Administrative LawFrequently Asked Questions on Administrative Law
(1) Legislative or Rule-making,
(2) Judicial or Adjudicative,
(3) Purely Executive.The scope of Administrative Law in India is very much similar to that of United States. With the growth of the powers of administrative authorities the question as to how to control these powers became very important. 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 these authorities abuse those powers. The key function of administrative law is to find the ways, in which the administration could be kept within limits, so that discretionary power may not become arbitrary powers. The task of Administrative Law is to reconcile, in the field of administrative action, democratic safeguard and standards of fair play with the effective conduct of Government. 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 main object of the study of Administrative Law is to unravel the way in which these administrative authorities could be kept within their limits so that the discretionary powers may not be turned into arbitrary powers.
(1) There is a radical change in the philosophy as to the role played by the State. The negative policy of maintaining `law and order' and of `laissez faire' is given up. The state has not confined its scope to the traditional and minimum functions of defence and has adopted the positive policy and as a welfare State has undertaken to perform varied function.
(2) The judicial system proved inadequate to decide and settle all types of disputes.
(3) The legislative process was also inadequate. It had no time and technique to deal with all the details.
(4) There is scope for experiments in administrative process. Here a rule can be made, tried for some time and if it is found defective, it can be altered or modified within a short period.
(5) The administrative authorities can avoid technicalities. Administrative Law represents functional rather than a theoretical and legalistic approach.
(6) Administrative authorities can take preventive measures. In many cases, these preventive actions may prove to be more effective and useful than punishing a person after he has committed a breach of any provision of law.
(7) Administrative authorities can take effective steps for enforcement of the aforesaid preventive measures e.g. suspension, revocation and cancellation of licences, destruction of contaminated articles, etc., which are not generally available through regular courts of law.
(i) Supremacy of law;
(ii) Equality before law; and
(iii) Predominance of legal spirit.(i) Supremacy of law - Explaining the first principle, Dicey states 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 authority on the part of the Government. (ii) Equality before law - Secondly, it means equality before the law or equal subjection of all classes to the ordinary law of the land administered by the ordinary law courts. Everyone, whatever his position, right from a State Minister to a policeman, is governed by ordinary law of the land and personally liable for anything done by him contrary to that law, and is subject to the jurisdiction of the ordinary courts of justice, civil or criminal. On this point Dicey distinguished `Droit Administrative' from `Rule of Law'. He criticized the system of Droit Administrative in France where there were separate administrative tribunals for deciding cases between the government and the citizen. On the basis of above analysis he said that in England Administrative Law does not exist. (iii) Predominance of legal spirit - Thirdly, rule of law may be used as formula for expressing the fact that with us the law of the Constitution, are not the source but the consequences of the rights of individuals, as defined and enforced by the courts. According to Dicey Administrative Law is based on two ideas which are repugnant to the spirit of Rule of Law, viz. :
(1) That the government and its servants possess special rights, privileges and prerogatives as against private citizens. An individual in his dealings with the State does not stand on the same footing as that on which he stands in dealings with his neighbour.
(2) That government and its officials should be independent of and free from the jurisdiction of ordinary courts.Dicey states that in many countries rights such as right to personal liberty, freedom from arrest, freedom to hold public meetings are guaranteed by a written Constitution; those rights are the result of judicial decision. Thus, Dicey emphasized the role of the courts of law as guarantors of liberty and suggested that 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. According to him, mere incorporation or inclusion of certain rights in the written Constitution is of little value in the absence of effective remedies of protection and enforcement. Dicey's thesis had its own advantages and merits. The doctrine of rule of law proved to be an effective instrument in confining the administrative authorities within their limits. It served as a kind of touchstone to judge and test administrative actions. The doctrine of the rule of law expounded by Dicey was never fully accepted in England even in his days. In 1885 there existed `a long list of statutes which permitted the exercise of discretionary powers which could not be called in question by courts' and the Crown enjoyed the immunity under the maxim `The King can do no wrong'. The shortcoming of Dicey's thesis was that he not only excluded arbitrary powers but also insisted that the administrative authorities should not be given wide discretionary powers, as according to him, `Wherever there is discretion, there is room for arbitrariness'. Thus, Dicey failed to distinguish arbitrary power from discretionary power. Though arbitrary power is inconsistent with the concept of rule of law, discretionary power is not, if it is properly exercised. The modern welfare State cannot work properly without exercising discretionary power.
(1) Law and order;
(2) Fixed rules;
(3) Elimination of discretion;
(4) Due process of law or fairness;
(5) Natural law or observance of the principles of natural justice;
(6) Preference for Judges and ordinary courts of law to executive authorities and administrative tribunals; and
(7) Judicial review of administrative action.Rule of law under Constitution of India - Dicey's rule of law has been adopted and incorporated in the Constitution of India. The preamble itself enunciates the ideals of justice, liberty and equality. In Chapter III of the Constitution these concepts are enshrined as fundamental rights and are made enforceable. The Constitution is supreme and all the three organ of the government; viz. legislature, executive and judiciary are subordinate to and have to act in accordance with it. The principle of judicial review is embodied in the Constitution. If the executive or the government abuses the power vested in it or if the action is mala fide, the same can be quashed by the ordinary courts of law. All rules, regulations, ordinances, bye-laws, notifications, customs and usage are `laws' within the meaning of Article 13 of the Constitution and if they are inconsistent with or contrary to any of the provisions thereof, they can be declared as ultra vires by the Supreme Court and by High Courts. No person shall be deprived of his life or personal liberty except according to procedure established by law. The executive and the legislative powers of the States and the Union have to be exercised in accordance with the provisions of the Constitution. The Government and the public officials are not above the law. The maxim `The King can do no wrong' does not apply in India. There is equality before the law and equal protection of laws. In the case of Director of Rationing and Distribution v. The Corporation of Calcutta (1961) 1 SCR 158 = (AIR 1960 SC 1355), Wanchoo J. stated that in our country the rule of law prevails and our Constitution has guaranteed it by the provisions contained in Part III thereof as well as other provisions in other parts. In Bishan Das v. The State of Punjab (1962) 2 SCR 69 = (AIR 1961 SC 1570), S. K. Das J. speaking for the Constitution Bench of Supreme Court deprecated action taken by the State and its officers on the ground that it was destructive of the basic principles of the rule of law. In G. Sadanandan v. State of Kerala 1966-3 SCR 590 = (AIR 1966 SC 1925), Gajendragadkar C. J. speaking for the Constitution Bench observed that the paramount requirement of the Constitution was that even during emergency the freedom of Indian citizens would not be taken away without the existence of justifying necessity specified by the Defence of India Rules. Similarly in S. G. Jaisinghani v. Union of India (1967) 2 SCR 703 = (AIR 1967 SC 1427), Ramaswami J. speaking for the Constitution Bench of Supreme Court observed as under :
"In this context it is important to emphasize that the absence of arbitrary power is the first essential of the rule of law upon which our whole constitutional system is based. In a system governed by Rule of law, discretion, when conferred upon executive authorities, must be confined within clearly defined limits. The rule of law from this point of view means that decisions should be made by the application of known principles and rules and, in general, such decisions should be predictable and the citizen should know where he is. If a decision is taken without any principle or without any role it is unpredictable and such a decision is the antithesis of a decision taken in accordance with the rule of law. (See Dicey - Law of the Constitution - Tenth Edn., Introduction ex). `Law has reached its finest moments', stated Douglas, J. in United States v. Wunderlick, (1951) 342 US 98' when it has freed man from the unlimited discretion of some ruler. Where discretion is absolute, man has always suffered'. It is in this sense that the rule of law may be said to be sworn enemy of caprice. Discretion, as Lord Mansfield stated it in classic terms in the case of John Wilkes, (1770) 4 Burr 2528 at p. 2539, `means sound discretion guided by lay. It must be governed by rule, not by humor; it must not be arbitrary, vague and fanciful.' "Attribute of the rule of law has been specially highlighted in the decision of Apex Court in the case of State of Madhya Pradesh v. Thakur Bharat Singh, (1967) 2 SCR 454 : (AIR 1967 SC 1170). In that case the State Government made an order under Section 3 of the Madhya Pradesh Public Security Act, 1959, directing that the respondent (i) shall not be in any place in Raipur District, (ii) shall immediately proceed to and reside in a named town, and (iii) shall report daily to a police station in that town. The respondent challenged the order by a writ petition under Articles 226 and 227 of the Constitution on the ground, inter alia, that Section 3 infringed the fundamental rights guaranteed under Article 19 of the Constitution. The Court declared clauses (ii) and (iii) of the order invalid on the ground that clauses (b) and (c) of Section 3 (1) of the Madhya Pradesh Public Security Act on which they were based contravened Article 19. On appeal Supreme Court held that Section 8 (1) (b) violated Article 19 and as it was a pre-emergency enactment, it must be deemed to be void when enacted. Section 3 (1) (b) was further held not to have revived as a result of the proclamation of emergency by the President. It was observed :
"All executive action which operates to the prejudice of any person must have the authority of law to support it.
(1) The sovereignty of the people with limited Government authority i. e. the Government must be conducted in accordance with the will of the majority of the people. The people govern themselves through their representatives, whereas the official agencies of the executive Government possess only such powers as have been conferred upon them by the people,
(2) There is distribution of powers between the three organs of the State - legislative, executive and judicial - each organ having some check direct or indirect on the other; and
(3) The rule of law which includes judicial review of arbitrary executive actions. As pointed out by Dicey in his `Introduction to the Study of the Law of the Constitution', 10th Edn., at p. 202 the expression `rule of law' has three meanings, or may be regarded from three different points of view. `It means in the first place, the absolute supremacy or predominance of regular law as opposed to the influence of arbitrary power, and excludes the existence of arbitrariness, of prerogative or even of wide discretionary authority on the part of the government.' At p. 188 Dicey points out:`In almost every continental community the executive exercises far wider discretionary authority in the matter of arrest, of temporary imprisonment, of expulsion from its territory, and the like, than is either legally claimed or in fact exerted by the government in England and a study of European politics now and again reminds English readers that wherever there is discretion there is room for arbitrariness, and that in a republic no less than under a monarchy, discretionary authority on the part of the government must mean insecurity for legal freedom on the part of its subjects. `We have adopted under our Constitution not the continental system but the British system under which the rule of law prevails. In the case of Shrimati Indira Nehru Gandhi v. Shri Raj Narain (1975) Supp SCC 1 : (AIR 1975 SC 2299) Supreme Court laid stress on the rule of law in our constitutional scheme. These authorities clearly highlight the principle that executive authorities cannot under the rule of law take any action to the prejudice of an individual unless such action is authorised by law. A fortiori it would follow that under the rule of law it is not permissible to deprive a person of his life or personal liberty without the authority of law.
(a) That the same set of persons should not form part of more than one of the three organs of government;
(b) That one organ of government should not control or interfere with the exercise of functions of another organ, e.g., judiciary should be independent of the executive;
(c) That one organ of government should not exercise the functions of the other two departments.Montesquieu- The doctrine of separation of powers was first formulated by the French jurist Montesquieu. His statement of doctrine has been thus interpreted as if the executive and the legislative are the same person or body of persons, there would be a danger of the legislative enacting oppressive laws which the executive will administer to attain its own ends. Further he said that if judicial and executive powers were concentrated in one person or a body of persons, then there would be no objectivity of law. And to concentrate the powers of all the three organs in one person or body of persons would mean to create virtual despot of the State. According to Wade and Phillips, separation of Powers may mean three different things :-
(i) That the same person should not form part of more than one of the three organs of government e.g. the Ministers should not sit in Parliament;
(ii) That one organ of the government should not control or interfere with the exercise of its function by another organ e.g. the Judiciary should be independent of the Executive or that Ministers should not be responsible to Parliament; and
(iii) That one organ of the government should not exercise the functions of another, e.g. the Ministers should not have legislative powers.
(i) The Indian Legislative bodies are not sovereign. Their rights of legislation are regulated;
(ii) The various Lists ( I, II, and III) of the Constitution;
(iii) The provision of Part III;
(iv) The possibility of judicial veto on legislation; and
(v) The requirement that the President and the Council of Ministers have to act in accordance with the Constitution, and the provision for impeachment of the President, if he fails to act in accordance with the provisions of the Constitution.Furthermore, under Article 265 of the Constitution the executive powers in any State are to be exercised in such a way as to ensure compliance with the Constitution. So far as the Judiciary is concerned, the Constitution provides for dismissal of a Judge on a motion in that behalf passed under Article 174. So it will be noticed that these are checks and balances on various agencies of the State, which operate under the various provisions of the Constitution. Therefore, it can be said that the Indian Constitution believes in checks and balances and not on any rigid separation of powers. It was rightly laid down by Mukherji, J., in Ram Jawaya v. State of Punjab, [AIR 1955 S. C. 549] that the Indian Constitution has not indeed recognised the doctrine of separation of powers in its absolute rigidity. Justice Das, in the case of, Ram Krishna Dalmia v. Justice Tendolker, [1959 SCR 229], has said "The Constitution does not express the existence of the separation of powers and the doctrine does not form an essential basis or foundation stone of the constitutional framework as it does in the USA". In Kartar Singh v. State of Punjab AIR 1995 SC 1726 K. Ramaswamy, J. stated : "It is the basic postulate under the Indian Constitution that the legal sovereign power has been distributed between the legislature to make the law, the executive to implement the law and the judiciary to interpret the law within the limits set down by the Constitution". In Golak Nath v. State of Punjab AIR 1967 SC 1643 Subba Rao, C.J. observed :
"The Constitution brings into existence different constitutional entities, namely, the Union, the States and the Union Territories. It creates three major instruments of power, namely, the Legislature, the Executive, and the Judiciary. It demarcates their jurisdiction minutely and expects them to exercise their respective powers without overstepping their limits. They should function within the spheres allotted to them."So if we study the constitutional provisions carefully, it is clear that the doctrine of separation of powers has not been accepted in India in its strict sense.
