Administrative Law Essentials

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1. Introduction to Administrative Law Definition of Administrative Law No single satisfactory definition due to continuous expansion of government functions. Dr. F. J. Port: "Administrative Law is made up of all these legal rules-either formally expressed by statutes or implied in the prerogative-which have as their ultimate object the fulfilment of public law." Sir Ivor Jennings: "Administrative Law is the law relating to the administrative authorities." Limitations: Too wide; ignores distinction between Constitutional Law and Administrative Law. Dicey's Definition: Relates to the portion of a nation's legal system determining legal status and liabilities of State officials. Defines rights and liabilities of private individuals in dealings with public officials. Specifies the procedure for enforcing those rights and liabilities. Kenneth Culp Davis: "The law concerning the powers and procedures of administrative agencies, including especially the law governing judicial review of administrative action." Emphasizes procedure; excludes judiciary and legislature from administrative agency definition. I. P. Massay: "That branch of public law which deals with the organisation and powers of administrative and quasi-administrative agencies and prescribes principles and rules by which an official action is reached and reviewed in relation to individual liberty and freedom." Basic Foundations of Administrative Law To check abuse or detournment of administrative power. To ensure impartial determination of citizen disputes by officials. To protect citizens from unauthorized encroachment on their rights and interests. To make those who exercise public power accountable. Nature and Scope Administrative law is a branch of public law. Deals with decision-making of administrative units (tribunals, boards, commissions). Focuses on regulation in areas like police law, international trade, environment, taxation. Expanded significantly in the 20th century due to growth of government agencies. Reasons for Growth Radical change in the philosophy of role of State: Shift from 'law and order' to 'welfare state' functions. Urbanization: Increased need for laws and administrative action to manage urban growth and infrastructure. To meet Emergency Situations: Legislative process is slow; administrative authorities can make rules quickly. Inadequacy of Judicial System: Courts are slow, costly, and formalistic; tribunals offer specialized, speedy resolution. Inadequacy of Legislative Process: Legislature lacks time and technique for detailed rules; delegates powers. Scope for Experimentation: Administrative rules are flexible, allowing for quick changes if defective. Avoidance of Technicalities: Administrative tribunals are not bound by strict rules of evidence and procedure, allowing for a practical view. Preventive Mechanism: Administrative authorities can take preventive measures (licensing, rate fixing) without waiting for disputes. Effective Enforcement of Preventive Measures: Powers like suspension, revocation of licenses, destruction of contaminated articles. 2. Constitutional Law vs. Administrative Law Keith: "Logically impossible to distinguish administrative from constitutional law." Holland: Constitutional law describes government organs at rest; administrative law describes them in motion. I. P. Massay: Administrative law is a separate legal branch, but overlaps with constitutional law. Differences Constitutional Law: Supreme and highest law; Administrative Law: Subordinate. Constitutional Law: Genus; Administrative Law: Species. Constitutional Law: Deals with various organs of state; Administrative Law: Deals with organs in motion (functions). Constitutional Law: Deals with structure of the state; Administrative Law: Deals with functions. Constitutional Law: Gives general principles for all branches of law; Administrative Law: Deals with powers/functions of administrative authorities. Constitutional Law: Deals with international relations; Administrative Law: Focuses exclusively on administrative powers and functions. Constitutional Law: Deals with general principles of state; Administrative Law: Deals with powers/functions of administrative authorities, public departments, local authorities. Constitutional Law: Demarcates constitutional status of Ministers/public servants; Administrative Law: Concerned with organization/working of government departments. Constitutional Law: Imposes negative duties (e.g., against fundamental rights violation) and positive duties (e.g., social welfare); administrators must follow Constitutional Law first. Constitutional Law: Complete control over administrative law; Administrative Law: Subordinate to Constitutional Law. 3. Droit Administratif in France Body of rules determining organization and duties of public administration, regulating state-citizen relations. Product of separation of powers doctrine, separating courts and administrative bodies. Historical Development: Conseil du Roi (King's Council) advised and had judicial functions. Revolution of 1789 curtailed executive power, abolished Conseil du Roi . 