Administrative law
Administrative law is the by-product of ever-increasing functions of the Governments like health, education, pollution, inequality etc. As the complexity of these tasks grows, so does the administrative structure around them. This causes a growth in administrative law.
Sources of Administrative Law in India
There are four principal sources of administrative law in India:-
- Constitution of India
- Acts/Statutes
- Ordinances, Administrative directions, notifications and Circulars
- Judicial decisions
Administrative Discretion
It means the freedom enjoyed by the administrative authority to choose from among various alternatives when it comes to governance. Such choice however, cannot be arbitrary and unreasoned. Once made, it acts like precedence for future reference.
Judicial Control over Administrative Actions
In exercise of their powers, the administration can also make mistakes or there can be an abuse of power. In order to keep a check on these, the Constitution allows for a judicial check on the exercise of such powers by providing a mechanism for redressal. In India, judicial control of administrative action is classified under three heads Constitutional, Statutory and Ordinary or equitable.
Judicial review
Judicial review involves a review of the manner in which the decision has been made, not an appeal from the decision itself; it is concerned with the decision making process. It covers not only the legislative but also the executive or administrative acts.
Learn and Read More CS Executive JIGL Question and Answers
Voidable order
A voidable order is one that is legally valid at its inception, and it remains valid until it is set aside or quashed by the courts, that is, it is legally binding till it is quashed.
Void order
A void order is void ab initio, and hence a nullity.
Constitutional review
Constitutional review means to check whether or not laws within the State confirm to the Constitution. If not, they can be amended to bring them in line with the Constitution. This is possible because the Constitution of India is seen as the supreme source of authority and all the organs of state derive their existence from it.
The provision for judicial review is also made in the Indian Constitution. Hence, if an Act is found in violation of the Constitution, the Court has to declare it unconstitutional and void. Such an Act would then be open for review.
Injunction
An injunction is a measure of preventive remedy. It is a judicial order that bars one from the doing of an act that invades or threatens to invade the rights of another. It restricts both – the commencement of such an act and its continuance. In India, preventive remedies or injunctions are covered under the Specific Relief Act, 1963.
Prohibitory injunction
Prohib Prohibitory injunction forbids the defendant to do a wrongful act, which would infringe the right of the plaintiff. It can further be classified as interlocutory or temporary injunction or perpetual injunction.
Temporary injunctions
Temp: Temporary injunctions are those which are to continue until a specified time or until further orders of the court (Section 37 for the Specific Relief Act). It is ordered as an interim measure to preserve the status quo of the situation or the case until it is heard and finally decided.
Perpetual injunction
A perpetual injunction is granted at the conclusion of the proceedings and finally determines the rights of the parties. Such an injunction might not be perpetual. It may be issued for a fixed period, with or without the right to apply for an extension or even for an indefinite period terminable when certain conditions have been complied with by the defendant.
Mandatory injunction
The mandatory injunction prohibits the defendant from continuing with a wrongful act and is also capable of enjoining the defendant to do the act promised.
The Principle of Natural Justice
It is a concept of Common Law. It is derived from the procedural principles developed by judges. Although there exists no specific constitutional requirements regarding this principle, it is one of the foremost requirements of all legal procedures. It is required in order to give faith to the people relying on the legal system.
Rule against bias (nemo judex in causa sua)
This rule says that no person can be a judge in his own case. Here, bias means a presumption that a person cannot make a disinterred decision if he has some involvement or interest in a cause.
Company Secretary Executive Program JIGL Chapter 1 Administrative Law Distinguish Between
Question 1: Differentiate between constitutional and judicial review.
Answer:
Difference between constitutional and judicial review
Constitutional review means to check whether or not laws within the State confirm to the Constitution. If not, they can be amended to bring them in line with the Constitution. This is possible because the Constitution of India is seen as the supreme source of authority and all the organs of state derive their existence from it.
The provision for judicial review is also made in the Indian Constitution. Hence, if an Act is found in violation of the Constitution, the Court has to declare it unconstitutional and void. Such an Act would then be open for review. [Marbury v. Madison]
Judicial Review – This is provided for in the Constitution as a check over administrative action. This is the authority given to the Courts that they can declare void those acts of the legislature and executive that are found in violation of the provisions of the Constitution.
Under this authority, the Court can cause alteration in the statutes. Judicial Review is the power of the highest Court within a particular jurisdiction to invalidate on Constitutional grounds the acts of other Government agencies within its jurisdiction.
The doctrine of judicial review has originated in the American Supreme Court, although there is no explicit Constitutional provision regarding the same. The differences between the two are as follows:
Company Secretary Executive Program JIGL Chapter 1 Administrative Law Descriptive Questions
Question.1: What are administrative laws?
Answer:
Administrative laws
This is the division of law that deals with powers, functions and responsibilities of the various organs of the State administration. Administrative law can be defined variously – There is no single universal definition of ‘administrative law’ because it means different things to different theorists.