"It may not be possible to frame an exhaustive definition of what executive function means and implies. Ordinarily the executive power connotes the residue of Governmental functions that remain after legislative and judicial functions are taken away."In Indian Railway Construction Co. Ltd. v. Ajay Kumar, AIR 2003 SC 1843 it was observed that administrative action is stated to be referable to broad area of governmental activities in which the repositories of power may exercise every class of statutory function of executive, quasi-legislative and quasi-judicial nature. It is trite law that exercise of power, whether legislative or administrative, will be set aside if there is manifest error in the exercise of such power or the exercise of the power is manifestly arbitrary. The Court will be slow to interfere in such matters relating to administrative functions unless decision is tainted by any vulnerability like illegality, irrationality and procedural impropriety. Whether action falls within any of the categories has to be established. Mere assertion in that regard would not be sufficient. 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 governmental policy or expediency.
(2) In administrative decisions, there is no legal 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) Administrative functions may be delegated and sub-delegated unless there is a specific bar.
(5) While taking a decision, an administrative authority may not only consider the evidence adduced by the parties to the dispute, but may also use its discretion.
(6) The prerogative writs of certiorari and prohibition are not always available against administrative actions.Distinction Between Administrative and Quasi Judicial Function - In State of A.P. v. S. M. K. Parasurama Gurukul, AIR 1973 SC 2237 it was observed that the test for determining whether a decision is an administrative one or quasi- judicial has been clearly specified in a number of decisions of this Court. Essentially, they are three in number :
1. there must be a lis between the two parties;
2. the opinion should be formed on the objective satisfaction and should not depend upon the subjective satisfaction of the tribunal; and
3. there must be a duty to act judicially.As to what is a quasi-judicial as against an administrative or ministerial function, Lord Loreburn, L.C. in Board of Education v. Rice, 1911 AC 179 at p. 182, had stated,
"Comparatively recent statutes have extended, if they have not originated, the practice of imposing upon departments or officers of State the duty of deciding or determining the questions of various kinds. In the present instance, as in many others, what comes for determination is sometimes a matter to be settled by discretion, involving no law. It will, I suppose, usually be of an administrative kind, but sometimes it will involve a matter of law as well as a matter of fact, or even depend upon a matter of law alone. In such cases the Board of Education will have to ascertain the law and also to ascertain the facts. I do not add that in doing either they must act in good faith and fairly listen to both sides, for that is a duty lying upon every one who decides anything. But I do not think that they are bound to treat such a question as though it were a trial. They can obtain information in any way they think best, always giving a fair opportunity to those who are parties in the controversy for correcting or contradicting any relevant statement prejudicial to their view. Similar sentiments were also expressed by Lord Haldane in Local Government Board v. Arlidge, 1915 AC 120 at p. 132. The Lord Chancellor there stated, "When the duty of deciding an appeal is imposed, those whose duty it is to decide it must act judicially. They must deal with the question referred to them without bias, and they must give to each of the parties the opportunity of adequately presenting the case made. The decision must be come to in the spirit and with the sense of responsibility of a tribunal whose duty it is to mete out justice".The principles distinguishing a quasi-judicial function from one which is ministerial were more precisely set out in Province of Bombay v. K.S. Advani, (1950) 1 SCR 621 : (AIR l950 SC 222) wherein it was observed (1) where there is a lis, there is prima facie in the absence of anything in the statute to the contrary the duty of the authority to act judicially and the decision of the authority is a quasi-judicial act; and (2) even if there is no lis inter parties and the contest between the party proposing to do the act and the subject opposing it, the final determination of the authority will yet be a quasi-judicial act provided the authority is required by the statute to act judicially. Hon'ble Kania C.J. had observed that :-
"It is broadly stated that when a fact has to be determined by an objective test and when that decision affects rights of someone, the decision or act is quasi-judicial. This last statement overlooks the aspect that every decision of the executive generally is a decision of fact and in most cases affects the rights of someone or the other. Because an executive authority has to determine certain objective facts as a preliminary step in the discharge of an executive function, it does not follow that it must determine those facts judicially. When the executive authority has to form an opinion about an objective matter as a preliminary step to the exercise of a certain power conferred on it, the determination of the objective fact and the exercise of the power based thereon are alike matters of an administrative character and are not amenable to the writ of certiorari."These principles have since been acted upon by Apex Court in subsequent decisions such as Nagendra Nath Bora v. Commr. of Hills Division, 1958 SCR 1240 : (AIR 1958 SC 398); Radheshyam Khare v. State of Madhya Pradesh, 1959 SCR 1440 : (AIR 1959 SC 107); Gullapalli Nageswara Rao v. Andhra Pradesh State Road Transport Corporation, 1959 Supp (1) SCR 319 : (AIR 1959 SC 308), and Shivji Nathubhai v. Union of India, (1960) 2 SCR 775 : (AIR 1960 SC 606). So following principles can be laid down regarding quasi-judicial act :
(i) that if a statute empowers an authority, not being a Court in the ordinary sense, to decide disputes arising out of a claim made by one party under the statute which claim is opposed by another party and to determine the respective rights of the contesting parties who are opposed to each other, there is a lis and prima facie and in the absence of anything in the statute to the contrary it is the duty of the authority to act judicially and the decision of the authority is a quasi-judicial act; and
(ii) that if a statutory authority has power to do any act which will prejudicially affect the subject, then, although there are not two parties apart from the authority proposing to do the act and the subject opposing it, the final determination of the authority will yet be a quasi-judicial act provided the authority is required by the statute to act judicially.In other words, while the presence of two parties besides the deciding authority will prima facie and in the absence of any other factor impose upon the authority the duty to act judicially, the absence of two such parties is not decisive in taking the act of the authority out of the category of quasi- judicial act if the authority is nevertheless required by the statute to act judicially." Quasi-judicial functions : Illustrations The following functions are held to be quasi-judicial functions :
(a) Disciplinary proceedings against students.
(b) Dismissal of an employee on the ground of misconduct.
(c) Confiscation of goods under the Sea Customs Act, 1878.
(d) Cancellation, suspension, revocation or refusal to renew license or permit by licensing authority.
(e) Determination of citizenship.Administrative functions : Illustrations The following functions are held to be administrative functions :
(a) An order of prevention is held to be administrative function.
(b) An order of acquisition or requisition of property.
(c) An order setting up a commission of inquiry.
(d) An order making or refusing to make a reference under the Industrial Disputes Act, 1947.
(e) An order granting sanction to prosecute a public servant.
(f) An order granting or refusing to grant permission of sale in favour of non-agriculturist under Tenancy Acts.
(i) A quasi-judicial authority has some of the trappings of a court, but not all of them; nevertheless there is an obligation to act judicially.
(ii) A lis 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 and procedure while a quasi-judicial authority is not.
(iv) While precedents bind a court a quasi-judicial authority is not.
(v) A court cannot be a judge in its own cause (except in contempt cases), while an administrative authority vested with quasi-judicial powers may be a party to the controversy but can still decide it.In Bharat Bank, Ltd., Delhi v. Employees of the Bharat Bank, Ltd., Delhi, AIR 1950 SC 188, Hon'ble Supreme Court relied upon following quotation :-
"A true judicial decision presupposes an existing dispute between two or more parties, and then avolves four requisites : (1) the presentation (not necessarily orally) of their case by the parties to the dispute; (2) if the dispute between them is a question of fact the ascertainment of the last 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 the evidence; (3) if the dispute between them is a question of law, the submission of legal argument by the parties; and (4) a decision which disposes of the whole matter by a finding upon the facts in dispute and application of the law of the land to the facts so found, including where required a ruling upon any disputed question of law. A quasi-judicial decision equally presupposes an existing dispute between two or more parties and involves (1) and (2), but does not necessarily involve (3) and never involves (4). The place of (4) is in fact taken by administrative sanction, the character of which is determined by the Minister's free choice."
"When the function of legislation is entrusted to an organ other than the legislature by the legislature itself, the legislation made by such organ is called delegated legislation."According to M.P. Jain, the term `delegated legislation' is used in two senses : it may mean (a) exercise by a subordinate agency of the legislative power delegated to it by the legislature, or (b) the subsidiary rules themselves which are made by the subordinate authority in pursuance of the power conferred on it by the legislature. In its first application, it means that the authority making the legislation is subordinate to the legislature. An authority other than the legislature exercise of the powers delegated or conferred on them by the legislature it exercises the legislative powers. This is also known as `subordinate legislation', because the powers of the authority which makes it are limited by the statute which conferred the power and consequently, it is valid only insofar as it keeps within those limits. In its second connotation, `delegated legislation' means and includes all rules, regulations, bye-laws, order, etc. Reasons for Growth of Delegated 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. 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 sufficient time to discuss all the matters in 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, regulations, bye-laws etc. (b) Technicality : Sometimes, the subject matter 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. (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 these 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. (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 in the light of its application necessary changes could be made. (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 situations. Delegated legislation is the only convenient - indeed the only possible - remedy. (f) Complexity of Modern Administration : The complexity of modern administration and expansion of the function 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. In "St. Johns Teachers Training Institute v. Regional Director, National Council for Teacher Education" AIR 2003 SC 1533 it was observed that the power to make subordinate legislation is derived from the enabling Act and it is fundamental that the delegate on whom such a power is conferred has to act within the limits of authority conferred by the Act. Rules cannot be made to supplant the provisions of the enabling Act but to supplement it. What is permitted is the delegation of ancillary or subordinate legislative functions, or, what is fictionally called, a power to fill up details. The Legislature may, after laying down the legislative policy confer discretion on an administrative agency as to the execution of the policy and leave it to the agency to work out the details within the framework of policy. The need for delegated legislation is that they are framed with care and minuteness when the statutory authority making the Rule, after coming into force of the Act, is in a better position to adapt the Act to special circumstances. Delegated legislation permits utilization of experience and consultation with interests affected by the practical operation of statutes. Rules and Regulations made by reason of the specific power conferred by the Statute to make Rules and Regulations establish the pattern of conduct to be followed. Regulations are in aid of enforcement of the provisions of the Statute. The process of legislation by departmental Regulations saves time and is intended to deal with local variations and the power to legislate by statutory instrument in the form of Rules and Regulations is conferred by Parliament. The main justification for delegated legislation is that the Legislature being overburdened and the needs of the modern day society being complex it cannot possibly foresee every administrative difficulty that may arise after the statute has begun to operate. Delegated legislation fills those needs. In "Jullundur Rubber Goods Manufacturers' Association, M/s. v. Union of India" AIR 1970 SC 1589 it was observed that it is well established that essential legislative functions consist of the determination of the legislative policy and its formulation as a binding rule of conduct and cannot be delegated by the legislature. What can be delegated is the task of subordinate legislation necessary for implementing the purpose and objects of an enactment. Where legislative policy is enunciated with sufficient clearness or a standard is laid down the courts will not interfere. It will depend on consideration of the provisions of a particular Act including its preamble as to the guidance, which has been given, and the legislative policy, which has been laid down in the matter. In "Arnold Rodricks v. State of Maharashtra" AIR 1966 SC 1788 it was observed that Delegated legislation is a well-known modern device. In view of the complexities of modern life it is not possible for the legislature to find time to make all the detailed rules which are necessary to carry out the purposes of an enactment; so it delegates to an appropriate executive authority the power to make rules. But before doing so, the legislature itself enacts the law under which the power is delegated and lays down the essential policy of the Act and all such essential matters which require to be included in the Act itself. Having thus provided for all such essential matters in the enactment itself, the legislature leaves it to a subordinate authority, which may be some appropriate executive authority, to frame detailed rules to carry out the purposes of the Act. These rules are ancillary and subserve the purposes of the enactment. They cannot go against the provisions of the enactment and cannot in any manner make any change in the provision of the enactment and are merely for the purpose of carrying out the essential policy, which the legislature has laid down in the enactment itself. These rules are called delegated legislation and it is important to remember that this delegated legislation cannot in any way change the provisions of the enactment itself and must only be resorted to for carrying out the purposes of the legislation itself. Such being the nature of delegated legislation we have to see whether the impugned provisions of Section 3 are in accord with these principles. If they are not and if the legislature has conferred powers on the State Government beyond this, such conferment of power cannot be delegated legislation and is really an abdication of its power by the legislature and transfer of it to the executive.
(1) The time when provision should be enforced,
(2) The period during which it is to be implemented or suspended, and
(3) The place where it should be applied.In delegated legislation, the delegate completes the legislation by supplying the details within the limits prescribed by the statute. In case of conditional legislation, the power of the legislation is exercised by the Legislature conditionally leaving it to the discretion of the external authority, the time and manner of carrying the legislation into effect, as also the determination of the area to which it is to extend. In "State of T.N. v. K. Sabanayagam" AIR 1998 SC 344 it was observed that in the case of conditional legislation, the legislation is complete in itself but its operation is made to depend on fulfilment of certain conditions and what is delegated to an outside authority, is the power to determine according to its own judgment whether or not those conditions are fulfilled. In case of delegated legislation proper, some portion of the legislative power of the Legislature is delegated to the outside authority in that, the Legislature, though competent to perform both the essential and ancillary legislative functions, performs only the former and parts with the latter, i.e., the ancillary function of laying down details in favour of another for executing the policy of the statute enacted. The distinction between the two exists in this that whereas conditional legislation contains no element of delegation of legislative power and is, therefore, not open to attack on the ground of excessive delegation, delegated legislation does confer some legislative power on some outside authority and is therefore open to attack on the ground of excessive delegation. In "Hamdard Dawakhana v. Union of India" AIR 1960 SC 554 it was observed that the distinction between conditional legislation and delegated legislation is this, that in the former the delegate's power of that of determining when a legislative declared rule of conduct shall become effective, and the latter involves delegation of rule making power which constitutionally may be exercised by the administrative agent. This means that the legislature having laid down the broad principles of its policy in the legislation can then leave the details to be supplied by the administrative authority. In other words by delegated legislation the delegate completes the legislation by supplying details within the limits prescribed by the statute and in the case of conditional legislation the power of legislation is exercised by the legislature conditionally leaving to the discretion of an external authority the time and manner of carrying its legislation into effect as also the determination of the area to which it is to extend. Thus when the delegate is given the power of making rules and regulations in order to fill in the details to carry out and subserve the purposes of the legislation the manner in which the requirements of the statute are to be met and the rights therein created to be enjoyed, it is an exercise of delegated legislation. But when the legislation is complete in itself and the legislature has itself made the law and the only function left to the delegate is to apply the law to an area or to determine the time and manner of carrying it into effect, it is conditional legislation.
