judgment of issues
  4. Acting under dictation

CS Executive JIGL Revision Notes

2. Rule of fair hearing (audi alteram partem)
Everyone has right to be heard. No one should be condemned unheard. It requires that both sides should be heard before passing the order. This rule implies that a person against whom an order to his prejudice is passed should be given information as to the charges against him and should be given opportunity to submit his explanation thereto. Following are the ingredients of the rule of fair hearing:
a.

Right to notice: Unless a person knows the case against him, he cannot defend himself.

  • The notice is required to be served on the concerned person properly. However, the omission to serve notice would not be fatal if the notice has not been served on the concerned person on account of his own fault.
  • The notice must give sufficient time to the person concerned to prepare his case. Whether the person concerned has been allowed sufficient time or not depends upon the facts of each case.
  • The notice must be adequate and reasonable.
  • The notice is required to be clear and unambiguous. If it is ambiguous or vague, it will not be treated as reasonable or proper notice.
  • If the notice does not specify the action proposed to be taken, it is taken as vague and therefore, not proper.
bRight to present case and evidence: The party against whom proceedings have been initiated must be given full opportunity to present his or her case and the evidence in support of it.
c.

Right to rebut (cross-check) adverse evidence: For the hearing to be fair the adjudicating authority is not only required to disclose to the person concerned the evidence or material to be taken against him but also to provide an opportunity to rebut the evidence or material.

  1. Cross-examination: Examination of a witness by the adverse party is called cross-examination. The main aim of cross-examination is the detection of falsehood in the testimony of the witness. The rules of natural justice say that evidence may not be read against a party unless the same has been subjected to cross-examination or at least an opportunity has been given for cross examination.
  2. Legal Representation: Ordinarily the representation through a lawyer in the administrative adjudication is not considered as an indispensable part of the fair hearing. However, in certain situations denial of the right to legal representation amounts to violation of natural justice. Thus where the case involves a question of law or matter which is complicated and technical or where the person is illiterate or expert evidence is on record or the prosecution is conducted by legally trained persons, the denial of legal representation will amount to violation of natural justice because in such conditions the party may not be able to meet the case effectively and therefore he must be given the opportunity to engage professional assistance to make his right to be heard meaningful.
d.Disclosure of evidence: A party must be given full opportunity to explain every material that is sought to be relied upon against him. Unless all the material (e.g. reports, statements, documents, evidence) on which the proceeding is based is disclosed to the party, he cannot defend himself properly.
e.

Speaking orders: Reasoned decision may be taken to mean a decision which contains reason in its support. When the adjudicatory bodies give reasons in support of their decisions, the decisions are treated as reasoned decision. It is also called speaking order.

In such condition the order speaks for itself or it tells its own story. Reasoned decision introduces a check on the administrative powers because the decisions need to be based on cogent reasons. It excludes or at least minimizes arbitrariness. Reason based judgments and orders allow the party affected by it to go into the merits of the decision and if not satisfied, exercise his right to appeal against the judgment/ order. In the absence of reasons, he might not be able to effectively challenge the order.

In Sunil Batra v. Delhi administration, the Supreme Court while interpreting section 56 of the Prisons Act, 1894, observed that there is an implied duty on the jail superintendent to give reasons for putting bar fetters on a prisoner to avoid invalidity of that provision under Article 21 of the constitution.