Kenneth Culp Davis, a leading American legal scholar on administrative law, defines it as “the law concerning the powers and procedures of administrative agencies, including especially the law governing the judicial review of administrative action.”
Ivor Jennings defined administrative law as “the law relating to administration. It determines the organisation, powers and duties of administrative authorities.” Administrative law is the by-product of ever increasing functions of the Governments.
Since the modern state is essentially a welfare state. Administration in a State requires a collection of complex tasks related to various fields like health, education, pollution, inequality etc. As the complexity of these tasks grows, so does the administrative structure around them. This causes a growth in administrative law.
Question 2: Why is administrative law needed?
Answer:
There are three parts to the structure of a modern State –
- The legislative
- The executive
- The judiciary
Traditionally, the legislative made the laws and statutes for the State, which the executive then implemented. If there arose disputes in the implementation of these laws, the judiciary then would help in the settlement of those.
However, given the pressure on the legislative in the current era, as well as the time-consuming and expensive judicial processes, it was essential to have administrative laws to cover many functional areas.
Administrative law covers the following:
- Policy making
- The execution, administration and adjudication of the law
- Exercise of legislative powers and the issue of rules, bye- laws and orders of a general nature.
Administrative law, hence, can be seen as being exercised by thousands of government officials in the fulfillment of their duties. While such laws make governance of a State easier, there are also provided checks against the abuse of such powers within the State itself, so that private individuals do not suffer at the hands of such officials as are misusing such authority.
Question 3: What are the Sources of Administrative Law?
Answer:
There are four principal sources of administrative law in India:
Constitution of India:
It is the primary source of administrative law. It gives powers to various authorities; at the same time it creates various tribunals and authorities to exercise this power.ibel
Acts/ Statutes:
These Acts made under the Union and State Lists help in several areas of governance and administration.
Ordinances, Administrative directions, notifications and circulars:
Ordinances are orders issued when the legislature is not in session and therefore cannot make laws via the normal route.
If then some urgent situation arises that requires to be addressed by some law, then ordinances are made as temporary law, which are placed before the Parliament when next it sits in session.
Administrative directions, notifications and circulars are issued by the executive to help in the smooth running of the processes of the State under various Acts.
Judicial decisions:
These decisions help in smooth running of the State and act as a check against abuse of power by any entity.
Question 4: What is administrative discretion?
Answer:
Administrative discretion
Administrative Discretion It means the freedom enjoyed by the administrative authority to choose from among various alternatives when it comes to governance. Such choice however, cannot be arbitrary and unreasoned. Once made, it acts like precedence for future reference.
The flexibility of discretion allows the authority to address different situations differently and to respond to urgencies in a prompt and suitable manner. This allows it to make use of a vat repertoire of technical knowledge, expertise and know-how.
This in turn, helps the administration to give the best suited response to any situation. Hence, the principle of discretion allows for change, amendment or abrogation. This allows for the treatment of situations on a case to case basis.
Question 5: Explain judicial control over administrative actions?
Answer:
Judicial control over administrative actions
Judicial Control over Administrative Actions – In exercise of their powers, the administration can also make mistakes or there can be an abuse of power. In order to keep a check on these, the Constitution allows for a judicial check on the exercise of such powers.
This is done by providing a mechanism for redressal. This is especially needed in a country that bases itself on socialistic and welfare principles. In India, judicial control of administrative action is classified under three heads – Constitutional, Statutory and Ordinary or equitable.
Question 6: Explain statutory review.
Answer:
Statutory review
It is a means of judicial control over administrative actions. The method of statutory review can be divided into two parts:
Statutory Appeals: Certain Acts provide for appeals from the decisions of statutory tribunals to the High Court. This can be done on points of law.
Reference to the High Court: There are several statutes, which provide for a reference by an administrative tribunal to the High Court. If the party to a case is unhappy with the statement of the case, he may appeal to the High Court, and if the Court thinks fit, it may ask the tribunal to amend the procedure undertaken in that case.
Question 7: What are the points to be kept in mind regarding judicial review?
Answer:
The points to be kept in mind regarding judicial review
Some important points to be kept in mind regarding it are – benounenu Judicial review involves a review of the manner in which the decision has been made, not an appeal from the decision itself; it is concerned with the decision making process. de erit acieri, mut nivelt word-wool bre It covers not only the legislative but also the executive or administrative acts.
As far as executive acts are concerned, the court sees whether they are within the scope of authority or power conferred on the authority exercising the power or not. Wherever the act of executive is found to be ultra virus the Constitution or the relevant Act, it is declared void.
Such intervention comes when there is abuse of power or discretion by the executive or administrative.
The court is to confine itself to the question of legality. Its concern should be whether any of the following occurred –
- Excess of powers given to an authority
- An error of law
- A breach of rules of natural justice
- Unreasonable decision
- Abuse of power [Mansukhlal Vithaldas Chauhan v State of Gujarat].
Question 8: When an authority required to observe natural justice in making an order fails to do so, should the order made by it be regarded as void or voidable?