(i) Essential legislative function i.e. laying the policy of the Act and enacting that policy into a binding rule of conduct, cannot be delegated by the legislature.
(ii) While what constitutes an essential feature cannot be delineated in detail, it certainly can't include a change of policy.
(iii) After the legislature has exercised its essential legislative functions, it can delegate non-essentials, however numerous and significant they may be.
(iv) The delegated legislation must be consistent with the parent Act and must not violate legislative policy and guidelines. Delegate cannot have more legislative powers than delegator.
(v) The delegated legislation in order to be valid must not be unreasonable and must not violate any procedural safeguards if provided in the parent Act.
(vi) Sub-delegation of legislative powers in order to be valid must be expressly authorised by the parent Act.It will be useful to reproduce here a passage from Administrative Law by Wade and Forsythia (Eighth Edition 2000 at page 839) :
"Administrative legislation is traditionally looked upon as a necessary evil, an unfortunate but inevitable infringement of the separation of powers. But in reality it is no more difficult to justify it in theory than it is possible to do without it in practice. There is only a hazy borderline between legislation and administration, and the assumption that they are two fundamentally different forms of power is misleading. There are some obvious general differences. But the idea that a clean division can be made (as it can be more readily in the case of the judicial power) is a legacy from an older era of political theory. It is easy to see that legislative power is the power to lay down the law for people in general, whereas administrative power is the power to lay down the law for them, or apply the law to them, in some particular situation. ................."The question whether any particular legislation suffers from excessive delegation has to be decided having regard to the subject matter, the scheme, the provisions of the Statutes including its preamble and the facts and circumstances in the background of which the Statute is enacted. (See Registrar, Co-operative Societies v. K. Kunjabmu, AIR 1980 SC 350 and State of Nagaland v. Ratan Singh, AIR 1967 SC 212). It is also well settled that in considering the vires of subordinate legislation one should start with the presumption that it is intra vires and if it is open to two constructions, one of which would make it valid and other invalid, the Courts must adopt that construction which makes it valid and the legislation can also be read down to avoid its being declared ultra vires. ("St. Johns Teachers Training Institute v. Regional Director, National Council for Teacher Education" AIR 2003 SC 1533) In "Maharashtra S. B. O. S. and H.S. Education v. Paritosh" AIR 1984 SC 1543 it was observed that the question whether a particular piece of delegated legislation - whether a rule or regulation or other type of statutory instrument - is in excess of the power of subordinate legislation conferred on the delegate has to be determined with reference only to the specific provisions contained in the relevant statute conferring the power to make the rule regulation, etc. and also the object and purpose of the Act as can be gathered from the various provisions of the enactment. It is exclusively within the province of the legislature and its delegate to determine, as a matter of policy, how the provisions of the Statute can best be implemented and what measures, substantive as well as procedural would have to be incorporated in the rules or regulations for the efficacious achievement of the objects and purposes of the Act. It is not for the Court to examine the merits or demerits of a policy laid down by regulation-making body because its scrutiny has to be limited to the question as to whether the impugned regulations fall within the scope of the regulation-making power conferred on the delegate by the Statute. Any drawbacks in the policy incorporated in a rule or regulation will not render it ultra vires and the Court cannot strike it down on the ground that, in its opinion, it is not a wise or prudent policy, but is even a foolish one, and that it will not really serve to effectuate the purposes of the Act. The constitutionality of the regulations has to be adjudged only by a three- fold test, namely, (1) whether the provisions of such regulations fall within the scope and ambit of the power conferred by the statute on the delegate; (2) whether the rules/regulations framed by the delegate are to any extent inconsistent with the provisions of the parent enactment; and lastly (3) whether, they infringe any of the fundamental rights or other restrictions or limitations imposed by the Constitution. In "Hukam Chand v. Union of India" AIR 1972 SC 2427 it was observed that unlike Sovereign Legislature which has power to enact laws with retrospective operation, authority vested with the power of making subordinate legislation has to act within the limits of its power and cannot transgress the same. The initial difference between subordinate legislation and the statute laws lies in the fact that a subordinate law making body is bound by the terms of its delegated or derived authority and that court of law, as a general rule, will not give effect to the rules, thus made, unless satisfied that all the conditions precedent to the validity of the rules have been fulfilled.
(i) Substantive ultra vires.
(ii) Procedural ultra vires.Substantive ultra vires. - When a subordinate legislation goes beyond what the delegate is authorised to enact, it is known as substantive ultra vires. Substantive ultra vires means that the delegated legislation goes beyond the scope of the authority conferred on it by the parent statute or by the Constitution. The court will upset subordinate legislation unlike an Act of the Parliament, where it contains provisions not authorised by the Statute, or where it has exceeded the limits laid down in the Parent Statute. The Administrative authorities are required to act within the limits laid down in the Statute. It is the duty of the court to construe the Statute and find out whether the powers have been exercised properly. In "Shri Sitaram Sugar Co. Ltd., M/s. v. Union of India" AIR 1990 SC 1277 it was observed that Power delegated by statute is limited by its terms and subordinate to its objects. The delegate must act in good faith, reasonably, intra vires the power granted, and on relevant consideration of material facts. All his decisions, whether characterized as legislative or administrative or quasi-judicial, must be in harmony with the Constitution and other laws of the land. They must be "reasonably related to the purposes of the enabling legislation". If they are manifestly unjust or oppressive or outrageous or directed to an unauthorised end or do not tend in some degree to the accomplishment of the objects of delegation, courts might well say, "Parliament never intended to give authority to make such rules; they are unreasonable and ultra vires". The doctrine of judicial review implies that the repository of power acts within the bounds of the power delegated and he does not abuse his power. He must act reasonably and in good faith. It is not only sufficient that an instrument is intra vires the parent Act, but it must also be consistent with the constitutional principles In Dwarka Nath v. Municipal Corp. (AIR 1971 SC 1844), the Supreme Court held Rule 32 framed under Prevention of Food Adulteration Act, 1954 as ultra vires of the Act being in excess of the power conferred. The Act authorised the government for restricting the packing and labeling of any food article with a view to preventing the public from being misled as to quantity and quality of the article. Rule 32 provided that there shall be specified on every label name and business address of the manufacturer. The court accepted the contention that the requirement of address under Rule 32 is beyond the power of enabling Act which restricted to "quantity and quality" only. In the same manner in Ibrahim v. Regional Transport Authority (AIR 1953 SC 79), the court declared the rules framed by the administrative authority for fixing sites for the bus stand as invalid being in excess of the power conferred by enabling Act which authorised the agency to make rules for the "control of transport vehicles". In State of Karnataka v. Vanesh Kamath (AIR 1983 SC 550), court struck down the Rule 5(2) as being inconsistent with the enabling Act. This Rule provided that even though a person has passed the test for driving heavy motor vehicles he cannot obtain a licence unless he had already possessed a licence for and has 2 years experience for driving medium motor vehicle. This Rule was found to be in direct conflict with Section 7 (7) (a) of the enabling Motor Vehicles Act, 1939 which had provided that a person who passes the test in driving a heavy vehicle is to be deemed also to have passed the test in driving any medium vehicle. In "Income-tax Officer v. M. C. Ponnoose" AIR 1970 SC 385 it was observed that "The Parliament can delegate its legislative power within the recognised limits. Where any person or authority to which such powers have been delegated by the legislature makes any rule or regulation it may or may not be possible to make the same so as to give retrospective operation. It will depend on the language employed in the statutory provision, which may in express terms or by necessary implication empower the authority concerned to make a rule or regulation with retrospective effect. But where no such language is to be found it has been held by the Courts that the person or authority exercising subordinate legislative functions cannot make a rule, regulation or bye-law which can operate with retrospective effect." Procedural ultra vires - When a subordinate legislation fails to comply with certain procedural requirements prescribed by the parent Act or by the general law, it is known as procedural ultra vires. While framing rules, bye-laws, regulations, etc., the parent Act or enabling statute may require the delegate to observe a prescribed procedure, such as holding of consultations with particular bodies or interests, publication of draft rules or bye-laws, laying them before Parliament, etc. It is incumbent on the delegate to comply with these procedural requirements and to exercise the power in the manner indicated by the legislature. Failure to comply with the same may invalidate the rules so framed. But at the same time, it is also to be noted that failure to observe the procedural requirements does not necessarily and always invalidate the rules. This arises out of distinction between mandatory requirements and directory requirements. The following two procedural requirements may now be discussed :
(2) Consultation.(1) Publication (i) Object It is a fundamental principle of law that `ignorance of law is no excuse' (ignorantia juris non excusat), but there is also equally established principle of law that the public must have access to the law and they should be given an opportunity to know the law. Publication or making the rules known to the individuals concerned is an essential requirement for validity of delegated legislation. It is so even if the law is silent as to the stipulation of publication. In Harla v. State of Rajasthan (AIR 1951 SC 467), the Supreme Court has held that a law cannot be enforced unless published. The council by a resolution enacted the Jaipur Opium Act, which was never published in any form. One Harla was prosecuted for the contravention of this law. The court held that publication of some sort is essential, as it would be against natural justice to punish the subjects under a law of which they had no knowledge and of which they could not, even with the exercise of reasonable diligence, have acquired any knowledge. However, the court left it vague as to what channels of publication were to be `adopted'. (ii) Necessity of publication From the point of view of the individual it is unfair to publish the rules in any obscure publication. First, publication in the required mode creates certainty in the mind of the individual that rules have been duly made and this enhances faith in the legal system. Second, it enables him to have easy accessibility to the rules. Where publication in gazette is held to be merely directory, two results would follow - (1) In the absence of publication at the proper place, delegated legislation cannot be enforced against a person who does not have actual notice or knowledge of rules unless it can be shown that adequate steps were taken to bring the rules home to the (affected) people. (2) The rule making authority will be bound by rules and even a person who did not know of the rules earlier but comes to know of them later can take advantage of them even though they have not been published in official gazette but in some other way. (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. An important measure to check and control the exercise of legislative power by the executive is the technique of consultation through which affected interests may participate in the rule making process. This modus operandi is regarded as a valuable safeguard against misuse of legislative power by the executive authorities. This process of exchange of ideas is beneficial to both : to the affected interests itself insofar as they have an opportunity to impress on the authority their point of view; and to the rule making authority insofar as it can gather necessary information regarding the issues involved and thus be in a better position to appreciate a particular situation. The administration is not always the repository of ultimate wisdom; it learns from the suggestions made by outsiders and often benefits from that advice.
(i) Laying on Table; and
(ii) Scrutiny Committee(i) Laying on Table - The Parliament exercises a direct special control over the delegated Legislation through the techniques of `laying' on the table of the House rules and regulations framed by administration. In India, there is no general obligation on the administration to lay the rules before the Houses. The consequences of non-compliance with the laying provision depend on whether the provisions in the enabling Act are mandatory or directory. The laying procedure is provided with a view to enabling the legislature to supervise over the exercise of delegated Legislation. In reality, however, even inspite of such laying requirement, the legislative control tends to become a fiction. Members have so many other important, urgent matters to deal with that they hardly find time to go into the question of delegated Legislation. The very reasons, which cause the growth of delegated Legislation also, account for legislative control becoming unreal. The Committee on Subordinate Legislation, with a view to bring uniformity in the laying procedure, made the following recommendations-
(i) That, in future, the Acts containing provisions for making rules, etc., shall lay down that such rules shall be laid on the Table as soon as possible.
(ii) That all rules shall be laid on the Table for a uniform and total period of 30 days before the date of their publication.The committee, however, accepted an alternative formula suggested by the Government in which the Government instead of agreeing to lay the rules before Parliament prior to their coming into force proposed to lay them after their coming into force making them subject to such modifications as might be made by Parliament. There are several types of `laying'. (1) Laying without further provision for control - Here the parent Act merely provides that the rules shall be laid before Parliament. They become operative from the date they are laid before the Houses and in exceptional cases, even before they are so laid. (2) Laying with deferred operation - The requirement of laying is linked with postponement of operation of the rules and thus Parliament gets more control. (3) 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. (4) Laying in draft but subject to resolution that no further proceedings 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. (5) 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. (6) 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. (7) 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 also necessary. According to the Committee on Delegated Legislation, the statutes contain four methods of laying :
(i) Requirement of mere publication of rules in the Official Gazette;
(ii) Requirement of such publication and laying on the Table;
(iii) Over and above the aforesaid two conditions, some statures allowed modification by Parliament; and
(iv) Requirement of laying of rules for a specified period before they are published in the Official Gazette.(ii) Scrutiny Committees As discussed above, laying on the table has not always been held to be mandatory. Even if that requirement is complied with, mere laying of rules before Parliament would not be of much use, unless the rules were properly studied and scrutinized. Therefore, with a view to strengthening parliamentary control over delegated Legislation, Scrutiny Committees are established. In India also, there are two Scrutiny Committees :
(1) The Lok Sabha Committee on Subordinate Legislation;
(2) The Rajya Sabha Committee on Subordinate Legislation.The function of these Committees is to scrutinize and report to the respective Houses whether the powers to make regulations, rules, sub-rules, bye-law, etc., conferred by the Constitution or delegated by Parliament are being properly exercised within such delegation. The Indian Committee on Subordinate Legislation has made inter alia the following recommendations and suggestions :
1. Power of judicial review should not be taken away or curtailed by rules.
2. A financial levy or tax should not be imposed by rules.
3. Language of rules should be simple and clear and not complicated or ambiguous.
4. Rules should not be given retrospective operation, unless the parent Act has expressly conferred such a power.
5. Legislative policy must be formulated by the legislature and laid down in the statute and the power to supply details may be left to the executive, and can be worked out through the rules made by the administration.
6. Discriminatory rules should not be framed by administration.
7. Rules should not travel beyond the rule-making power conferred by the parent Act.
8. There should not be inordinate delay in making of rules by the administration.
9. The rules framed by the administration and required to be laid before the House by the parent Act should be laid before Parliament as soon as possible, and whenever there is inordinate delay, an explanatory note giving the reasons for such delay should be appended to the rules so laid.