1799: Conseil d'Etat established to resolve administration difficulties, later exercising judicial powers. 1872: Conseil d'Etat gained formal power to give judgments; jurisdiction over administrative liability finalized in 1873. Rules included: Rules dealing with administrative authorities and officials (appointment, dismissal, status, salary, duties). Rules dealing with the operation of public services to meet citizens' needs. Rules dealing with administrative adjudication (disputes decided by administrative courts, Conseil d'Etat is highest). Conflict Resolution: Tribunal des Conflits decides jurisdiction conflicts between ordinary and administrative courts. 4. Montesquieu's Doctrine of Separation of Powers State functions divided among legislature, executive, and judiciary. Legislature: Law-making. Judiciary: Interprets laws. Executive: General administration. Three Rules of the Doctrine One organ of the Government should not interfere with the working of another. One organ should not exercise functions assigned to any other organ. The same person should not form part of more than one organ at the same time. Application in India Indian Constitution does not explicitly mention the doctrine but follows it where possible. Deviations: Council of Ministers are Members of Parliament (overlap of executive and legislature). Executive is responsible to legislature (acts questioned). Delegated Legislation allows executive to make laws and exercise quasi-judicial functions. 5. Rule of Law Basis of Administrative Law. Derived from French phrase 'la principle de legalite' (government based on principles of law). Expounded by Sir Edward Coke, developed by Prof. A. V. Dicey in 'The law of the Constitution' (1885). Coke: King should be under God and Law (Supremacy of Law). Dicey's Three Principles Supremacy of Law: No man is punishable except for a distinct breach of law. Equality before Law: All persons are equal before the law, irrespective of position. Predominance of Legal Spirit: Rights are secured by judicial decisions, not by political guarantees. Application in England Applied in concrete cases despite no written constitution. Limitations: Statutes allowed administrative power priority, unchallengeable in courts. Sovereign immunity ('King can do no wrong') abolished by Crown Proceedings Act, 1947. Dicey failed to distinguish arbitrary from discretionary power and merits of French legal system. Rule of Law under the Constitution of India Indian Constitution adopts the doctrine; ideals of justice, liberty, equality enshrined in preamble. Part III guarantees Fundamental Rights. Kesavanda Bharati vs. State of Kerala (1973): Supreme Court declared rule of law as part of basic structure. Maneka Gandhi vs. Union of India (1978): Article 14 strikes against arbitrariness. Indira Nehru Gandhi vs. Raj Narain (1975): Article 329-A (immunities for PM election from judicial review) declared invalid as it abridged basic structure. A.D.M. Jabalpur vs. Shivakant Shukla (1976) (Habeas Corpus Case): Supreme Court held no rule of law apart from Article 21. If Article 21 is suspended, there is no rule of law. 6. Delegated Legislation Legislature delegates law-making power to executive or judiciary due to inability to make all laws. Laws made by executive/judiciary under delegated powers are called delegated legislation. Legislature's laws are Superior Legislation; executive/judiciary laws are Subordinate Legislation. Need for Delegated Legislation Pressure on the Legislature: Welfare state model increases state functions, leading to more laws. Legislature lacks time. Lack of Expertise: Executive departments have expertise and field experience in various areas, making them suitable for drafting detailed laws. To Tackle Unforeseen Circumstances: Legislature is slow; executive can make quick rules to address urgent situations. Facility for Experimentation: New fields require frequent law changes, easier for