Answer:
A voidable order is one that is legally valid at its inception, and it remains valid until it is set aside or quashed by the courts, that is, it is legally binding till it is quashed. On the other hand, a void order is void ab initio, and hence a nullity.
Usually, a violable order cannot be challenged in a collateral or secondary proceeding. It has to be set aside or declared null and void by the court in separate proceedings for the purpose. Suppose, a person is prosecuted criminally for infringing an order, he cannot then plead that the order is voidable. He can raise such a plea if the order is void.
In India, commonly the judicial opinion has been that a quasi-judicial order made without following natural justice is void and nullity [Nawabkhan v. Gujarat].
Question 9: What are the main characteristics of statutory corporations?
Answer:
The main features of Statutory Corporations are as follows:
- Freedom from government regulations, as it has its own set of governing rules, which are given in the statute that forms it.
- High degree of operating and financial flexibility.
- Balance between the autonomy and flexibility as enjoyed by private enterprises and responsibility to the public as represented by elected members and legislators, representing various sections. of a valid
- For the validity of the corporation contract, the requirements contract laid down in Article 299 are not required to be complied with. There are, however, several drawbacks to this structure –
- Difficulty of balancing autonomy of the corporation with public accountability.
- Since it is not a department or organ of the Government, its employees are not regarded as Government servants and therefore they are not entitled to the protection of Article 311 of the Constitution.
- However, a public corporation is included within the meaning of ‘State’ under Article12 and therefore the Fundamental Rights can be enforced against it.
- Moreover, since Public corporations are included within the meaning of ‘other authorities’ and therefore it is subject to the writ jurisdiction of the Supreme Court under Article 32 and of the High Court under Article 226 of the Constitution.
- As per the requirements of the principle of vicarious liability, a corporation is liable to pay damages for wrongs done by its officers or servants. It is liable even for torts requiring a mental element as an ingredient, e.g. malicious prosecution. In India, local authorities like Municipalities and District Boards have been held responsible for the tort committed by their servants or officers.
Question 10: Explain the stages of judicial review.
Answer:
Judicial review is exercised at two stages:
Judicial review at the stage of delegation of discretionary power – If the law confers vague and wide discretionary power on any administrative authority, it may be declared ultra vires specific Articles of the Constitution, viz, Articles 14, 19 and other provisions. In such a situation, the court can control the giving of such discretion on the ground of excessive delegation [Dr. Ram Manohar v. State of Delhi].
Judicial review at the stage of exercise of discretion – No administrative action can go against fundamental rights, even if the action is done under exercise of discretionary powers. So even if an authority cites discretionary authority as the source of its power but does something that is unconstitutional, the action can still be declared void.
The courts in India have summed up all indiscretions under two broad heads:
- Improper use of discretion or abuse of discretion.
- Authority has not exercised its discretion at all- ‘non-application of mind’.
Question 11: When is Abuse of discretion deemed to occur?
Answer:
It occurs in the following cases –
Mala fides: This happens in the case of use of the discretionary power by the authority with bad faith or dishonest intention. In such a situation, the action taken in bad faith is quashed by the court, since it is taken as abuse of discretion. In some cases, it would also be taken as fraud. [Tata Cellular v. Union of India].
Irrelevant considerations: If an Act gives authority for any purpose, it is to be used for that purpose and for that purpose only. Such contrary use of powers delegated by a statute is to be quashed by the courts. Moreover, in exercise of such power, if the authority so exercising it, considers factors, circumstances or events that may be
said to be wholly irrelevant or extraneous to the purpose mentioned in the statute, then the administrative action is deemed to be void, as abuse of discretion makes the action devoid of authority.
Leaving out relevant considerations: If any relevant facts or considerations are left out, the action taken by the authority wielding such power will be vitiated.
Arbitrary orders: Orders made by such authorities cannot be arbitrary or different in similar situations. Such orders can solely be based on hard fact, not the vagaries of the person in the seat of authority.
Improper purpose: The use of such power for a purpose other than that intended will also amount to abuse of discretion.
Colourable exercise of power: When the ostensible purpose for which the power has been used hides the real purpose, it is taken as colourable exercise of the discretionary power and is deemed void.
Non-compliance with procedural requirements and principles of natural justice: If the procedure laid down in the statute is mandatory and not discretionary, if not followed, it will vitiate the act itself.
Exceeding jurisdiction: An action of the authority that is in excess of its powers is deemed to be ultra vires, since the statute itself does not allow for it.
Space to write important points for revision
Question 12: When is Non-application of mind deemed to occur?
Answer:
It occurs in the following cases-
Acting under direction: Where the authority taking an action is acting not on its own volition but on the instructions given by a superior authority, it is taken as non-exercise of power by the authority. Such an action is considered as non-application of mind [Commissioner of Police v. Gordhandas Bhanji]
Self-restriction: If the authority itself restricts its powers by declaring some other rules to be fulfilled before it can exercise its powers, an action taken under these restrictions can also be termed as bad.