10. The final authority of interpretation of rules should not be with the administration.
11. Sufficient publicity must be given to the statutory rules and orders.
"The second question, however, as to what are the principles of natural justice that should regulate an administrative act or order is a much more difficult one to answer. We do not think it either feasible or even desirable to lay down any fixed or rigorous yard-stick in this manner. The concept of natural justice cannot be put into a straight-jacket. The only essential point that has to be kept in mind in all cases is that the person concerned should have a reasonable opportunity of presenting his case and that the administrative authority concerned should act fairly, impartially and reasonably. Where administrative officers are concerned, the duty is not so much to act judicially as to act fairly " In "R. S. Dass v. Union of India" AIR 1987 SC 593 it was observed 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 effected and the consequences which may entail its application depends upon the facts and circumstances of each case. These principles do not apply to all cases and situations. Applications of these unmodified rules are often excluded by express provision or by implication.In "Union of India v. J. N. Sinha" AIR 1971 SC 40 it was observed that Rules of natural justice are not embodied rules nor can they be elevated to the position of fundamental rights. Their aim is to secure justice or to prevent miscarriage of justice. These rules can operate only in areas not covered by any law validly made. They do not supplant the law but supplement it. If a statutory provision can be read consistently with the principles of natural justice, the courts should do so. But if a statutory provision either specifically or by necessary implication excludes the application of any rules of natural justice then the court cannot ignore the mandate of the legislature or the statutory authority and read into the concerned provision the principles of natural justice. Whether the exercise of a power conferred should be made in accordance with any of the principles of natural justice or not depends upon the express words of the provision conferring the power, the nature of the power conferred, the purpose for which it is conferred and the effect of the exercise of that power. Thus in simple words the rules of natural justice can be summarized in the following manner :
(i) Firstly, it signifies that one cannot be a Judge in his own cause.
(ii) One who hears, should decide.
(iii) Opportunity to the parties of being heard any producing evidence in support of their allegation.
(iv) Right to cross-examination.The broad principles of natural justice are as follows :
(i) A quasi-judicial authority cannot make any decision adverse to any party without giving him an effective opportunity of meeting any allegation against him.
(ii) That every person whose civil right is affected must have a reasonable notice of the case he has to meet.
(iii) That he must have a reasonable opportunity of being heard in his defence,
(iv) That he must have the opportunity of adducing all relevant evidence on which he relies, the evidence of the opponent should be taken in his presence and that he must have the opportunity of cross-examining the witness examined or relied upon by the opponent, and documents which are necessary for the purpose of an effective exercise of the foregoing rights, should not be withheld from such person.In the case of Board of Mining Examination v. Ramjee, AIR 1977 SC 967, Supreme Court has disfavoured the extension of natural justice rule to administrative fields. Krishna Iyer J., observed :-
"Natural Justice is no unruly horse, no lurking landmine, nor a judicial cure to all. If fairness is shown by the decision maker to the man proceeded against, the form, features and the fundamentals of such essential processional propriety being conditioned by the facts and circumstances of each situation, no breach of natural justice can be complained of. Unnatural expansion of natural justice, without reference to the administrative realities and other factors of a given case, can be exasperating".The Supreme Court in Maneka Gandhi v. Union of India [(1978) 1 SCC 248] equated the rules of "Natural Justice" to the American's `due process' and emphasized its application in administrative procedures. The court felt the necessity of spelling out fair procedure in all these cases where the legislature enacts a law, which may affect the rights of an individual.
"It is one of the fundamental principles of our jurisprudence that no man can be a Judge in his own cause and that if there is a reasonable likelihood of bias it is "in accordance with natural justice and commonsense that the justice likely to be so biased should be incapacitated from sitting". The question is not whether the Judge is actually biased or in fact decides partially, but whether there is a real likelihood of bias. What is objectionable in such a case is not that the decision is actually tainted with bias but that the circumstances are such as to create a reasonable apprehension in the mind of others that there is a likelihood of bias affecting the decision. The basic principle underlying this rule is that justice must not only be done but must also appear to be done. It is also important to note that this rule is not confined to cases where judicial power stricto sensu is exercised. It is appropriately extended to all cases where an independent mind has to be applied to arrive at a fair and just decision between the rival claims of parties. Justice is not the function of the courts alone; it is also the duty of all those who are expected to decide fairly between contenting parties. The strict standards applied to authorities exercising judicial power are being increasingly applied to administrative bodies, for it is vital to the maintenance of the rule of law in a welfare State where the jurisdiction of administrative bodies is increasing at a rapid pace that the instrumentalities of the State should discharge their functions in a fair and just manner. "Types of Bias Bias is of three types :
(i) Pecuniary bias,
(ii) Personal bias, and
(iii) Official bias or bias as to subject-matter.(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". Griffith and Street rightly state that 'a pecuniary interest, however slight, will disqualify, even though it is not proved that the decision is in any way affected'. In Dimes v. Grant Junction Canal (1852) 8 Co. Rep. 113 b : 77 All ER 646 is considered to be the classic example of the application of the rule against pecuniary interest. In this case, the Vice-Chancellor decreed the suits and the appeals. Against those decrees were filed in the court of Lord Chancellor Cottenham. He dismissed the appeals and decrees were confirmed in favour of a canal company in which he was a substantial shareholder. The House of Lords agreed with the Vice-Chancellor and affirmed the decrees on merits. In fact, Lord Cottenham's decision was not in any way affected by his interest as a shareholder; and yet the House of Lords quashed the decision of Lord Cottenham. Lord Campbell observed : `No one can suppose that Lord Cottenham could be, in the remotest degree, influenced by the interest that he had in this concern; but my Lords, it is of the last importance that the maxim, that no one is to be a Judge in his own cause, should be held sacred. And it will have a most salutary influence on (inferior) tribunals when it is known that this High Court of last resort, in a case in which the Lord Chancellor of England had an interest, considered that his decree was on that account a decree not according to law, and was set aside. In Mohapatra & Co. v. State of Orissa (1984) 4 SCC 103 (112) : AIR 1984 SC 1572 (1576) 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. The Supreme Court held that the possibility of bias could not be ruled out. Madon, J. observed : "It is not the actual bias in favour of the author-member that is material, but the possibility of such bias". (ii) Personal Bias - The Judge may be a friend of the party, or related to him, or have some business or professional relationship with him, or may even have personal animosity or hostility against him. In Mineral Development Ltd. v. State of Bihar (AIR 1960 SC 468) the Revenue Minister had cancelled the petitioner's licence for the lease of certain land. It was found that there was political rivalry between petitioner and the minister. In Manak Lal v. Prem Chand (AIR 1957 SC 125), in order to decide a complaint for professional misconduct filed by Prem Chand against Manak Lal an advocate of Rajasthan High Court, the High Court appointed a tribunal consisting of a senior advocate, one Advocate-General of Rajasthan as Chairman. The tribunal's decision was challenged on ground of a personal bias arising from the fact that Chairman had represented Prem Chand in an earlier case. The court refused to quash the action on the basis of `real likelihood' of bias, as the Chairman had no personal contact with his client and did not remember that he appeared on his behalf. However, the high professional standards led the court to quash action on ground that justice should not only be done but must appear to have been done. Actual proof of prejudice was not necessary; reasonable ground for assuming the possibility of bias was sufficient. In State of U.P. v. Mohd. Nooh AIR 1958 SC 86, a departmental inquiry was held against A by B. As one of the witnesses against A turned hostile, B left the inquiry, gave evidence against A, resumed to complete the inquiry and passed an order of dismissal. The Supreme Court held that "the rules of natural justice were completely discarded and all canons of fair play were grievously violated" by B. Similarly, in Rattan Lal v. Managing Committee (1993) 4 SCC 10 : AIR 1993 SC 2155, 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. (iii) Official Bias - The third types 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. Those cases fall within this category where the deciding officer is directly, or otherwise, involved in the subject-matter of the case. Here again mere involvement would not vitiate administrative action unless there is a real likelihood of bias i.e. unless the adjudication has intimately identified himself with the issues. In Gullapalli Nageswara Rao v. A.P.S.R.T.C. (Gullapalli I) AIR 1959 SC 308, the petitioners were carrying on motor transport business. The Andhara State Transport Undertaking published a scheme for nationalization of motor transport in the State and invited objections. The objections filed by the petitioners were received and heard by the Secretary and thereafter the Chief Minister approved the scheme. The Supreme Court upheld the contention of the petitioners that the official who heard the objections was `in substance' one of the parties to the dispute and hence the principles of natural justice were violated.
(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 and is void ab initio. Unless a person knows the formulation of subjects and issues involved in the case, he cannot defend himself. A notice must be adequate, and contain :
(1) Time, place and nature of hearing,
(2) Legal authority under which hearing is to be held,
(3) Statement of specific charges (or grounds) and proposed action (or grounds) which the person has to meet.However, the requirement of notice will not be insisted upon as a mere technical formality, when the concerned party clearly knows the case against him, and is not thereby prejudiced in any manner in putting up an effective defence. Therefore in Keshav Mills Co. v. Union of India (AIR 1973 SC 389), the Supreme Court did not quash the order of the government taking over the mill for a period of 5 years on the technical ground that the appellants were not issued notice before this action was taken, because, at an earlier stage, a full-scale hearing had already been given and there was nothing more which the appellant wanted to know. (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 State of Orissa v. Binapani Dei AIR 1967 SC 1269 the petitioner was compulsorily retired from service on the ground that she had completed the age of 55 year. No opportunity of hearing was given to her before the impugned order was passed. The Supreme Court set aside the order as it was violative of the principles of natural justice. Again, in Maneka Gandhi v. Union of India, AIR 1978 SC 597, the passport of the petitioner-journalist was impounded by the Government of India in public interest. No opportunity was given to the petitioner before taking the impugned action. The Supreme Court held that the order was violative of the principles of natural justice. Although an adjudicating authority must observe the principles of natural justice and must give a reasonable opportunity of being heard to the person against whom the action is sought to be taken. But in England and in America, it is well settled law that in absence of statutory provisions, an administrative authority is not bound to give the person concerned an oral hearing. In India also, the same principle is followed. A person is not entitled to an oral hearing, unless the statute confers such a right. In M.P. Industries v. Union of India AIR 1966 SC 671, Subba Rao, J. observed :
"It is no doubt a principle of natural justice that a quasi-judicial tribunal cannot make any decision adverse to a party without giving him an effective opportunity of meeting any relevant allegations against him (but) the said opportunity need not necessarily be by personal hearing. It can be by written representation. Whether the said opportunity should be by written representation or by personal hearing depends upon the facts of each case and ordinarily it is in the discretion of the tribunal".
Provided that an amendment which has the effect of enhancing an assessment or reducing a refund or otherwise increasing the liability of the assesses, shall not be made under this sub-section unless the Appellate Tribunal has given notice to the assessee a reasonable opportunity of being heard.Thus, the provisions requiring the Income-Tax authorities and the Appellate Tribunal to give reasonable opportunity to show cause or to represent one's view are made whenever the interests of the assessee are affected. Under the Representation of the Peoples Act, 1951, provisions for hearing are like that under Civil Procedure Code, when an actual suit is tried by the court. The rules regarding the appearance of the opposite party, and the production of evidence are same as they are laid down in Civil Procedure Code. Under Section 85 of the Act, the proviso clearly guarantees the opportunity to be heard. Section 85 laid down : 'If the provisions of Section 81 or Section 82 or Section 107 have not been complied with, the Election Commission shall dismiss the petition :
Provided that the petition shall not be dismissed without giving the petitioner an opportunity to be heard".Similarly in Criminal trial in course of trial before pronouncement of judgment he is entitled to be heard on the evidence which has come on record against him. Section 313 Criminal Procedure Code provides that a accused will be given opportunity to explain and answer about those facts evidence of which has been produced by prosecution. Similarly u/s 35 (2), (3) of Copyright Act, the Copyright Board is required to give notice and a reasonable opportunity of being heard. Sub-sec. (2) of Section 35 provides : The Copyright Board shall, in respect of every such rule, give notice thereof. Sub-sec. (3) again provides : The Copyright Board shall, after giving such society and the person who lodged the objection a reasonable opportunity of being heard and after making such further enquiry as may be prescribed. Thus, if we look in the principal statutes of India, which provide for tribunals, each of them contains provisions for an opportunity of being heard. Where the right has not been conceded in express words, it should be assumed as an essential requirement of the fair procedure. Under the Constitution itself, there are provisions, which give an opportunity to show cause, while any action is taken against a Government servant in connection with his dismissal or reduction in rank. Under Article 331 of the Constitution, clause 2 clearly provides :-
"No such person as aforesaid shall be dismissed or removed or reduced in rank until he has been given a reasonable opportunity of showing cause against the action proposed to be taken in regard to him :
Provided that this clause shall not apply :
(a) Where a person is dismissed or removed or reduced in rank on the ground of misconduct which has led to his conviction on a criminal charge;
(b) Where an authority empowered to dismiss or remove a person or to reduce him in rank is satisfied that for some reasons to be recorded by that authority in writing it is not reasonable, practicable to give to that person an opportunity of showing cause; or.
(c) where the President or Governor, as the case may be, is satisfied that in the interest of the security of the State it is not expedient to give to that person due opportunity." Thus, we find that except under the above three conditions, a reasonable opportunity to be heard has been clearly guaranteed. In India, "reasonable opportunity of being heard" clause has been given statutory recognition in almost all cases. It was thought to be an essential condition of getting justice. Without it, the true end of judicial hearing will be frustrated.
(1) Where the functions of the authority concerned are held to be policy oriented.
(2) Where the authority concerned is vested with wide discretion.
(3) Where the legislation expresses the requirement of notice and hearing for some purposes but imposes no procedural requirement for other purposes.
(4) Where the imposition of compliance with the rule, i.e., to disclose relevant information to the party affected would be prejudicial to the public interest.
(5) Where the obligation to give notice and opportunity to be heard would obstruct the taking of prompt action specially action of a prevention and remedial nature.
(6) Where for any reasons, it becomes impracticable to give prior notice or opportunity of hearing
(7) Where the matter in issue or the monetary value of the interests at stake is too insignificant.