executive. Maintenance of Secrecy: Some laws (e.g., price controls) need to be secret until enforcement to prevent market manipulation. Administrative Nature: Some aspects of law implementation are administrative and better managed by the executive. Constitutional Validity of Delegated Legislation Challenged on two grounds: Against Doctrine of Separation of Powers (executive exercising legislative functions). Legislature being a delegate cannot further delegate ( delegatus non potest delegare ). Courts rejected these grounds due to advantages of delegation. R. vs. Burah (Privy Council): Held an 1869 Act empowering Governor to extend law as constitutional conditional legislation, not delegated legislation. Jatindra Nath vs. Province of Bihar (Federal Court): Followed Burah , held only conditional legislation valid. Provision allowing government to modify an Act was held unconstitutional. Re Delhi Laws Act (Supreme Court): Seven judges concluded: Doctrine of Separation of Powers is not part of Indian Constitution. Parliament is not a delegate, so delegatus non potest delegare does not apply. Parliament can delegate powers but cannot abdicate its essential legislative function. Power of delegation is ancillary to legislation. Essential legislative functions cannot be delegated. Essential Legislative Functions: Laying down policy of law and enacting it into binding rule of conduct. Delegation is valid if: Essential legislative functions are not delegated; proper guidelines are laid down; limits for exercising powers are prescribed. Types of Delegated Legislation Skeleton Legislation: Legislature provides broad law, executive fills details. Power of Inclusion and Exclusion: Executive adds/removes names from lists to which law applies. Generally considered conditional legislation, held valid if sufficient guidelines exist. Power of Modification of Statute: Harishankar Bagla type: Rules valid even if conflicting with other statutes. Power of Inclusion and Exclusion: Modifies operation, not provision. Delhi Laws Act type: Executive extends enactments with restrictions/modifications. Courts interpret broadly but modifications must be within policy. Power of Incorporation by Reference: Executive applies provisions from one statute to another with modifications. Power to Include Removal of Difficulty Clause: Gives executive discretion to modify statutes to remove difficulties. Valid if minor modifications, invalid if changes policy. Power to Impose Tax: Essential legislative function, generally invalid to delegate. Courts apply harmonic interpretation for exceptions: Delegation of power to exempt a commodity from tax: Held constitutional; executive better placed to consider impact. Delegation of power to bring a commodity within tax purview: Held valid for similar reasons. Delegation of power to fix rates of tax: Valid, subject to maximum prescribed by legislature, due to need for flexibility. Delegation to a representative body: Upheld (e.g., municipal corporations) due to representative character. Delegation to a statutory body: Upheld if properly guided and controlled. Control of Delegated Legislation - Judicial Control Done through judicial review applying the doctrine of ultra vires . Substantive ultra vires : Delegated legislation is beyond the scope of the delegatee's power. Procedural ultra vires : Delegatee failed to follow mandatory procedures. Grounds for Substantive Ultra Vires Parent Act is ultra vires the Constitution: If the parent Act or its provisions are unconstitutional (e.g., beyond legislative powers, violates fundamental rights), rules made under it are also invalid. Delegation is ultra vires the Constitution: Parent Act is constitutional, but delegation of essential legislative powers is excessive. Delegated legislation is ultra vires the Constitution: Parent Act and delegation are valid, but the rules themselves violate the Constitution (e.g., Article 19(1)(g)). Delegated legislation is ultra vires the parent Act: Rules made exceed powers given by the parent Act, or their effect is unintended by the parent Act (extended ultra vires ). Rules in excess of delegation. Rules conflict with parent Act. Rules are unreasonable (e.g., Air India vs. Nargesh Mirza ). Rules are mala fide (made in bad faith). Rules encroach upon common law rights. Rules conflict with some other Act. Attempts to Exclude Judicial Review Legislatures often try to exclude judicial review through clauses in statutes or rules. Exclusion by delegated legislation itself: Executive cannot bar or abridge court