Acting mechanically and without due care: When an authority acts without care, not exercising its discretion to look deeper into any matter, such an action is termed as a bad action.
Question 13: What is Ordinary or Equitable review?
Answer:
Ordinary or Equitable review
Ordinary or equitable review is a remedy available against the administration. Under this, appeals can be made to the ordinary courts. These remedies include:
Injunction – An injunction is a measure of preventive remedy. It is a judicial order that bars one from the doing of an act that invades or threatens to invade the rights of another. It restricts both – the commencement of such an act and its continuance.
In India, preventive remedies or injunctions are covered under the Specific Relief Act, 1963. It can be issued in cases where jurisdiction has been wrongly exercised or where the authority exercising it is the wrong authority. Injunctions can be issued against both administrative and quasi-judicial bodies. They are of two types – prohibitory and mandatory.
Prohibitory Injunction: Prohibitory injunction forbids the defendant to do a wrongful act, which would infringe the right of the plaintiff. It can further be classified as interlocutory or temporary injunction or perpetual injunction.
Interlocutory or temporary injunction: Temporary injunctions are those which are to continue until a specified time or until further orders of the court (Section 37 for the Specific Relief 10 Act).
It is ordered as an interim measure to preserve the status quo of the situation or the case until it is heard and finally decided. It may be granted at any stage of a suit and comes under the Civil Procedure Code.
Such injunctions are necessarily provisional in nature. It does not finally declare or determine a right. The granting of temporary injunction is a discretionary right in the hands of the court.
Perpetual injunction: A perpetual injunction is granted at the conclusion of the proceedings and finally determines the rights of the parties. Such an injunction might not be perpetual. It may be issued for a fixed period, with or without the right to apply for Feeder an extension or even for an indefinite period terminable when certain conditions have been complied with by the defendant.
Mandatory injunction: This is generally issued to prevent the breach of an obligation or to compel the performance of certain. This too, is a discretionary power. Such an injunction prohibits the defendant from continuing with a wrongful act and is also capable of enjoining the defendant to do the act promised.
Declaratory Action – In some cases where wrong has been done to a person by an administrative act, declaratory judgments may be the appropriate remedy. Also known as a
Declaratory Decree, it is a judicial order issued by the court declaring rights of the parties without giving any further relief. This is done to remove the existing doubts about the rights of parties. It is an equitable remedy. However, it is discretionary in the hands of the Court and cannot be claimed as a matter of right by either party.
Action for damages – If any injury is caused to an individual by wrongful or negligent acts of administrative authority, the aggrieved person can file suit for the recovery of damages from the Government concerned, Central or State.
Question 14: What are the Principles of Natural Justice?
Answer:
The Principles of Natural Justice
The Principle of Natural Justice is a concept of Common Law. It is derived from the procedural principles developed by judges. Although there exist no specific constitutional requirements regarding this principle, it is one of the foremost requirements of all legal procedures.
It is required in order to give faith to the people relying on the legal system. In India, the principles of natural justice are implied in Articles 14 and 21 of the Constitution. Previously, this principle was said to have included two rules: rule against bias and rule of fair hearing. Over the years, many sub-rules were added.
Rule against bias (nemo judex in causa sua): This rule says that no person can be a judge in his own case. Here, bias means a presumption that a person cannot make a disinterred decision if he has some. involvement or interest in a cause. Hence, this rule has two main aspects- one, the person judging a case must not have any direct personal stake in the case in hand and two, there must not be a probability of bias. Bias can be of the following three types:
Pecuniary bias:
This involves a financial interest in the subject matter. The quantum of interest does not matter; even an insufficient amount will disqualify a person from acting as a Judge in a particular case.
Personal bias:
This may come in various forms – the judge being on friendly terms with either of the parties, or having familial, professional or business ties or even bias against the parties in the form of hostility towards one of the parties to a case. Bias can exist in favour of, or against a party.
Whatever be the situation, it will create grounds for disqualification for a person to act as a Judge [Mineral Development Ltd. V. State of Bihar]. Actual proof of prejudice is inessential, even if there exists reasonable ground for assuming the possibility of bias, it is sufficient to create a disqualification against the judge.
Subject matter bias:
This ground requires a proximate and direct connection between the judge and the case in issue. Hence, a strong likelihood of bias must exist in this situation. It can be classified into four categories – (1) Partiality or connection to the issue (2) Departmental bias (3) Prior utterances and pre-judgment Of issues (4) Acting under dictation.
Rule of fair hearing (audi alterem partem):
It literally means ‘to give a hearing to the other side’. According to this rule, both sides to a case should be heard before passing the order. It also requires that both parties should be given sufficient opportunity to present their respective cases.
This rule involves the following:
Right to notice:
A party to a case can respond only when he has notice that a case has been filed against him. Hence, each party has a right to receive notice of all actions taken by the other party. Hence, the right to receive notice is inherent. Notice is the first step in the initiation of a case.
Right to present case and evidence:
Both parties have to be given full opportunity to present their side of the case. This includes presentation of evidence too. This right includes also both oral and written representations.