(8) Where the power exercised is disciplinary.
(1) the party aggrieved has the opportunity to demonstrate before the appellate or revisional court that the reasons which persuaded the authority to reject his case were erroneous;
(2) the obligation to record reasons operates as a deterrent against possible arbitrary action by executive authority invested with judicial power; and
(3) it gives satisfaction to the party against whom the order is made. The power to refuse to disclose reasons in support of the order is `exceptional in nature and it ought to be exercised fairly, sparingly and only when fully justified by the exigencies of an uncommon situation'.
"It would not be correct to say that for any and every violation of a facet of natural justice, an order passed is always null and void. The validity of the order has to be tested on the touchstone of prejudice. The ultimate test is always the same, viz., the test of prejudice or the test of fair hearing".
(1) An `Administrative Tribunal' is the creation of a statute and thus, it has a statutory origin.
(2) It has some of the trappings of a court but not all.
(3) An `Administrative Tribunal' is entrusted with the judicial powers of the State and thus, performs judicial and quasi-judicial functions, as distinguished from pure administrative or executive functions and is bound to act judicially.
(4) Even with regard to procedural matters, an administrative tribunal possesses powers of a court; e.g. to summon witnesses, to administer oath, to compel production of documents, etc.
(5) An administrative tribunal is not bound by strict rules of evidence and procedure.
(6) The decisions of most of the tribunals are in fact judicial rather than administrative inasmuch as they have to record findings of facts objectively and then to apply the law to them without regard to executive policy.
(7) Administrative Tribunals are independent and they are not subject to any administrative inference.
(8) The prerogative writs of certiorari and prohibition are available against the decisions of administrative tribunals.Administrative Tribunal Distinguished From Court - An `Administrative Tribunal' is similar to a court in certain aspects. A tribunals possesses some of the trappings of a court, but not all, and therefore, both must be distinguished :
(1) A Court of law is a part of the traditional judicial system, where judicial powers are derived from the State. On the other hand, an `Administrative Tribunal' is an agency created by a statute and invested with judicial powers. Primarily and essentially, it is a part and parcel of the Executive Branch of the State, exercising executive as well as judicial functions.
(2) Whereas ordinary civil courts have judicial power to try all suits of a civil nature, excepting those, whose cognizance is either expressly or impliedly barred, tribunals have power to try cases in special matters statutorily conferred.
(3) Judges of ordinary courts of law are independent of the executive in respect of their tenure, terms and conditions of service, etc. On the other hand, members of `Administrative Tribunals' are entirely in the hands of the government in respect of those matters.
(4) A court of law is generally presided over by an officer trained in law, but the president or a member of a tribunal may not be trained as well in law.
(5) A court of law is bound by all the rules of evidence and procedure but an `Administrative Tribunal' is not bound by those rules unless the relevant statute imposes such an obligation.
(6) A court must decide all the questions objectively on the basis of the evidence and materials produced before it, but an `Administrative Tribunal' may decide the questions taking into account the departmental policy or expediency and in that sense, the decision may be subjective rather than objective.
(7) While precedents, principles of res judicata and Estoppel bind a court of law, they do not strictly bind an `Administrative Tribunal'.
(8) A court of law can decide the `vires' of a legislation, while an `Administrative Tribunal' cannot do so.
(i) employers and employees, or
(ii) employers and workmen, or
(iii) workmen and workmenwhich is connected with -
(a) the employment or non-employment
(b) the terms of employment, or
(c) the conditions of labour.Section 7-A if the Industrial Disputes Act, 1947 provides as follows :
(1) The appropriate Government may, by notification in the official Gazette, constitute one or more Industrial Tribunals for the adjudication of Industrial Disputes relating to any matter, whether specified in the second Schedule or the third Schedule.
(2) A tribunal shall consist of one person only to be appointed by the appropriate Government.
(3) A person shall not be qualified for appointment as the presiding Officer of a tribunal unless -
(a) he is or has been a Judge of High Court; or
(b) he as held the office of the Chairman or any other member of the Labour Appellate Tribunal constituted under Industrial Disputes (Appellate Tribunal) Act, 1950 or of any Tribunal for a period of not less than two years.
(4) The appropriate Government may, if it so thinks fit, appoint two persons as assessors to advise the Tribunal in the proceedings before it.Section 10(1) (d) provides, "where the appropriate Government is of the opinion that any industrial dispute exists or is apprehended, it may at any time by order in writing refer the dispute or any matter appearing to be connected with or relevant, to the dispute, to a Tribunal for adjudication". Section 10 (4) further provides that where in an order referring an industrial dispute to a Tribunal, the appropriate Government has specified the points of dispute for adjudication, the Tribunal shall confine its adjudication to these points and matters incidental thereto. The Tribunal follows fair procedure and ensures the basic procedural safeguard to the parties. It holds the proceedings in public. A presiding officer of the Tribunal may, for the purpose of enquiry into any existing or apprehended industrial dispute, after giving reasonable notice, enter the premises occupied by any establishment to which the dispute relates. Every Tribunal shall have the same powers which are vested in a Civil court, under the Code of Civil Procedure, 1908, when trying a suit, in respect of following matters, namely -
(a) enforcing the attendance of any person and examining him on oath;
(b) compelling the production of documents and material objects;
(c) issuing commissions for the examination of witnesses;
(d) in respect of such other matters as may be prescribed and every inquiry or investigation by a Tribunal shall be deemed to be judicial proceedings within the meaning of Section 193 and of the Indian Penal Code.Every Tribunal shall be deemed to be a Civil court for the purposes of Sections 480 and 482 of the Code of Criminal Procedure, 1898. In L. Chandra Kumar v. Union of India AIR 1997 SC 1125 it was observed :
"The proceedings conducted by the Industrial Tribunal are judicial proceedings and the decisions and awards are subject to the writ jurisdiction of the High Court under Article 226 of the Constitution. The tribunal is also subject to the supervisory jurisdiction of the High Court under Article 227 of the Constitution. Article 136 of the Constitution vests the Supreme Court with discretion to entertain appeals against the orders of tribunals by granting special leave".(b) Income Tax Appellate Tribunal - The income tax tribunal is constituted under the Income-tax Act, 1961. It consists of as many judicial and accountant members as the Central Government thinks fit. A judicial members must have held at least for ten years a judicial post or must have been a member of the Central Legal Services (not below Grade III) for at least three years or must have been in practice as an advocate for at least ten years. An accountant member must be a Chartered Accountant under the Chartered Accountants Act, 1949 and must have practiced as such for ten years or must have served as Assistant Commissioner for at least three years. Appointments are made by the Central Government. The Chairman of the tribunal shall be appointed from amongst the judicial members. The President of India regulates the conditions of service of the members in exercise of powers conferred by the proviso to Article 309 of the Constitution. Appeals can be filed before the tribunal by an aggrieved party against orders passed by the appellate Assistant Commissioner, Inspecting Assistant commissioner or Commissioner within a period of 60 days. The tribunal shall decide the matter only after giving both the parties to the appeal an opportunity of being heard. If the parties do not appear at the time of hearing, the appeal may be adjourned or heard ex parte. The assessee is entitled to appear before the tribunal personally or through an authorised agent including a lawyer. The tribunal is not governed by the rules of evidence applicable to the courts of law and is empowered to regulate its own procedure. It gives oral hearing to the parties and passes appropriate orders. The proceedings before the tribunal are deemed to be judicial proceedings. It has the power of summoning witnesses, enforcement of attendance, discovery and inspection, production of documents and issue of commissions, as it has been given powers of a civil court under the Code of Civil Procedure, 1908. It can order prosecution of persons who produce false evidence or fabricate such evidence and they may be punished under the Indian Penal Code, 1860. It may also take appropriate actions for its contempt. It may impound and retain books of account. The proceedings of the tribunal are not open to public. The decisions of the tribunal on questions of fact are final. No regular appeal is provided by the Act against the decision of the tribunal even on questions of law but a reference can be made at the request of either party to the High Court on any question of law or directly to the Supreme Court if the tribunal is of the opinion that there is conflict of opinions amongst the High Courts. (c) Railways Rates Tribunal - Indian Railway Rates Tribunal is established under the Indian Railways Act, 1989. It consists of a Chairman who is or has been a Judge of the Supreme Court or of a High Court and two members, one shall be a person who, in the opinion of the Central Government has special knowledge of commercial, industrial or economic conditions of the country and the other shall be a person, who, in the opinion of the Central Government, has special knowledge and experience of the commercial working of the railways. They shall be appointed by the Central Government and the terms and conditions of their appointment may be such as the Central Government may prescribe. The members so appointed are to hold office for such period as may be specified in the order of appointment, not exceeding five years. No member can be re-appointed. The tribunal is a quasi-judicial body, having all the attributes of a civil court under the court of Civil Procedure, 1908. It has power to summon witnesses, take evidence, order discovery and inspection of documents, issue commissions, etc. The proceedings of the tribunal are deemed to be judicial proceedings within the meaning of Section 195 and Chapter XXVI of the Code of Criminal Procedure, 1973. The tribunal is not bound by strict rules of evidence and procedure and is empowered to frame its own rules for the purpose of `practice and procedure', subject to approval of the Central Government. The tribunal has the power to hear complaints against the railway administration relating to discriminatory or unreasonable rates levied by it, classification of goods or in giving undue preference to a particular person. The tribunal acts with the aid of assessors who are selected from a panel prepared by the Central Government. This panel includes representatives of trade, industry, agriculture and persons who have a working knowledge of the railways. They are selected after consultation with the interests likely to be affected by the decisions of the tribunal A party before the tribunal is entitled to be heard in person or through an authorised agent including a lawyer. The decision of the tribunal is to be made by a majority of members. Its decision is final and can be executed by a civil court `as if it were a decree'. The tribunal can revise its order on an application being made by the railway administration if the tribunal is satisfied that `since the order was made, there has been a material change in the circumstances'.
(i) discovery and inspection;
(ii) enforcement of attendance of any person;
(iii) compulsory production of documents and other evidence;
(iv) issuing of commission.Again, the proceedings of the tribunals are declared to be judicial proceedings for purposes of sections 193 and 228 and for purposes of Section 196 of Indian Penal Code. It is also provided that the tribunal shall be deemed to be civil court for purposes of Section 346 of the Code of Criminal Procedure, 1973. Section 193 of Indian Penal Code provides penalty for giving or fabricating false evidence in any stage of judicial proceeding. Section 228 provides punishment for intentional insults to public servant while sitting in any stage of judicial proceeding. Under sections 340 to 345 of Cr. P. Code, 1973 provisions have been made for the prosecution of the offences affecting the administration of justice. Thus, by extending the application of these provisions to the proceedings of a tribunal. The Law Commission in its Fourteenth Report (1958) has observed that administrative tribunals perform quasi-judicial functions and they must act judicially and in accordance with the principles of natural justice. Administrative tribunals must act openly, fairly and impartially. They must afford a reasonable opportunity to the parties to represent their case and to adduce the relevant evidence. Their decisions must be objective and not subjective.
"(2) It extends, -
(a) in so far as it relates to the Central Administrative Tribunal, to the whole of India.
(b) in so far as it relates to Administrative Tribunals for States, to the whole of India, except the State of Jammu and Kashmir."Section 3 is the definition clause. Chapter II ("Establishment of Tribunals and Benches thereof'') contains Sections 4 to 13. Section 4 empowers the Central Government to establish :
(1) a Central Administrative Tribunal with Benches at separate places :
(2) an Administrative Tribunal for a State which makes a request in this behalf; and
(3) a Joint Administrative Tribunal for two or more States which enter into an agreement for the purpose.Section 5 states that each Tribunal shall consist of a Chairman and such number of Vice-Chairmen and Judicial and Administrative Members as may be deemed necessary by the appropriate Government. Sub-section (2) of Section 5 requires every Bench to ordinarily consist of one Judicial Member and one Administrative Member. Sub-section (6) of Section 5, which enables the Tribunal to function through Single Member Benches is the focus of some controversy, as will subsequently emerge, and is fully extracted as under :
"Section 5(6) - Notwithstanding anything contained in the foregoing provisions of this section, it shall be competent for the Chairman or any other Member authorised by the Chairman in this behalf to function as a Bench consisting of a single Member and exercise the jurisdiction, powers and authority of the Tribunal in respect of such classes of cases or such matters pertaining to such classes of cases as the Chairman may by general or special order specify :
Provided that if at any stage of the hearing of any such case or matter it appears to the Chairman or such Member that the case or matter is of such a nature that it ought to be heard by a Bench consisting of two Members, the case or matter may be transferred by the Chairman or, as the case may be, referred to him for transfer to such Bench as the Chairman may deem fit."Section 6 deals with the qualifications of the personnel of the Tribunal. Since the first few sub-sections of Section 6 are required to be considered subsequently, they may be reproduced hereunder :
"6. Qualifications for appointment of Chairman, Vice-Chairman or other Members - (1) A person shall not be qualified for appointment as the Chairman unless he -
(a) is, or has been, a Judge of a High Court; or
(b) has, for at least two years, held the office of Vice-Chairman;
(c) ... ... ...
(2) A person shall not be qualified for appointment as the Vice- Chairman unless he -
(a) is, or has been, or is qualified to be a Judge of a High Court; or
(b) has, for at least two years, held the post of a Secretary to the Government of India or any other post under the Central or a State Government carrying a scale of pay which is not less than that of a Secretary to the Government of India; or
(bb) has for at least five years, held the post of an Additional Secretary to the Government of India or any other post under the Central or a State Government carrying a scale of pay which is not less than that of an Additional Secretary to the Government of India; or
(c) has, for a period of not less than three years, held office as a Judicial Member or an Administrative Member.
(3) A person shall not be qualified for appointment as a Judicial Member unless he -
(a) is, or has been, or is qualified to be, a Judge of a High Court; or
(b) has been a member of the Indian Legal Service and has held a post in Grade 1 of that Service for at least three years.