jurisdiction. Exclusion by parent Act: Legislatures can bar jurisdiction, but with limitations: Cannot bar jurisdiction where it's under the Constitution (e.g., writ jurisdiction of higher judiciary). Must create an alternative forum if court jurisdiction is barred. Derivative Immunity: Delegated legislation inherits immunity from parent statute. "As if enacted" clause: Treats delegated legislation as if enacted by Parliament, making it immune from judicial review ( Herschell Doctrine , overruled by Minister of Health vs. R ex. p. Yaffe ). In India, this clause does not attach additional sanctity or exclude judicial review. Protection under art. 31-B: Placing parent statute in IX Schedule does not extend protection to delegated legislation unless the delegated legislation itself is in IX Schedule. "Conclusive evidence" clause: States publication is conclusive evidence of validly made rules. Cannot protect from substantive ultra vires , and only protects from minor procedural ultra vires . "Ganga" clause: Exonerates rules from infirmity in making, frees them from defects. Upheld if it refers to procedural irregularity, not illegality, and doesn't lead to injustice. Control of Delegated Legislation - Legislative Control Exercised by Parliament, which is the principal delegating legislative powers. Direct Control Exercised directly by the legislature. General Control: Through debate on Act containing delegation of rule-making powers. Through questions and notices. Through resolution and notices in the House. Through vote on grant. Through a private member's bill seeking modifications. Special Control: Used specifically for delegated legislation. Laying with no further direction: Rules come into effect upon laying before Parliament; for information. Laying subject to negative resolution: Rules take effect but cease if negative resolution passed. Laying subject to affirmative resolution: Rules have no effect unless approved by Parliament. Laying in draft form subject to negative resolution: Rules come into force after 40 days if no negative resolution. Laying in draft form subject to affirmative resolution: Rules come into effect only after approval. Indirect Control Exercised through Parliamentary Committees (e.g., Committee on Subordinate Legislation). Functions of the Committee: Check if rules align with the general object of the Act. Identify matters that should be in the Act, not rules. Check for imposition of tax. Check if jurisdiction of Court is barred. Check for retrospective effect. Check for expenditure from Consolidated Fund. Check for unjustified delay in publication. Check if rules require further elucidation. 7. Procedural Control Drafting: Rules should be drafted by specialized draftsmen. Pre-publication ( Ante natal publication ): Publishing draft rules for public objections and suggestions. Procedure: Publish in draft form in Official Gazette, invite objections by a specified date, consider suggestions. Sufficient time and clear designation of officer to receive objections are required. Consultation with affected interest: Mandatory for some statutes (e.g., environment); involves two-way communication. Consultation with named bodies, administrative boards, statutory boards, interested persons. Post publication ( Post natal publication ): Ignorance of law is not excused, so laws must be properly published. Re Panama Case: Highlighted need for proper publication of laws. In India, publication is sine qua non for a law's operation. Mode of publication: Parent Act may prescribe; if silent, Official Gazette is sufficient. Mandatory publication depends on: language of statute ('shall'), affected interests (e.g., semi-literate persons requiring newspaper publication), and consequences of breach (e.g., criminal liability). Other Aspects of Delegated Legislation Effect of Rules Being Ultra Vires : Invalid and void; cannot operate as estoppel or be validated by ratification. Courts may treat invalid rules as valid directions if the authority has power to issue directions and it doesn't cause public hardship. Retrospective Operation of Delegated Legislation: Legislatures are competent to make retrospective laws (except criminal laws). Art. 20 prohibits retrospective criminal laws in penal nature. Executive cannot make retrospective laws by default, unless parent statute permits and there's a reason for it. Retrospective Rules under art. 309 of the Constitution: Service Rules made by Government can be retrospective as they substitute legislative laws, but cannot violate arts. 14, 16, or 31. Exclusion of