Right to rebut adverse evidence:
This is the opportunity given to a party to counter the evidence produced against him. This can be done in two ways –
Cross-examination:
Examination of a witness presented by a party by the counter party is known as cross-examination. Its main purpose is to detect deception in the statement of the witness.
Legal Representation:
The right to legal representation is essential in certain cases; if this right is not ensured, then a violation of natural justice is presumed. This is especially true in cases where the case involves a question of law or a subject matter which is complicated and includes some legal technicality or where the person is illiterate or expert evidence is on record or the donde prosecution is conducted by legally trained persons, the denial of legal representation to the other party will amount to violation of natural justice because in such conditions the party may not be able to present his side of the case effectively.
Disclosure of evidence:
This is essential because a party cannot fully present his case unless he is allowed to disclose all evidence that he has accumulated.
Speaking orders:
A speaking order is an order that explains the decision. Such an order is more acceptable to the parties. It also provides a check on the administrative powers because the decisions need to be based on logical and coherent reasons. Such a requirement also bars arbitrariness of decisions [Sunil Batra v. Delhi administration]. Space to write important points for revision
Question 15: What are the exceptions to natural justice?
Answer:
Exceptions to Natural Justice
Ordinarily, anyone affected by any action of the administrative can claim a right to natural justice. However, such a right is waived off in the following circumstances –
Statutory Exclusion:
Usually a statute either expressly includes the principle of natural justice or it is deemed to be present, if nothing is said in the Act. However, the principle of natural justice may be excluded by an express statutory beyond reproach; since in India the provision. This action is not Parliament is not supreme and therefore statutory exclusion is not final.
Emergency:
In exceptional cases of urgency or emergency where immediate action is required to prevent wrongdoing or harm, prompt and preventive action is required. In such cases, the principle of natural justice need not be observed, on grounds of expediency and in the public interest [Maneka Gandhi v. Union of India].
Interim disciplinary action:
Since such actions are generally preventive and are passed in urgent matters, the rules of natural justice can be bypassed [Abhay Kumar v. K. Srinivasan].
Academic evaluation:
This is true only for non-disciplinary matters, for example, if a student is judged academically and found wanting, he can be removed by an institution, since they have academic standards to maintain.
Impracticability:
Where the case relates to a large number of people, it is not practicable ant to give all of them the opportunity of a hearing. In such a situation, the court does not insist on the observance of the rules of natural justice [P. Radhakrishna v. Osmania University].
Question 16: Comment on the Liability of the State or Central Government in Contract or otherwise as a result of a tort.
Answer:
The liability of the government can arise either from a contract or a tort. The Constitution of India permits the central and the state governments to enter into contracts. Such contracts require the following conditions to be fulfilled:
- The contract with the Government is compulsorily to be made in the name of the President or the Governor, according to whether it is with the Central or a State Government.
- It should be in writing and properly executed.
- A person duly authorized by the President or the Governor of the State should execute the contract, and it will be assumed as if the government has directly done so.
Under Article 299 (2) of the Constitution, neither the President nor the Governor shall be personally liable in respect of such contracts made or executed for the purposes of the Government of India.
The Supreme Court has made it clear that the provisions of Article 299 (1) are mandatory and therefore any contract in contravention is void and hence cannot be ratified.
Effect of a valid contract with Government
A valid contract with the government under the Indian Contract Act provides the remedy for its breach too a suit for damages. With the case of Gujarat State Financial Corporation v. Lotus Hotels, the Supreme Court took a new stand that the writ of mandamus can be issued against the Government or its instrumentality also, for the enforcement of contractual obligations. [Also, Shrilekha Vidyarathi v. State of U.P.J.
Quasi-Contractual Liability
According to Section 70 of the Indian Contracts Act, 1872, where a person lawfully does anything for another person or delivers anything of value to him, and such other person enjoys the benefit thereof, the latter is bound to compensate the former in respect of or to restore, the thing so done or delivered.
This includes even the Government, which will be liable to pay compensation for the work actually done or services rendered to the State. This is a liability that arises on equitable grounds even though there exists no express agreement or contract.
Suit against State in Torts
A tort is a civil wrong that arises out of a breach of a civil duty or of a non-contractual obligation, the only remedy for which is damages. When one is responsible for the act of another, it is called vicarious liability.
For example, when the servant of a person harms another by his act, the servant as well as his master are both held accountable for the act done by the servant. Similarly, sometimes the state is held vicariously liable for the torts committed by its servants in the exercise of their duty.
The State would of course not be liable if the acts done were justified by a necessity for protection of life or property. Acts such as judicial or quasi-judicial decisions done in good faith would also be exempt.
“Article 300(1) of the Constitution provides that –
The Government of India may sue or be sued by anyone in the name of the Union of India and, the Government of a State may sue or be sued by the name of the State.
Also, the Centre and the States may be sued in respect of their respective affairs only, meaning that for the affairs of the State the Centre may not be sued and vice versa.