CS Executive JIGL Revision Notes

Exceptions to Natural Justice

  1. Statutory Exclusion: When the statute expressly or by necessary implication excludes the application of the principles of natural justice the courts do not ignore the statutory mandate. But one thing may be noted that in India, Parliament is not supreme and therefore statutory exclusion is not final. The statute must stand the test of constitutional provision. Even if there is no provision under the statute for observance of the principle of natural justice, courts may read the requirement of natural justice for sustaining the law as constitutional.
  2. Emergency: In exceptional cases of urgency or emergency (in the interest of the public safety or public morality) where prompt and preventive action is required, the principles of natural justice need not be observed.
    In Maneka Gandhi v. Union of India, the Supreme Court observed that a passport may be impounded in public interest without compliance with the principles of natural justice but as soon as the order impounding the passport has been made, an opportunity of post decisional hearing, remedial in aim, should be given to the person concerned.
    Public interest is a justiciable issue and the determination of administrative authority on it is not final.
  3. Interim disciplinary action: The rules of natural justice are not attracted in the case of interim disciplinary action.
    For example, the order of suspension of an employee pending an inquiry against him is not final but interim order and the application of the rules of natural justice is not attracted inthe case of such order.
    In Abhay Kumar v. K. Srinivasan, an order was passed by the college authority debarring the student from entering the premises of the college and attending the class till the pendency of a criminal case against him for stabbing a student. The Court held that the order was interim and not final. It was preventive in nature. It was passed with the object to maintain peace in the campus. The rules of natural justice were not applicable in such case.
  4. Academic evaluation: Where a student is removed from an educational institution on the grounds of unsatisfactory academic performance, the requirement of pre-decisional hearing is excluded. The Supreme Court has made it clear that if the competent academic authority assess the work of a student over the period of time and thereafter declare his work unsatisfactory the rule of natural justice may be excluded but this exclusion does not apply in the case of disciplinary matters.
  5. Impracticability: Where the authority deals with a large number of person it is not practicable to give all of them opportunity of being heard and therefore in such condition the court does not insist on the observance of the rules of natural justice.
    In P. Radhakrishna v. Osmania University, the entire M.B.A. entrance examination was cancelled on the ground of mass copying. The court held that it was not possible to give all the examinees the opportunity of being heard before the cancellation of the examination.

CS Executive JIGL Revision Notes

Exceptions to Natural Justice

When an authority required observing natural justice in making an order fails to do so, should the order made by it be regarded as void or voidable?

Voidable Order
A voidable order means that the order was legally valid at its inception, and it remains valid until it is set aside or quashed by the courts, that is, it has legal effect up to the time it is quashed.

Void Order
A void order is no order at all from its inception; it is a nullity and void ab initio. But in most cases a person affected by such an order cannot be sure whether the order is really valid or not until the court decided the matter. Therefore, the affected person cannot just ignore the order treating it as a nullity. He has to go to a Court for an authoritative determination as to the nature of the order is void.

Usually, a violable order cannot be challenged in collateral proceedings. It has to beset aside by the court in separate proceedings for the purpose. Suppose, a person is prosecuted criminally for infringing an order. He cannot then plead that the order is voidable. He can raise such a plea if the order is void.

In India, by and large, the judicial thinking has been that a quasi-judicial order made without following natural justice is void and nullity.

Nawabkhan v. Gujarat
Section 56 of the Bombay Police Act, 1951 empowers the Police Commissioner to extern any undesirable person on certain grounds set out therein. An order passed by the Commissioner on the petitioner was disobeyed by him and he was prosecuted for this in a criminal court. During the pendency of his case, on a writ petition filed by the petitioner, the High Court quashed the internment order on the ground of failure of natural justice.

The trial court then acquitted (free from the charge) the appellant. The government appealed against the acquittal and the High Court convicted him for disobeying the order. The High Court took the position that the order in question was not void ab initio; the appellant had disobeyed the order much earlier than date it was infringed by him; the High Court’s own decision invalidating the order in question was not retroactive and did not render it a nullity from its inception but it was invalidate only from the date the court declared it to be so by its judgment.

Stand of Supreme Court
The matter came in appeal before the Supreme Court, which approached the matter from a different angle. The order of internment affected a Fundamental Right (Article 19) of the appellant in a manner which was not reasonable. The order was thus illegal and unconstitutional and hence void.

The court ruled definitively that an order infringing a constitutionally guaranteed right made without hearing the party affected, where hearing was required, would be void ab initio and ineffectual to bind the parties from the very beginning and a person cannot be convicted for non observance of such an order.

The Supreme Court held that where hearing is obligated by statute which affects the fundamental right of a citizen, the duty to give the hearing sound in constitutional requirement and failure to comply with such a duty is fatal.

CS Executive JIGL Revision Notes

Leave a Comment