Courts' Jurisdiction: Often attempted by statutes, but courts typically uphold judicial review, especially for constitutional matters. Financial Levy: Power to impose tax is an essential legislative function and cannot be delegated. Explanatory Notes: Authorities may append notes to rules; nature (legislative or executive) depends on circumstances. Can have legal effect similar to rules or be administrative. Sub-delegation of Legislative Functions: Generally ultra vires unless specifically provided for in the statute ( delegatus non potest delegare maxim applies). Waiver of Rules: Void if no express statutory power to relax rules, as it can lead to arbitrariness and discrimination. 8. Quasi Legislation General orders or directions issued by the executive, resembling laws but not actual laws. Delegated Legislation and Quasi Legislation - Differences Rules: Made where legislature delegates powers via statute; Directions: Issued by executive in administrative capacity (e.g., under Art. 73/162). Rules: Act of legislature (agent); Directions: Act of executive in its own capacity. Rules: Laws; Directions: Not laws, but quasi law. Rules: Binding on government and individuals; Directions: Not so binding. Rules: Enforceable in court; Directions: Cannot be enforced in court. Factors for Distinguishing Directions from Rules Nomenclature: While 'Rules' often denote delegated legislation, 'Orders', 'Notifications', 'Circulars', 'Regulations' can be directions. Name alone is unreliable. Source of Authority: Delegated legislation mentions the rule-making clause. Mentioning authority is not mandatory for validity. Procedural Requirements: If mandatory procedure for rule-making is followed, instrument is presumed delegated legislation. In cases of ambiguity, observe: Does the instrument impose obligations on individuals? Is it merely informational/procedural? Does it impose obligations on the administration? Does it confer rights/privileges on individuals? Delegated Legislation Treated as Quasi Legislation Rules found ultra vires may be treated as directions if within the rule-making authority's power to issue directions. Enforceability of Quasi Legislation General Rule: Not enforceable in courts; remedy is administrative. Exceptions: Breach of direction amounts to breach of statute: If a direction implements a statutory provision, its breach also breaches the statute, making it enforceable. Breach of direction leads to breach of contract: If quasi legislation forms part of a contract, its breach can be sued for breach of contract. Doctrine of estoppel applicable: If government schemes (quasi legislation) promise benefits, and individuals act on them, government is estopped from denying enforceability. In service matters, directions issued in lieu of Rules: If government issues directions in service matters instead of rules, they have the same effect as rules and are enforceable. Consistent and uniform following of direction is deviated from: Gives rise to legitimate expectation, which courts enforce. Following/not following direction amounts to discrimination: Selective application violates Art. 14, making it invalid. Directions are inconsistent with Statute or Rules: Directions cannot change law; if they do, they are invalid. Directions coming in the way of statutory powers: Invalid if they obstruct exercise of statutory powers. Directions supplementing statutes or Rules: If they fill gaps without conflict and are issued by an authority with rule-making power, they are treated as part of the rules. Directions issued for interpreting a statute or Rules: Invalid if they undermine statutory provisions. Directions are illogical, irrational, unfair, or unjust: Violates Art. 14. Directions are vague: Leads to discrimination, violates Art. 14. Directions affect individual rights: Invalid if they take away or abridge rights, which only legislature can do. Directions in pursuance of policy matters: Enforceable. Directions issued in respect of exercise of discretionary powers: Invalid if they interfere with individual case discretion; valid if general guidelines for uniformity. Directions issued in respect of quasi-judicial functions: Invalid if they interfere with discretion of quasi-judicial bodies. 