In the case of State of Rajasthan Vs. Vidyawati, a judgement was given on the liability of the State in cases of tort. In this case, the driver of a Government jeep hurt a person walking on the footpath by the side of a public road. At the time, the jeep was being used by the Collector of Udaipur.
On the death pf the injured, the legal representatives of the deceased sued the State of Rajasthan and the driver for compensation/damages, claiming against the tort committed by the driver.
The court discovered that the driver was rash and negligent while driving and the accident was caused due to his negligence. The liability against the State was decreed by the trial court, and also by the High Court.
Moreover, on appeal against the High Court judgment, the appeal was dismissed by the Supreme Court.
In another case of N. Nagendra Rao Vs. State of AP, the court laid emphasis on the concept of a ‘Welfare State’, saying, “In (a) Welfare State, functions of the State are not only defence of the country or administration of justice or maintaining law and order, but it extends to regulating and controlling the activities of people in almost every sphere, educational, commercial, social, economic, political and even marital.
The demarcating line between sovereign and non-sovereign powers, for which no rational basis survives, has largely disappeared. Therefore, barring functions such as administration of justice, maintenance of law and order and repression of crime etc. which are among the primary and inalienable functions of a constitutional Government, the State cannot claim any immunity.”
It clearly implies that The Court linked together the State and the officers: ahot of “The determination of vicarious liability of the State being linked with (the) negligence of its officers, if they can be sued personally for which there is no dearth of authority and the law of misfeasance in discharge of public duty having marched ahead, there is no rationale for the proposition that even if the officer is liable, the State cannot be sued.”
Question 17: Write a note on damages to be paid by State for the actions of a public servant.
Answer:
Damages to be paid by State for the actions of a public servant
In case of negligence by a public servant in exercise of his duties, the State shall be made vicariously liable for the wrongful acts of its servants, the State being the employer here.
In the case of Lucknow Development Authority v. M.K. Gupta, 1994, the Supreme Court observed that “where a public servant by malafide, oppressive and capricious acts in discharging official duty causes injustice, harassment and agony to common man and renders the State or its instrumentality liable to pay damages to the person aggrieved from public fund, the State or its instrumentality is duly bound to recover the amount of compensation so paid from the public servant concerned.”
Liability of the Public Servant
The liability of the State is different from the liability of its officers. As far as the liability of individual officers is concerned, if they act in an ultra vires manner or illegally, they are personally liable for their actions.
The ordinary law of contract or torts or criminal law governs that liability, as it would govern a private individual. An officer acting in the discharge of his duty without bias or malafides could not be held personally liable for the loss caused to another person, as he was acting in the course of his duty or employment. This would be true if such acts are not ultra vires his powers.
Liability of Public Corporation
The term ‘Statutory Corporation’ (or Public Corporation) means organisations that are incorporated under special Acts of the Parliament/State Legislative Assemblies. All rules regarding its constitution, structure and conduct are given in the statute that brings it to being.
It may be noted that more than one corporation can also be established under the same Act. State Electricity Boards and State Financial Corporation are examples of this. More examples would be the Life Insurance Corporation, Food Corporation of India (FCI), Oil and Natural Gas Corporation (ONGC), Air India, State Bank of India, Reserve Bank of India, Employees State Insurance Corporation, Industrial Finance Corporation of India (IFCI), etc.
Question 18: What is a public corporation?
Answer:
Public corporation
The term ‘Statutory / Public Corporation’ refers to organizations that are incorporated under special Acts of Parliament or the State Legislative Assemblies. The statute bringing it into existence also specifies its management pattern, its powers, functions, the field of activity, its inner rules and regulations, and its status regarding government departments, etc.
An Act is also at liberty to establish more than one corporation. For example, State Electricity Boards and State Financial Corporations, Public Corporation Life Insurance Corporation, Food Corporation of India (FCI), Oil and Natural Gas Corporation (ONGC), Air India, State Bank of India, Reserve Bank of India, Employees State Insurance Corporation.
Statutory Corporations have the following characteristics:
- Formed under a special Act of Parliament or State Assembly
- Autonomous governance is Answerable to the Parliament or State Assembly, depending on which statute formed it – Central or State level.
- Separate legal existence.
- Professionally managed by a Board nominated by the government.
- Financially independent although access to government loans is allowed in times of need.
- Recruitment as per by its own Board, according to the conditions specified in the Statute that formed it.
Question 19: What are the benefits of a Public Corporation?
Answer:
The chief benefits of a Public Corporation are as follows –
- Independent of government regulations and controi
- High degree of operating and financial flexibility
- Separate entity
- Autonomy and independence in decision making
- Protection of public interest
- Minimum bureaucracy
- Economies of scale
- More employee-centric
- Faster decision making
- Ease of raising funds
- Better prices for public
Question 20: Explain in brief ‘Audi Alterum Partem Rule’ under the Administrative law.
Answer:
Rule of fair hearing (audi alterem partem):
It literally means ‘to give a hearing to the other side’. According to this rule, both sides to a case should be heard before passing the order. It also requires that both parties should be given sufficient opportunity to present their respective cases.