(3-A) A person shall not be qualified for appointment as an Administrative Member unless he -
(a) has, for at least two years, held the post of an Additional Secretary to the Government of India or any other post under the Central or a State Government carrying a scale of pay which is not less than that of an Additional Secretary to the Government of India; or
(b) has, for at least three years, held the post of a Joint Secretary to the Government of India or any other post under the Central or a State Government carrying a scale of pay which is not less than that of a Joint Secretary to the Government of India, and shall, in either case, have adequate administrative experience.Sub-sections (4), (5) and (6) of Section 6 provide that all the Members of the Central Administrative Tribunal, the State Administrative Tribunals and the Joint Administrative Tribunals shall be appointed by the President; in the case of the State Administrative Tribunals and the Joint Administrative Tribunals, the President is required to consult the concerned Governor(s). Sub-section (7) stipulates that the Chief Justice of India is also to be consulted in the appointment of the Chairman, Vice-chairman and Members of all Tribunals under the Act. Section 8 prescribes the terms of office of the personnel of the Tribunal as being for a duration of five years from the date of entering into office; there is also provision for reappointment for another term of five years. The maximum age limit permissible for the Chairman and the Vice-Chairman is 65 years and for that of any other Member is 62 years. Section 10 stipulates that the salaries, terms and conditions of all Members of the Tribunal are to be determined by the Central Government; such terms are, however, not to be varied to the disadvantage of any Member after his appointment. Chapter III ("Jurisdiction, powers and authority of tribunals") consists of Sections 14 to 18. Section 14, 15 and 16 deal with the jurisdiction, powers and authority of the Central Administrative Tribunal, the State Administrative Tribunals and the Joint Administrative Tribunals respectively. These provisions make it clear that except for the jurisdiction of this Court, the Tribunals under the Act will possess the jurisdiction and powers of every other Court in the country in respect of all service-related matters. Section 14 provides - "Jurisdiction, powers and authority of the Central Administrative Tribunal :-
1. Save as otherwise expressly provided in this Act, the Central Administrative Tribunal shall exercise, on and from the appointed day, all the jurisdiction, powers and authority exercisable immediately before this day by all Courts (except the Supreme Court) in relation to -
(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(b) all service matters concerning -
(i) and (ii) . . . . . . . . . . . . . . . . . . . . . . .
(iii) a civilian not being a member of an All India Service or a person referred to in Cl. (c) appointed to any defence services or a post connected with defence,and pertaining to the service of such member, person or civilian, in connection with the affairs of the Union or of any State or of any local or other authority within the territory of India or under the control of the Government of India or of any Corporation or society owned or controlled by the Government." Section 17 provides that the Tribunals under the Act will have the same powers in respect of contempt as are enjoyed by the High Courts. Chapter IV ("Procedure") comprises Sections 19 to 27. Section 21 specifies strict limitation periods and does not vest the Tribunals under the Act with the power to condone delay. Chapter V ("Miscellaneous"), the final Chapter of the Act, comprising Sections 28 to 37, vests the Tribunals under the Act with ancillary powers to aid them in the effective adjudication of disputes. Section 28 the "exclusion of jurisdiction" clause reads as follows :
"28. Exclusion of jurisdiction of courts - On and from the date from which any jurisdiction, powers and authority becomes exercisable under this Act by a Tribunal in relation to recruitment and matters concerning recruitment to any Service or post or service matters concerning members of any Service or persons appointed to any Service or post, no court except-
(a) the Supreme Court; or
(b) any Industrial Tribunal, Labor Court or other authority constituted under the Industrial Disputes Act, 1947 or any other corresponding law for the time being in force,
shall have, or be entitled to exercise any jurisdiction, powers or authority in relation to such recruitment or matters concerning such recruitment or such service matters."Pursuant to the provisions of the above said Act, the Central Administrative Tribunal, with five Benches, was established on November 1, 1985. However, even before the Tribunal had been established, several writ petitions had been filed in various High Court as well as Supreme Court challenging the constitutional validity of Article 323A of the Constitution as also the provisions of the Act; the principal violation complained of being the exclusion of the jurisdiction of this Court under Article 32 of the Constitution and of that of the High Courts under Article 226 of the Constitution. Through an interim order dated October 31, 1985, reported as S.P. Sampath Kumar v. Union of India, (1985) 4 SCC 458, Apex Court directed the carrying out of certain measures with a view to ensuring the functioning of the Tribunal along constitutionally sound principles. When Sampath Kumar's case (AIR 1987 Sc 386) was finally heard, these changes had already been incorporated in the body and text of the Act. The Court took the view that most of the original grounds of challenge - which included a challenge to the constitutional validity of Article 323A - did not survive and restricted its focus to testing only the constitutional validity of the provisions of the Act. In its final decision, the Court held that though judicial review is a basic feature of the Constitution, the vesting of the power of judicial review in an alternative institutional mechanism, after taking it away from the High Courts, would not do violence to the basic structure so long as it was ensured that the alternative mechanism was an effective and real substitute for the High Court. Using this theory of effective alternative institutional mechanism as its foundation, the Court proceeded to analyse the provisions of the Act in order to ascertain whether they passed constitutional muster. The Court came to the conclusion that the Act, as it stood at that time, did not measure up to the requirements of an effective substitute and, to that end, suggested several amendments to the provisions governing the form and content of the Tribunal. The suggested amendments were given the force of law by an amending Act (Act 51 of 1987) after the conclusion of the case and the Act has since remained unaltered.
(i) recruitment, and matters concerning recruitment, to any All India service or to any civil service or to any civil service of the Union or a civil post under the Union or to post connected with defence or in the defence services, being in either case, a post filled by a civilian; and
(ii) all service matters concerning -
(a) a member of an All India Service; or
(b) a person appointed to any civil service of the Union or any civil post under the Union [not being a member of an All India Service of a person referred to in (iii)]
(c) a civilian appointed to any defence service or a post connected with defence [not being a member of All India Service or a person referred to in (iii)]
(iii) all service matters pertaining to service in connection with the affairs of the Union concerning a person appointed to any civil service of the Union or any civil post under the Union or concerning a civilian who has been appointed to any defence service or a post connected with defence and a person whose services have been placed by a State Government or any local or other authority or any Corporation or Society or other body, at the disposal of the Central Government for such appointment.When the jurisdiction can be attracted ? The jurisdiction of Administrative Tribunal can only be attracted when it is proved that other remedies have been exhausted [Section 20]. When the Tribunal satisfies that other remedies have been exhausted then only it will entertain the application otherwise not. In this regard sub-section (1) to Section 20 says that : A tribunal shall not, ordinarily, admit an application unless it is satisfied that the applicant had availed of all the remedies available to him under the relevant service rules as to redressal or grievance. Following are the conditions when a person shall be deemed to have availed of all the remedies available to him -
(i) If a final order has been made by the Government, or
(ii) Such final order has been made by other authority or officer, or other person competent to pass such order under such rules, rejecting any appeal preferred or representation made by such person in connection with the grievance, or
(iii) Where no final order has been made by the Government or other authority or officer or person competent to pass such order with regard to appeal preferred or representation made by such person, if a period of six months from the date on which such appeal was preferred or representation was made has expired.
(i) Judicial review of legislative action;
(ii) Judicial review of judicial decision; and
(iii) Judicial review of administrative action.We are concerned with the last aspect, namely, judicial review of administrative action. The underlying object of judicial review is to ensure that the authority does not abuse its power and the individual receives just and fair treatment and not to ensure that the authority reaches a conclusion, which is correct in the eye of law. Judicial review of administrative action is perhaps the most important development in the field of public law in the second half of this century. In India, the doctrine of judicial review is the basic feature of our Constitution. Judicial review is the most potent weapon in the hands of the judiciary for the maintenance of the rule of law. Judicial review is the touchstone of the Constitution. In recent times, judicial review of administrative action has become extensive and expansive. The traditional limitations have vanished and the sphere of judicial scrutiny is being expanded. Under the old theory, the courts used to exercise power only in cases of absence or excess or abuse of power. As the State activities have become pervasive and giant public corporations have come in existence, the stake of public exchequer justifies larger public audit and judicial control. The pattern of judicial review in this area reflects reconciliation of two conflicting values. The court is not an appellate forum where the correctness of the order of Government could be convassed and, indeed it has no jurisdiction to substitute its own view. However, since the legislature cannot have intended that the executive be the final judge of the extent of its own powers, the courts have come into picture and keep administration within the confines of the law. The courts are concerned with legality rather than with the merits of an administrative order. They would not go into the question whether there was sufficient or adequate or satisfactory material for the authority to form its opinion. The judicial control of administrative discretion in U. K., U.S.A. and India converges on the same point despite divergent constitutional structurizations. In U.K., the courts have always held that the concept of `unfettered discretion' is a constitutional blasphemy. In U.S.A. besides the judicial review of administrative discretion which is available in the `due process clause', the Administrative Procedure Code, 1946 specifically provides for judicial review. In India, there is no such specific provision, so the power of judicial review arises from the constitutional configuration of courts. Though courts in India have developed a few effective parameters for the proper exercise of discretion, the conspectus of judicial behavior still remains halting, variegated and residual and lacks the activism of the American courts. Judicial Review : Limitations - Judicial review has certain inherent limitations. It is suited more for adjudication of disputes than for performing administrative functions. It is for the executive to administer the law and the function of the judiciary is toe ensure that the Government carries out its duty in accordance with the provisions of the Constitution. The duty of the court is to confine itself to the question of legality. It is to consider whether a decision-making authority exceeded its powers, committed an error of law, violated rules of natural justice, reached a decision which no reasonable man would have reached or otherwise abused its powers. Though the court is not expected to act as a court of appeal, nevertheless it can examine whether the "decision making process" was reasonable, rational, not arbitrary or not violative of Article 14 of the Constitution. The parameters of judicial review must be clearly defined and never exceeded. If the authority has faltered in its wisdom, the court cannot act as super auditor. (S. R. Bommai v. Union of India (1994) 3 SCC 1) Unless the order passed by an administrative authority is unlawful or unconstitutional, power of judicial review cannot be exercised. An order of administration may be right or wrong. It is the administrator's right to trial and error and so long as it is bona fide and within the limits of the authority, no interference is called for. In short, power of judicial review is supervisory in nature. Unless this restriction is observed, the court, under the guise of preventing abuse of power by the administrative authority, will itself be guilty of usurping power (S.R. Bommai's case). In "Indian Railway Construction Co. Ltd. v. Ajay Kumar" AIR 2003 SC 1843 it was observed that Administrative action is stated to be referable to broad area of governmental activities in which the repositories of power may exercise every class of statutory function of executive, quasi-legislative and quasi-judicial nature. It is trite law that exercise of power, whether legislative or administrative, will be set aside if there is manifest error in the exercise of such power or the exercise of the power is manifestly arbitrary. The Court will be slow to interfere in such matters relating to administrative functions unless decision is tainted by any vulnerability like illegality, irrationality and procedural impropriety. Whether action falls within any of the categories has to be established. Mere assertion in that regard would not be sufficient. To arrive at a decision on "reasonableness" the Court has to find out if the administrator has left out relevant factors or taken into account irrelevant factors. The decision of the administrator must have been within the four corners of the law, and not one, which no sensible person could have reasonably arrived at, having regard to the above principles, and must have been a bona fide one. The decision could be one of many choices open to the authority but it is for that authority to decide upon the choice and not for the Court to substitute its view. To characterize a decision of the administrator as "irrational" the Court has to hold, on material , that if is a decision "so outrageous", as to be in total defiance of logic or moral standards.
(1) express malice or "malice in fact", and
(2) implied or legal malice or "malice in law".Mala fides violating proceedings may be factual or legal. Former is actuated by extraneous considerations whereas the latter be without malicious intention or improper motive. In other words, a plea of mala fide involves two questions :
(i) whether there is a personal bias or oblique motive; and
(ii) whether the administrative action is contrary to the objects, requirements and condition of a valid exercise of power.Burden of Proof in Mala Fides - Mala fide exercise of power is required to be proved by the person who alleges it. Unlike the case of bias where it is enough to prove the "likelihood" of bias, in the case of mala fide the actual prejudice has to be proved. That is why it is difficult to prove mala fides. The following factors are important in the proof of mala fides :
(i) Direct evidence (e.g. documents, tape-recording, etc.)
(ii) Course of events
(iii) Public utterances of the authority
(iv) Deliberate ignoring of facts by the authority
(v) Failure to file affidavits denying the allegation of mala fides.However, if the allegations are of wild nature, there is no need of controverting allegations. In Shivajirao Patil v. Mahesh Madhav AIR 1987 SC 294 , the High Court observed that although there was no direct evidence it could reasonably be inferred that tampering with the answer-books in the university examination had been done at the command of the Chief Minister. The Supreme Court on appeal held that though no clean chit could be given to the Chief Minister, the High Court's observation has no legal basis. This case shows that it is difficult to prove mala fides. In "Indian Railway Construction Co. Ltd. v. Ajay Kumar" AIR 2003 SC 1843 it was observed that while examining the question as to practicability or otherwise of holding the enquiry where the High Court had proceeded on the footing as if the order of dispensing with enquiry was mala fide; even when there was no specific allegation of mala fides and without any specific person against whom mala fides were alleged being impleaded in the proceedings and except making a bald statement regarding alleged victimization and mala fides, no specific details were given, the approach of the High Court could not be said to be in the correct perspective and proper. Doubtless, he who seeks to invalidate or nullify any act or order must establish the charge of bad faith, an abuse or a misuse by the authority of its powers. While the indirect motive or purpose, or bad faith or personal ill-will is not to be held established except on clear proof thereof, it is obviously difficult to establish the state of a man's mind, for that is what the employee has to establish, though this may sometimes be done. The difficulty is not lessened when one has to establish that a person apparently acting in the legitimate exercise of power has, in fact, been acting mala fide in the sense of pursuing an illegitimate aim. It is not the law that mala fide in the sense of improper motive should be established only by direct evidence. But it must be discernible from the order impugned or must be shown from the established surrounding factors, which preceded the order. If bad faith would vitiate the order, the same can be deduced as a reasonable and inescapable inference from proved facts. It cannot be overlooked that burden of establishing mala fides is very heavy on the person who alleges it. The allegations of mala fides are often more easily made than proved, and the very seriousness of such allegations demands proof of a high order of credibility. Courts would be slow to draw dubious inferences from incomplete facts placed before it by a party, particularly when the imputations are grave and they are made against the holder of an office which has a high responsibility in the administration.