9. Natural Justice Fundamental rules governing adjudicatory functions. Applicable to judicial and quasi-judicial functions. Partly applicable to administrative discretionary functions (rule against bias). Not applicable to legislative, quasi-legislative, or ministerial functions. Implied in law if not explicitly provided; part of basic structure of Constitution. Two Rules of Natural Justice Rule Against Bias ( Nemo judex in causa sua ): No one can be a judge in their own case. Rule of Fair Hearing ( Audi alteram partem ): Hear the other side. Rule Against Bias A person interested in a case is prejudiced. Types of Bias: Personal Bias: Deciding authority is a party, or related/connected to a party/witness. Apprehension of prejudice. Pecuniary Bias: Deciding authority stands to gain or lose financially from the decision. Even a small gain/loss creates apprehension. Bias as to Subject-matter: Deciding authority has strong notions about the subject-matter. Mere involvement is not enough; real likelihood of bias must be shown. Departmental Bias: Deciding authority belongs to the same department as one of the parties. Element of departmental bias can vitiate administrative action, but courts accept it if two separate officers handle initiation and decision. Pre-conceived Notion Bias: Deciding authority has pre-existing notions from background or prior involvement. This bias is often unavoidable but must not close the mind to fair hearing. Bias on Account of Obstinacy: A judge validating their own judgment after it was reversed by a higher court. Conclusion on Bias: Personal and pecuniary bias are serious and avoidable; others are less serious and unavoidable. Courts prevent decisions in cases of personal/pecuniary bias if there's reasonable apprehension. For other biases, real bias must be proven. Right of Fair Hearing ( Audi Alteram Partem ) Means giving opportunity of being heard. Components of Fair Hearing Right to Notice: Must be adequate and timely (e.g., not 24 hours for demolition). Must disclose material facts. Right to Appearance: Opportunity to appear and present case. Right to Know Adverse Evidence: Material used against a party must be disclosed. Right to Present Case: Opportunity to present case orally or in writing. Right to Present Evidence: Opportunity to present testimonial and documentary evidence. Right That Evidence Shall Not Be Collected At His Back: Evidence collected must be disclosed, and party given opportunity to rebut. Right to Rebut Adverse Evidence: Includes right to cross-examination and legal representation (Right to Counsel). Right to Report of Enquiry: Failure to supply a copy of the enquiry report can violate natural justice, especially if it's the basis of adverse decision. Right to Speaking Order: Decisions should be reasoned, showing application of mind and rationale. Reasons need not be elaborate but sufficient to understand the decision. Exceptions to Natural Justice Emergency: Hearing may be dispensed with in urgent situations. Confidentiality: Where disclosure would harm public interest. Ministerial Functions: No decision-making involved. Impracticability: Where giving a hearing is not feasible. Interim Preventive Actions: Temporary measures. Legislative Functions: Rule-making is legislative in nature. No Infringement of Rights: If no rights are affected. Statutory Exceptions and Necessity: Where statute explicitly excludes or necessity demands. Contractual Matters: Purely contractual disputes. Policy Matters: Decisions based on broad policy. Where Hearing is a Useless Formality: If the outcome is predetermined and hearing would not change it. Right of Third Parties Generally, natural justice available only to parties. In some cases, rights of third persons may be affected, requiring them to be heard. Effect of Violation of Natural Justice Renders decision/order void, liable to be struck down. Authority can rehear the matter with compliance. Failure to comply is not condoned based on actual prejudice. Voidable at the option of the party whose benefit the requirement was made for. 10. Administrative Functions Functions that are neither legislative nor judicial. Generally based on governmental policy or expediency. No legal obligation to adopt judicial approach; decisions are subjective. Not bound by rules of evidence/procedure unless statute imposes. Can take decisions with or without statutory power, if not contravening law. May be delegated and sub-delegated unless prohibited. May use discretion and consider evidence beyond parties' submissions. Not always bound by natural justice principles unless required by statute or fairness. Can be held invalid for unreasonableness. Not quasi-judicial merely because opinion on objective fact is formed. Prerogative writs (certiorari, prohibition) not always available against administrative actions. Classification of Administrative Functions