This rule involves the following:
Right to notice:
A party to a case can respond only when he has notice that a case has been filed against him. Hence, each party has a right to receive notice of all actions taken by the other party. Hence, the right to receive notice is inherent. Notice is the first step in the initiation of a case.
Right to present case and evidence:
Both parties have to be given full opportunity to present their side of the case. This includes presentation of evidence too. This right includes also both oral and written representations.
Right to rebut adverse evidence:
This is the opportunity given to a party to counter the evidence produced against him.
This can be done in two ways:
Cross-examination:
Examination of a witness presented by a party by the counter party is known as cross-examination. Its main purpose is to detect deception in the statement of the witness.
Legal Representation:
The right to legal representation is essential in certain cases; if this right is not ensured, then a violation of natural justice is presumed.
This is especially true in cases where the case involves a question of law or a subject matter which is complicated and includes some legal technicality or where the person is illiterate or expert evidence is on record or the prosecution is conducted by legally trained persons, the denial of legal representation to the other party will amount to violation of natural justice because in such conditions the party may not be able to present his side of the case effectively.
Question 21: Explain in brief doctrine of ‘Nemo Judex in Causa Sua’.
Answer:
Doctrine of ‘Nemo Judex in Causa Sua’
Nemo Judex in Cause Sua is Rule against bias, According to this rule no person should be made a judge in his own cause. Bias means an operative prejudice whether conscious or unconscious in relation to a party or issue.
It is a presumption that a person cannot take an objective decision in a case in which he has an interest. The rule against bias has two main aspects-one, that the judge must not have any direct personal stake in the matter at hand and two. there must not be any real likelihood of bias.
Bias can be of the following three types:
Pecuniary bias:
The judicial approach is unanimous on the point that any financial interest of the adjudicatory authority in the matter, howsoever small, would vitiate the adjudication. Thus a pecuniary interest, howsoever insufficient, will disqualify a person from acting as a Judge.
Personal bias:
There are number of situations which may create a personal bias in the Judge’s mind against one party in dispute before him. He may be friend of the party, or related to him through family, professional or business ties.
The judge might also be hostile to one of the parties to a case. All these situations create bias either in favour of or against the party and will operate as a disqualification for a person to act as a Judge.
Subject matter bias:
A judge may have a bias in the subject matter, which means that he himself is a party, or has some direct connection with the litigation. To disqualify on the ground of bias there must be intimate and direct connection between adjudicator and the issues in dispute. To vitiate the decision on the ground of bias as for the subject matter there must be real likelihood of bias.
Question 22: Enumerate in short the exceptional circumstances of the application of natural justice under Administrative Law.
Answer:
The exceptional circumstances of the application of natural justice under Administrative Law
Though the normal rule is that a person who is affected by administrative action is entitled to claim natural justice, that requirement may be excluded under certain exceptional circumstances as mentioned below:
Statutory Exclusion:
The principle of natural justice may be excluded by the statutory provision. Where the statute expressly provides for the observance of the principles of natural justice, the provision is treated as mandatory and the authority is bound by it.
Where the statute is silent as to the observance of the principle of natural justice, such silence is taken to imply the observance thereto.
Emergency:
In exceptional cases of urgency or emergency where prompt and preventive action is required the principles of natural justice need not be observed. However, the determination of the situation requiring the exclusion of the rules of natural justice by the administrative authorities is not final and the court may review such determination.
Interim disciplinary action: The rules of natural justice are not attracted in the case of interim disciplinary action.
Academic evaluation: Where a student is removed from an educational institution on the grounds of unsatisfactory academic performance, the requirement of pre-decisional hearing is excluded.
Impracticability: Where the authority deals with a large number of person it is not practicable to give all of them opportunity of being heard and therefore in such condition the court does not insist on the observance of the rules of natural justice.
Question 23: Judicial review is the authority of Courts to declare void the acts of the legislature and executive, if they are found in violation of provisions of the Constitution. Comment.
Answer:
Judicial review is the authority of Courts to declare void the acts of the legislature and executive, if they are found in violation of provisions of the Constitution.
The biggest check over administrative action is the power of judicial review. Judicial review is the authority of Courts to declare void the acts of the legislature and executive, if they are found in violation of provisions of the Constitution.
Judicial Review is the power of the highest Court of a jurisdiction to invalidate on Constitutional grounds, the acts of other Government agency within that jurisdiction.
The power of judicial review controls not only the legislative but also the executive or administrative act. The Court scrutinizes the executive act for determining the issue as to whether it is within the scope of authority or power conferred on the authority exercising the power.
Where the act of executive or administration is found ultra-virus the Constitution or the relevant Act, it is declared as such and, therefore, void. The Courts attitude appears to be stiffer in respect of discretionary powers of the executive or administrative authorities.
The Court is not against the vesting of discretionary power in the executive, but it expects that there would be proper guidelines for the exercise of power. The Court interferes when the uncontrolled and unguided discretion is vested in the executive or administrative authorities or the repository of the power abuses its discretion.