(i) for enforcement of fundamental rights, or
(ii) for any other purpose.So far as the enforcement of fundamental rights is concerned, the jurisdiction of the High Court is substantially the same. If there is violation of a fundamental right and it is the duty of the Supreme Court to enforce it, it is absurd to contend that there is no such duty on High Courts to grant relief in case of violation of fundamental rights. In Devilal v. STO, AIR 1965 SC 1150 : (1965) 1 SCR 686. It was observed "There can be no doubt that the Fundamental Rights, guaranteed to the citizens are a significant feature of our Constitution and the High Courts under Article 226 are bound to protect these Fundamental Rights." In Mohd. Hanif v. State of Assam, (1969) 2 SC 782 it was observed that "The jurisdiction of High Courts under Article 226 of the Constitution is equitable and should be exercised to ensure that the law of the land is obeyed and public authorities are kept within the limits of their jurisdiction. In a proceeding under Article 226, the High Court does not determine private rights of parties. It is a remedy against violation of rights by State or statutory authorities. It is a remedy in public law." In "Roshan Deen v. Preeti Lal" AIR 2002 SC 33 it was observed that the power conferred on the High Court under Arts. 226 and 227 of the Constitution is to advance justice and not to thwart it. The very purpose of such constitutional powers being conferred on the High Courts is that no man should be subjected to injustice by violating the law. The look out of the High Court is, therefore, not merely to pick out any error of law through an academic angle but to see whether injustice has resulted on account of any erroneous interpretation of law. If justice became the byproduct of an erroneous view of law the High Court is not expected to erase such justice in the name of correcting the error of law. In "T.K. Rangarajan v. Govt. of T.N." AIR 2003 SC 3032 it was observed that it is established principle that where there is an alternative, effective, efficacious remedy available under the law, the High Court would not exercise its extraordinary jurisdiction under Article 226 and that has been reiterated by holding that the litigants must first approach the Tribunals which act like Courts of first instance in respect of the areas of law for which they have been constituted and therefore, it will not be open to the litigants to directly approach the High Court even where the question of vires of the statutory legislation is challenged. But High Court is empowered to exercise its extraordinary jurisdiction to meet unprecedented extraordinary situation having no parallel. When the State Government has dismissed 2 lac employees for going on strike, the situation is very very exceptional. There was no justifiable reason for the High Court not to entertain the petitions on the ground of alternative remedy provided under the statute. In "Chairman and Managing Director, United Commercial Bank v. P. C. Kakkar" AIR 2003 SC 1571 it was observed that the Court should not interfere with the administrator's decision unless it was illogical or suffers from procedural impropriety or was shocking to the conscience of the Court, in the sense that it was in defiance of logic or moral standards. The Court would not go into the correctness of the choice made by the administrator open to him and the Court should not substitute its decision to that of the administrator. The scope of judicial review is limited to the deficiency in decision-making process and not the decision. To put it differently, unless the punishment imposed by the Disciplinary Authority or the Appellate Authority shocks the conscience of the Court/Tribunal, there is no scope for interference. Further to certain litigation it may, in exceptional and rare cases, impose appropriate punishment by recording cogent reasons in support thereof. In the normal course if the punishment imposed is shockingly disproportionate it would be appropriate to direct the Disciplinary Authority or the Appellate Authority to reconsider the penalty imposed. The power of the High Court under the Article is not confined to issuing of writs; it is broader, for under it, a High Court may also issue a suitable direction or order. Further the words in the Article in the nature of writs presumably imply that the High Court is not bound to follow all procedural technicalities of the English law relating to writs, or changes of judicial opinions from case to case. What appears to be necessary is that the High Courts keep the broad and fundamental principles of these writs as followed in the English Law. Basappa v. Nagappa, AIR 1954 SC 440. In 1976, Article 226 was subject to an important change and the scope of Article 226 has been restricted to fundamental rights only if there was another remedy available for the redress of the injury caused. But, the Forty-fourth Amendment Act, 1978 has restored the original position of the Article 226 in this context. There are following three-fold restrictions on their exercise of the power to issue writs -
(1) In the first place, the power is to be exercised "throughout the territories in relation to which it exercises jurisdiction", i.e. writs issued by the court cannot run beyond the territories subject to its jurisdiction.
(2) Secondly, the person or authorities to which the High Court issues such writs must be "within those territories." It clearly implies that they must be amenable to its jurisdiction either by residence or location within those territories.
(3) The powers so conferred on the High Courts should not be in derogation of the powers conferred on the Supreme Court by clause (2) of Article 32.Thus, the powers of the High Court are very wide. It has been empowered to issue writs or directions against all governmental authorities. Its jurisdiction is extraordinary, because these powers confer discretion of very extensive nature.
"Writ of habeas corpus is a prerogative process for securing the liberty of the subject by affording an affective means of immediate release from unlawful, unjustifiable detention and is available against the Executive".In Dhananjay Sharma v. State of Haryana, AIR 1995 SC 1795 it was observed that whenever a question is raised regarding the illegal detention of a citizen in a writ of Habeas Corpus and the Court issues the rule nisi, a duty is cast on the State, through its functionaries and particularly those who are arrayed as respondents to the writ petition, to satisfy the Court that the detention of the citizen was legal and in conformity not only with the mandatory requirements of the law but also with the requirements implicit in Article 22(5) of the Constitution of India. It is obligatory on the part of the State to place before the Court all relevant facts relating to the impugned detention truly, clearly and with utmost fairness through an affidavit. An affidavit in reply is required to be filed by the respondents not as a mere formality but to truly assist the Court in drawing permissible inference from the rival contentions. The right of personal liberty of a citizen is all too precious and no one can be permitted to interfere with it except in accordance with the procedure established by law. The State owes an obligation to the Courts to place all relevant facts before the Court in all cases where a citizen with his fundamental rights alleges interference. The writ of habeas corpus provides a prompt and effective remedy against illegal restraints. Thus, the object of the writ of habeas corpus is to release a person from illegal detention and not to punish the detaining authority. The question for a habeas corpus court is whether the subject is lawfully detained. If he is, the writ cannot issue, if he is not, it must issue. History - In England, habeas corpus is of common law origin. In India, the jurisdiction to issue prerogative writs came with the establishment of Supreme Courts at Calcutta, Bombay and Madras under the Regulating Act, 1773. On abolition of Supreme Courts and establishment of High Courts, the said power had been conferred on High Courts. Under the Constitution of India, the Supreme Court (Article 32) and all High Courts (Article 226) have power to issue a writ of habeas corpus. Who may apply - An application for 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 interest in the prisoner. Against whom habeas corpus would lie - A writ of habeas corpus may be issued against any person or authority who has illegally detained or arrested the prisoner. Procedure - Every application for the writ of habeas corpus must be accompanied by an affidavit stating the facts and circumstances leading to the making of such an application. If the court is satisfied that there is a prima facie case for granting the prayer, it will issue a rule nisi calling upon the detaining authority on a specified day to show cause as to why the rule nisi should not be made absolute. On the specified day, the court will consider the merits of the case and will pass an appropriate order. If the court is of the opinion that the detention was not justified, it will issue the writ and direct the detaining authority to release the prisoner forthwith. On the other hand, if according to the court, the detention was justified, the rule nisi will be discharged. Where there is no return to the rule nisi, the prisoner is entitled to be released forthwith. When may be refused - Since the object of the writ of habeas corpus is remedial and not punitive, the legality or otherwise of the detention must be decided by the court with reference to the date of return of the rule nisi and not with reference to the date of making such application. Thus, the writ would not be issued if at the time of the rule nisi, the prisoner was not illegally detained, even though at the time of detention the order was illegal. The following principles regarding a writ of habeas corpus emerge:
(1) A writ of habeas corpus is a remedial writ, which can be issued in all cases of wrongful deprivation of individual freedom and personal liberty.
(2) It, however, cannot be employed to impeach or otherwise challenge the correctness or propriety of a decision rendered by a court of competent jurisdiction.
(3) An order of release by habeas corpus does not per se amount to discharge or acquittal of the prisoner or detainee.
(4) Since a writ of habeas corpus is not punitive in nature, it cannot be utilized as an instrument of punishment of one who has wrongfully arrested or detained another.
(5) A prisoner or detainee himself or his relative or his friend or any other person interested in the prisoner or detainee can move the court for a writ of habeas corpus.
(6) Mere delay in applying for a writ of habeas corpus will not bar the prisoner of detainee from challenging arrest or detention.
(7) When the detainee contends that he is wrongfully detained, the burden is on the authority to justify the detention.
(8) The approach of the court in habeas corpus proceedings has to be one of eternal vigilance. The court must strike a balance between the need to protect the society on the one hand and the necessity to safeguard the liberty of a citizen on the other hand.
(9) In habeas corpus proceedings, it is the duty of the State to place before the court all the material facts and relevant record truly faithfully and with utmost fairness.
(i) It is a remedy operating in personam, therefore writ can be issued even where the authority has become functus officio, to the keeper of the records.
(ii) Writ can be issued against constitutional bodies (legislature, executive and judiciary or their officers), statutory bodies like corporations, non-statutory bodies like companies and cooperative societies and private bodies and persons.
(iii) Certiorari can be issued to quash judicial, quasi-judicial as well as administrative actions. The writ is corrective in nature, thus its scope of operation is quite large.
(iv) The purpose of certiorari is not only negative (to quash an action) but it contains affirmative or positive action also. In Gujarat Steel Tubes v. Mazdoor Sabha (AIR 1980 SC 1896), the Supreme Courtt held that while quashing the dismissal order, the court can also order reinstatement and the payment of back wages.A writ of certiorari can be issued if the following conditions are fulfilled :
(i) The judicial or quasi-judicial body must have legal authority;
(ii) Such authority must be an authority to determine questions affecting rights of subjects;
(iii) It must have duty to act judicially; and
(iv) It must have acted in excess of its authority.A writ of certiorari may be issued on the following grounds : (i) Error of Jurisdiction - When an inferior court or tribunal acts without jurisdiction, in excess of its jurisdiction or fails to exercise jurisdiction vested in it by law, a writ of certiorari may be issued against it. (ii) Jurisdictional Fact - Lack of jurisdiction may also arise from absence of some preliminary facts, which must exist before a tribunal exercise 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 or facts upon which an administrative agency's power to act depends can be called a `jurisdictional fact'. If an inferior court or a tribunal wrongly assumes the existence of such a fact, a writ of certiorari can be issued. In "Surya Dev Rai v. Ram Chander Rai" AIR 2003 SC 3044 it was observed that Certiorari jurisdiction though available is not to be exercised as a matter of course. The High Court would be justified in refusing the writ of certiorari if no failure of justice has been occasioned. In exercising the certiorari jurisdiction the procedure ordinarily followed by the High Court is to command the inferior Court or Tribunal to certify its record or proceedings to the High Court for its inspection so as to enable the High Court to determine whether on the face of the record the inferior Court has committed any of the preceding errors occasioning failure of justice. Certiorari, under Article 226 of the Constitution, is issued for correcting gross errors of jurisdiction, i.e., when a subordinate Court is found to have acted -
(i) without jurisdiction - by assuming jurisdiction where there exists none, or
(ii) in excess of its jurisdiction - by overstepping or crossing the limits of jurisdiction, or
(iii) acting in flagrant disregard of law or the rules of procedure or acting in violation of principles of natural justice where there is no procedure specified, and thereby occasioning failure of justice.In Shauqin Singh v. Desa Singh AIR 1970 SC 672, the relevant statute empowered the Chief Settlement Commissioner to cancel an allotment of land if he was "satisfied" that the order of allotment was obtained by means of `fraud, false representation or concealment of any material fact'. The Supreme Court held that the satisfaction of the statutory authority was a jurisdictional fact and the power can be exercised only on the existence there. (iii) Error apparent on face of 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. (iv) Violation of natural justice - A writ of certiorari can be issued when there is violation of the principles of natural justice. (v) Who may apply - Normally the party whose rights are affected may apply for a writ of certiorari. But if the question affects the public at large, any person may apply. The distinction, however, is that where the application is made by the aggrieved party, the court should grant relief ex debito justitiae, but if it is made by a party not directly affected in the litigation, grant of writ is entirely in the discretion of the court. (vi) Against whom certiorari would lie. - A writ of certiorari is a judicial writ. It lies against subordinate courts, inferior tribunals, quasi-judicial bodies and adjudicating authorities. (vii) Alternative remedy - A writ of certiorari is a discretionary remedy and the fact that the aggrieved party has another adequate remedy may be taken into consideration and it may not be issued on that ground. But as discussed above, it is a rule of policy, convenience and discretion and not of jurisdiction and in spite of alternative remedy being available it may be issued where the order is on the face of it erroneous or the inferior court or tribunal has acted without jurisdiction or in excess of its jurisdiction or contrary to the principles of natural justice or there is infringement of a fundamental right of the petitioner.
(1) Notwithstanding anything in this Chapter, the Supreme Court may, in its discretion, grant special leave to appeal from any judgment, decree, determination, sentence of order in any cause or matter passed or made by any court or tribunal in the territory of India.
(2) Nothing in clause (1) shall apply to any judgment, determination, sentence or order passed or made by any court or tribunal constituted by or under any law relating to the Armed Forces." (ii) Object - The rapid growth of administrative law has brought into existence many administrative tribunals and adjudicating bodies. They are invested with wide judicial and quasi-judicial powers thereby necessitating effective control. With this object in mind, the framers of the Constitution have conferred very wide and extensive powers on the Supreme Court.(iii) - The article commences with the words "Notwithstanding anything in this Chapter". These words indicate that the intention of the Founding Fathers of the Constitution was to disregard in extraordinary cases the limitations contained in the previous articles on the power of the Supreme Court to entertain appeals. The Supreme Court can grant special leave and hear appeals even though no statute makes provision for such an appeal. However, Article 136 does not confer a right on any party but confers a discretionary power on the Supreme Court. In other words, a party cannot approach the Supreme Court under Article 136 as of right. The grant of special leave to appeal is, thus, entirely a matter of discretion of the Supreme Court. (iv) The language of Article 136 is very wide and comprehensive. (v) When Supreme Court may refuse leave - Though this power is comprehensive and undefined, the court has imposed certain limitations upon its own powers. This power is extraordinary and it should be exercised only in exceptional circumstances. Thus, the Supreme Court would not ordinarily grant a leave against the order of a tribunal where the alternative remedy is available, or finding of act is challenged, or the matter falls within the discretion of the authority, or where a new point is raised for the first time before the Supreme Court, or where the petitioner is unable to show the presence of special circumstances to grant special leave. When Supreme Court may grant leave - On the other hand, in the following circumstances the Supreme Court would entertain the appeal under Article 136 : Where the tribunal has acted in excess of jurisdiction or has failed to exercise jurisdiction vested in it; or where there is error apparent on the face of the record; or where the order is against the principles of natural justice; or where irrelevant considerations have been ignored; or where the findings of the tribunals are perverse; or where there is miscarriage of justice.