Discretionary Functions Ministerial Functions Judicial Review of Discretionary Functions - Doctrine of Ultra Vires Executive power is co-extensive with legislative power. Applied to check if executive action is within competence or violates fundamental rights. Stages of Discretionary Control At the Stage of Conferment of Powers: Discretion must not be absolute; sufficient guidelines needed. Conferment of Discretion and Art. 14: Unguided discretion can violate Art. 14. Conferment of Discretion and Fundamental Freedoms (Art. 19): Unguided/unrestricted discretion to interfere with Art. 19 freedoms is unreasonable. At the Stage of Exercise of Powers (Abuse of Discretion): Failure to Exercise Discretion: Not using discretion at all. Acting Mechanically: Passing pre-determined orders without considering individual facts. Abdication of Discretion: Superior authority gives up power to subordinate without statutory provision; invalid. Acting Under Dictation: Passing orders under dictation of higher authorities; invalid. Imposing Fetters on Discretion: Authority ties its own hands by making rules that remove freedom to decide individual cases. Exercise at Wrong Time: Discretion exercised prematurely, without applying mind to relevant facts. Powers Coupled with Duty: Permissive language in statutes (e.g., 'may') implies a duty when power is coupled with a public duty. Wrong Exercise of Discretion: Using discretion in a wrong manner or for an improper purpose. Irrelevant Consideration: Using improper grounds for decision. Leaving Out Relevant Consideration: Ignoring relevant grounds. Mixed Consideration: Decision based on both relevant and irrelevant grounds. Valid if relevant grounds suffice. Colourable Exercise: Using power for a purpose other than for which it was given. Use for Collateral Purpose: Using power for an unauthorized purpose. Mala fide Exercise of Power: Using discretion with bad faith or dishonest intention (malice in fact or malice in law). Unreasonable Exercise: Decision is so unreasonable that no reasonable authority would make it ( Wednesbury Unreasonableness ). Lack of Jurisdiction to Exercise: Exercising power without legal authority. Exercise in Excess of Jurisdiction: Exceeding statutory limits of power. Non-compliance of Procedural Requirements: Violating mandatory procedural requirements. Exercise in Violation of Natural Justice: Violating Rule Against Bias or Right to Fair Hearing. 11. Quasi Judicial Functions Authorities decide rights/liabilities, resembling courts but acting in administrative capacity. Has some, but not all, attributes of judicial functions. Characteristics of Quasi-judicial Functions Lis Inter Partes : Involves a dispute between two persons. Provision for Administrative Appeal: Appeals to higher administrative authorities. Powers of Court: Authority invested with court powers is presumed to act quasi-judicially. Adverse Civil Consequences: Decisions affecting rights of a person ( quasi-lis ). Duty to Act Judicially: Real test is whether the authority has a duty to act judicially. Test for Quasi-judicial Function No 'cut and dried' formula. Consider: nature of power, person(s) conferred, legal framework, consequences, manner of exercise. Requirement to act judicially means to act justly and fairly, not arbitrarily. Judicial Functions vs. Quasi Judicial Functions Judicial: Presupposes existing dispute, presentation of case, ascertainment of facts through evidence, legal arguments, decision disposing of matter by applying law to facts. Quasi-judicial: Some trappings of court, but not all; obligation to act judicially. Lis inter partes is essential for judicial, but not necessarily for quasi-judicial. Need for Quasi Judicial Functions In India, established to address: burden on courts (delay), need for specialization, informality, cost-effectiveness, preventive rather than remedial action, policy application, general treatment of cases. Advantages of Quasi-judicial Decision-making Socialisation of law. Informal, inexpensive, and quick remedy. Preventive action, rather than curative. Functional approach. Experience. Problems Related to Quasi-judicial Functions Number and complexity. Varieties of procedures. Unsystematic system of appeals. Invisibility of decisions. Unpredictability of decisions. Anonymity of decisions. Combination of functions. 