Question 24: Under what circumstances the decision exercised by administrative authorities are treated as abuse of discretion? Explain any four.
Answer:
The decision exercised by administrative authorities are treated as abuse of discretion in the following circumstances:
Mala fides: If the discretionary power is exercised by the authority with bad faith or dishonest intention, the action is quashed by the court. Malafide exercise of discretionary power is always bad and taken as abuse of discretion.
Irrelevant considerations: If a statute confers power for one purpose, its use for a different purpose is not regarded as a valid exercise of power and is likely to be quashed by the courts. If the administrative authority takes into account factors, circumstances or events wholly irrelevant or extraneous to the purpose mentioned in the statute, then the administrative action is vitiated.
Leaving out relevant considerations: The administrative authority exercising the discretionary power is required to take into account all the relevant facts. If it leaves out relevant consideration, its action will be invalid.
Arbitrary orders: The order made should be based on facts and cogent reasoning and not on the whims and fancies of the adjudicatory authority.
Improper purpose: The discretionary power is required to be used for the purpose for which it has been given. If it is given for one purpose and used for another purpose it will amount to abuse of power.
Colourable exercise of power: Where the discretionary power is exercised by the authority on which it has been conferred ostensibly for the purpose for which it has been given but in reality for some other purpose, it is taken as colourable exercise of the discretionary power and it is declared invalid.
Non-compliance with procedural requirements and principles of natural justice: If the procedural requirement laid down in the statute is mandatory and it is not complied, the exercise of power will be bad. Whether the procedural requirement is mandatory or directory is decided by the court. Principles of natural justice are also required to be observed.
Exceeding jurisdiction: The authority is required to exercise the power within the limits or the statute. Consequently, if the authority exceeds this limit, its action will be held to be ultra vires and, therefore, void.
Question 25: What are the principal sources of Administrative Law in India? Explain in brief.
Answer:
There are four principal sources of administrative law in India:
Constitution of India:
It is the primary source of administrative law. It gives powers to various authorities; at the same time it creates various tribunals and authorities to exercise this power.
Acts/Statutes:
These Acts made under the Union and State Lists help in several areas of governance and administration.
Ordinances, Administrative directions, notifications and circulars:
Ordinances are orders issued when the legislature is not in session and therefore cannot make laws via the normal route. If then some urgent situation arises that requires to be addressed by some law, then ordinances are made as temporary law, which are placed before the Parliament when next it sits in session.
Administrative directions, notifications and circulars are issued by the executive to help in the smooth running of the processes of the State under various Acts.
Judicial decisions:
These decisions help in smooth running of the State and act as a check against abuse of power by any entity.
Question 26: Discuss the main feature of Statutory Corporation under Administrative Law.
Answer:
The main features of Statutory Corporations are as follows:
- Freedom from government regulations, as it has its own set of governing rules, which are given in the statute that forms it.
- High degree of operating and financial flexibility.
- Balance between the autonomy and flexibility as enjoyed by private enterprises and responsibility to the public as represented by elected members and legislators, representing various sections.
- For the validity of the corporation contract, the requirements of a valid contract laid down in Article 299 are not required to be complied with.
There are, however, several drawbacks to this structure:
- Difficulty of balancing autonomy of the corporation with public accountability.
- Since it is not a department or organ of the Government, its employees are not regarded as Government servants and therefore they are not entitled to the protection of Article 311 of the Constitution.
- However, a public corporation is included within the meaning of ‘State’ under Article 12 and therefore the Fundamental Rights can be enforced against it.
- Moreover, since Public corporations are included within the meaning of ‘other authorities’ and therefore it is subject to the writ jurisdiction of the Supreme Court under Article 32 and of the High Court under Article 226 of the Constitution.
- As per the requirements of the principle of vicarious liability, a corporation is liable to pay damages for wrongs done by its officers or servants. It is liable even for torts requiring a mental element as an ingredient, e.g. malicious prosecution.
In India, local authorities like Municipalities and District Boards have been held responsible for the tort committed by their servants or officers.
Question 27: Administrative law is the by-product of over increasing functions of the Governments. Now, States have no longer policies limited to maintaining internal order and external threats. Examine.
Answer:
Administrative law is the by-product of over increasing functions of the Governments. Now, States have no longer policies limited to maintaining internal order and external threats.
“Administrative law is the by-product of ever increasing functions of the Governments.” Since the modern state is essentially a welfare state, administration in a State requires a collection of complex tasks related to various fields like health, education, pollution, inequality etc.
As the complexity of these tasks grows, so does the administrative structure around them. This causes a growth in administrative law. It includes, within its fold, the following as well, in addition to the essential maintenance of internal order and mitigation of external threats:
Improving the social and economic condition of its citizens. Development activities in the fields of health, education, pollution, inequality etc. New and evolving functions as the role of State also expands in relation to th current demands on administration, as the collective consciousness of the people undergoes positive changes.