(i) The Ombudsman is an independent and non-partisan officer of the legislature who supervises the administration;
(ii) He deals with specific complaints from the public against administrative injustice and mal-administration (or may proceed on his own information in similar circumstances);
(iii) He has the power to investigate, criticize and report back to the legislative, but not to reverse administrative action.Usually, the Ombudsman is a lawyer, Professor or Judge with no political or financial axe to grind. He is paid very well and is elected for four years term. He makes a detailed annual report to the Parliament and he sats out the reactions of the people against the Government, their complaints against it together with his recommendations for eliminating the causes for the complaints. Historical growth - This institution originated in Sweden in 1809 and thereafter it has been accepted in other countries including Denmark, Finland, New Zealand, England and India (Lokpal and Lokayukta) Powers and duties - The Ombudsman inquires and investigates into complaints made by citizens against abuse of discretionary power, mal-administration or administrative inefficiency and takes appropriate actions. For that purpose, very wide powers are conferred on him. He has access to departmental files. The complainant is not required to lead any evidence before the Ombudsman to prove his case. It is the function and duty of the Ombudsman to satisfy himself whether or not the complaint was justified. He can even act suo motu. He can grant relief to the aggrieved person, as unlike the powers of a civil court, his powers are not limited. The authority of Ombudsman extends to the police, the armed forces, and the personal houses, the hospital and mental health authorities and to the whole of the civil service. The only institutions exempted from his cognizance are :-
(2) Law courts, and
(3) Autonomous Local Councils.Anyone may complain to him. Letters from convicted persons are uncensored. Furthermore, he need not wait for complaints; he can take action sou motu. He can examine any activity, civil or military, look into even secret files, and summon anyone to appear before him and grant legal aid to sue any branch of the Government. When he considers that a Minister has to be made answerable at law for his conduct or official acts, he can recommend Parliament to call him to account.
"The State shall so direct its policy, that (a) the ownership and control of material resources of the community are distributed to subserve the common good, and (b) the operation of the economic system shall not result in the concentration of wealth and means of production to the common detriment." (Article 39 of the Constitution).The above provision naturally gave impetus to public sector. It can be said that a corporation created by or under a statute possesses the following main characteristics :
(1) A Corporation is established by or under a statute. It possesses an independent corporate personality and it is an entity different from the Union or the State Government.
(2) There may be several members or shareholders of a corporation. The law, however, knows only one body corporate. Juristic personality of corporation is distinct from its individual members.
(3) A Corporation exercises its rights, performs its functions and discharges its duties and obligations entrusted to it by its constituent statute. Its powers do not extend beyond what the statute provides expressly or by necessary implication.
(4) Every action of a corporation not expressly or impliedly authorised by the statute or charter is ultra vires and having no legal effect whatsoever.
(5) A Corporation can possess, hold and dispose of property.
(6) Subject to the provisions of the statute by or under which a corporation is created, such corporation is by and large an autonomous body. Even though the ownership, control and management of a corporation might be vested in the Union or the State.
(7) The constituent statute or charter may delegate the rule-making power to a corporation.
(8) A corporation created by or under a statute can be said to be an agency or instrumentality of the Government and `State' within the meaning of Article 12 of the Constitution, and therefore, is subject to the jurisdiction of the Supreme Court under Article 32 and the High Courts under Article 226 of the Constitution :
(9) Employees of a corporation do not hold `civil post' under the Union or the State within the meaning of Part XIV of the Constitution of India.
(10) A corporation cannot be said to be a `citizen' within the meaning of Part II of the Constitution and, therefore, it cannot claim benefits of those Fundamental Rights which have been conferred only on the citizens.The public corporation in India can be classified under three heads -
(i) Financial Corporations, like the L.I.C., Reserve Bank of India, Export Credit and Guarantee Corporation Ltd., Film Finance Corporation Ltd., etc.
(ii) Promotional and Development Corporations, like Food Corporation of India, Rehabilitation Housing Corporation Ltd., National Research Development Corporation Ltd., etc.
(iii) Commercial and Industrial Corporations such as State Trading Corporation, Hindustan Machine Tools Ltd., Indian Airlines Corporation, etc.Working of Public Corporations - The Constitution of the corporations and their functions, powers and duties may be understood by a study of the actual working of a few public corporations. (i) Reserve Bank of India (RBI) - The Reserve Bank of India was constituted under the Reserve Bank of India Act, 1934. It was nationalized in 1948 by the Reserve Bank (Transfer to Public Ownership) Act, 1948. It was primarily established to regulate the credit structure, to carry on banking business and to secure monetary stability in the country. A Board of Directors, consisting of a Governor, two Deputy Governors and a number of directors manages it. They are appointed by the Central Government for a term of five years and are eligible for re-employment. Under the Banking Companies Act, 1949, the Reserve Bank has extensive powers over the banking business in India. It grants licences without which no company can carry on banking business. Before granting such licence, it can inquire into the affairs of the company to satisfy itself as regards the company's capacity to pay back to its depositors. It can cancel a licence on the ground that the conditions specified therein have not been complied with. Even after granting such a licence it may inquire into the affairs of any bank, inspect its books of accounts and hold an investigation either under the direction of the Central Government or suo motu. The report of the inquiry will have to be sent to the Central Government. Very wide discretionary powers have been conferred on the Reserve Bank. It determines the policy relating to bank advances, frames proposals for amalgamation of two or more banks. It may make a representation for the operation of the Banking Companies Act to be suspended. The Governor of the Bank is empowered to suspend the operation of the Act for 30 days in an emergency. (ii) Oil and Natural Gas Commission (ONGC) - The commission was first established in the year 1956 as a Government department. By the Oil and Natural Gas Commission Act, 1959, the commission was given a status of a public corporation. The commission consists of a Chairman and two or more (not exceeding eight) members, to be duly appointed by the Central Government. Except a Finance Member, others may be part-time or full-time members. The Central Government prescribes the rules fixing their terms of office and conditions of service. It can remove any member even before the expiry of the period, after issuing a show-cause notice. Its functions range from planning, promotion, organization or implementation of programs for the development of petroleum resources to production and sale of petroleum products it produces. It conducts geological surveys for the exploration of petroleum and undertakes drilling and prospecting operations. The commission determines its own procedure by framing rules and its decisions are by majority vote. The Government can acquire lands for the purposes of the commission under the provisions of the Land Acquisition Act, 1894. (iii) Damodar Valley Corporation (DVC) - The Damodar Valley Corporation was established under the Damodar Valley Corporation Act, 1948. Like other corporations, it is a body corporate having perpetual succession and a common seal. The Board of Management consists of a Chairman and two members appointed by the Government of India in consultation with the Governments of the States of Bihar and West Bengal. The members are whole-time, salaried employees of the Corporation. The Government of India is empowered to remove and member any member for incapacity or abuse of position. The objects of this Corporation are to promote and operate irrigation schemes, water supply, drainage, generation of electricity and electrical energy, navigation, etc. in the river Damodar. The river is well known for its notorious propensities. Due to heavy flooding which causes wide-spread damage and destruction in the States of Bihar and West Bengal, one of the important objects of the Corporation is flood control. It is empowered to establish, maintain and operate laboratories, experimental institutions and research stations to achieve the above-mentioned objects. It helps in construction of dams, barrages, reservoirs, power houses, etc. It supplies water and electricity and can levy rates for it. The Corporation is empowered to acquire, hold and dispose of property. It has its own funds deposited in the Reserve Bank of India. It can borrow money with the previous approval of the Government of India. It has a separate and independent existence and it is an autonomous body independent of the Central or the State Governments. There is no interference by the Government in the matter of execution of its programs and day-to-day administration. Nevertheless, the Corporation is subject to overall control of the Central Government, Parliament and the State legislatures of Bihar and West Bengal. It has to send its annual reports to the Governments. They are placed on the tables of Parliament and the two State legislatures. The accounts of the Corporation are to be audited in the manner prescribed by the Auditor General of India. (iv) Life Insurance Corporation of India (LIC) - The Life Insurance Corporation of India was established under the Life Insurance Corporation Act, 1956. It shares certain common characteristics with the other corporations. It is a body corporate with perpetual succession and a common seal. It has power to acquire, hold and dispose of property. It can sue and be sued. The Corporation was established `to carry on life insurance business' and given the privilege of carrying on this business to the exclusion of all other persons and institutions. The Act requires the Corporation to develop the business to the best advantage of the community. The Central Government may give directions in writing in the matters of policy involving public interest. Such directions shall guide the corporation. 95% of the profits are to be reserved for policy holders and the balance is to be utilized as the Central Government may decide. The corporation is an autonomous body. It is free from ministerial control except as to the broad guidelines of policy. (v) Road Transport Corporations (RTCs) - Various State Governments have established Road transport Corporations for their respective State under the Road Transport Corporation Act, 1950, e.g. Gujarat State Road Transport Corporation. A Road Transport Corporation is managed by a Chief Executive Officer, a General Manager and a Chief Accountant appointed by the State Government concerned. The Central Government contributes the capital in part, while the remaining capital is to be borne by the State Government concerned in agreed proportions. The Corporations can raise capital by issuing non- transferable shares. The government guarantees the capital, the shares and the dividends. The primary function of the Corporation is to provide efficient, adequate, economical and a properly coordinated system of road transport service in the country. The State Government is empowered to issue general instructions for the efficient performance of the functions of the Corporation. It manufactures, purchases, maintains and repairs rolling stock, appliance, plant and equipment. It can acquire, hold and dispose of property. (vi) State Trading Corporation (STC) - State Trading Corporation of India is a Government company. The Government wholly owns the Central Government and two Secretaries of the Government of India hold it and all the shares. The object of the corporation as laid down in the Memorandum of Association is to organize and undertake generally with the State trading countries as also other countries in commodities entrusted to it for such purpose by the Central Government from time to time the purchase, sale and transport of such commodities in India or anywhere else in the world. Since it is constituted under the Companies Act, 1956 all the provisions of the Act apply to it. A competent court can wind it up. Its functions are commercial in nature. It is neither a department nor an organ of the government of India.
(1) Legislation - The parliamentary control begins with the very Act of legislation which brings the corporations into existence. Parliament in India does take great pains to fulfil this responsibility.
(2) Laying of rules and regulations - By this process some of the Acts setting up public corporations provide that rules made under these Acts are to be laid before parliament.
(3) Questions - Under Rule 32 of the Rules of Procedure of the Lok Sabha unless Speaker otherwise directs, the first hour of every sitting shall be available for the asking and answering questions.
(4) Half an hour discussion. - Under Rule 55 of the rules of procedure of the Lok Sabha, the Speaker can provide half an hour for raising discussion on a matter of a recent question and answer which needs elucidation on matter of fact.
(5) Statement by Ministers. - Under Rule 372 of the Lok Sabha Rules, Minister may make a statement on a matter of public importance with the consent of the Speaker. So far, however, the method has not been used extensively in the matter of public corporations.
(6) Resolution. - Discussion on matters relating to public corporation may occur through the medium of resolution (Rules 136 and 137 of the Rajya Sabha Rules).
(7) Motions. - Actually motions provide the general form of discussion of matters related to a public corporation while the other procedures afford special opportunities.
(8) Parliamentary Committee - In 1957, Estimates Committee recommended that public undertakings should prepare a performance and programme statement for the budget year together with the previous year's statement and it should be made available to Parliament at the time of the annual budget.Government Control - The government exercises control over public undertaking through various ways. It exercises the power to appoint and remove the Chairman, directors or members of the Board and the managing director. The Government also controls the appointment of senior executive officers. The rule regarding the regulation of Constitution of services of employees of these public corporations require the approval of the Government. The Comptroller and Auditor General exercises varying degree of control in the matter of audit of accounts of the corporations. (A) Appointment and removal of members - Generally, the power of appointment and removal of the Chairman and the members of a public corporation is vested in the Government. This is the key provision and the most effective means of control over a public corporation. In some statutes, a provision is made for removal of a member on the ground that the member is absent from meetings for a specified period, he is adjudged a bankrupt or is `otherwise unsuitable' to continue as a member. (B) Finance - The Government exercise effective control over a public corporation when such corporation is dependent on the Government for finance. A statute may require previous approval of the Government for undertaking any capital expenditure exceeding a particular amount. It may also provide to submit to the Government its programme and budget for the next year and to submit the same in advance. It may also impose a condition on the corporation to take consent of the Government before borrowing money or may insist for issuance of bonds and debentures to secure payment made by the government to the corporation. The Comptroller and Auditor General exercises control in the matter of audit of accounts submitted by public corporations. (C) Directives - An important technique involved to reconcile governmental control with the autonomy of the undertaking is to authorize the Government to issue directives to public undertakings on matters of `policy' without interfering with the matters of day-to-day administration. A statute may empower the government to issue such directives, as it may think necessary on questions of policy affecting the manner in which a corporation may perform its function. (D) Rules and Regulations - Usually a constituent statute creating a corporation contains provisions to make rules and regulations. The provision empowers the Central Government to make rules `to give effect to the provisions of the Act.' The other provisions authorize the corporation `with the prior approval of the Central government' to make regulations `not inconsistent with the Act and the Rules made thereunder' for enabling it to discharge its functions under the Act. Thus, even in case of framing rules and regulations, the Government is having the upper hand. Regulations promulgated without previous approval of the Government cannot be said to be valid.