'No Evidence' rule. Official perspective. Official bias. Plea bargaining. Political interference. Off the record consultation. Reasoned decision. Legal representation. Enquiry Against Quasi-judicial Authorities General rule: Quasi-judicial authorities must be independent; no interference or enquiries. Exceptions for enquiry: Officer acted in a manner reflecting on reputation, recklessness/misconduct, unbecoming conduct, negligence, undue favour to a party, corrupt motives. Administrative Tribunals Alternative procedure to court system, for enforcement of legal rights. Provide cheap, informal, and speedy resolution. Constitutional Validity of Administrative Tribunals Act, 1985 L. Chandra Kumar vs. UoI: Arts. 323-A(2)(d) and 323-B(3(d) (excluding High Court/Supreme Court jurisdiction) were held unconstitutional. Tribunal members are not judges, their orders are not judgments. 12. State Liability Regulated by Arts. 298, 299, and 300 of the Constitution. Contractual Liability Art. 298: Government can enter contracts. Art. 299: Essential formalities for government contracts. Art. 300: State liability same as Dominion of India/Provinces (referencing GOI Acts 1935, 1915, 1858, and East India Company). Mandatory Formalities under Art. 299: Contract must be expressed to be made by President/Governor. Contract must be executed on behalf of President/Governor. Contract must be executed by a person authorized by President/Governor. Ratification: Government cannot ratify agreements not fulfilling Art. 299 requirements. Benefit under Contract Act, Sec. 70: If government obtains benefit from an invalid contract, it must pay for it. Tortuous Liability Early English law: King enjoyed sovereign immunity ('Rex non potest peccare'). 1964: Crown Proceedings Act changed law in England. State liability in India (Art. 300(1)): Same as Dominion of India/Provinces. Pre-Constitutional Decisions Peninsular & Oriental Steam Navigation Co. vs. Secretary of State for India: Held East India Company (and thus State) liable for torts in non-sovereign functions. Distinction between sovereign (immune) and non-sovereign (liable) functions. Post-Constitutional Decisions State of Rajasthan v. Mst. Vidyawati: State held vicariously liable for torts by employees in course of employment, not connected with sovereign powers. State of Bihar vs. Abdul Majid: Government servant can recover salary arrears; sovereign immunity not valid post-Constitution. Kasturi Lal Ralia Ram vs. State of UP: Sovereign immunity applied for torts committed by police in discharge of sovereign functions (e.g., seizing stolen property). Later cases: Courts provided relief against state, narrowing sovereign immunity. Pushpa Thakur vs. UoI: Sovereign immunity has no application for compensation under Motor Vehicles Act. Constitutional Torts Tort involving violation of a constitutional right (e.g., fundamental right). Distinction between sovereign/non-sovereign functions is immaterial. Analysis of Judgment in Nagendra Rao Case Non-existence of distinction: In modern sense, sovereign/non-sovereign distinction largely disappeared. Non-liability for political acts: State immune for acts indicative of external sovereignty (defense, foreign affairs). Immunity ends with political acts: State cannot be above law; statutory power is statutory duty. Demarcating line (primary/inalienable functions): State cannot claim immunity for functions other than administration of justice, law and order, crime repression. Misfeasance doctrine: State liable if officer is liable for misfeasance in public duty. Kasturi Lal's case - inalienable functions: Powers of arrest/search are inalienable, hence sovereign immunity applied. 13. Judicial Review Of administrative action, falls under Public Law review and Private Law review. Public Law Review: Through writ jurisdiction (High Courts, Supreme Court). Private Law Review: Through subordinate judiciary (suits); covers tortious and contractual liabilities (Art. 300). Doctrine of Legitimate Expectation Prevents arbitrary use of power when a sudden change in policy belies expectations. Applies if expectation is founded on law, custom, or established procedure. Can be procedural (right to hearing) or substantive (right to benefit). Doctrine of Public Accountability Public officer abusing office must be held responsible. Power is a public trust; property acquired through misuse of office is held as constructive trustee. Extended to private sector ( D.D.A. V. Skipper Construction Co. ). Members of Parliament/legislative assemblies are public servants under Prevention of Corruption Act. Doctrine of Proportionality Punishment must be proportionate to the wrong committed; excessive punishment is liable to be struck down. Procedural Aspects - Doctrine of Standing Person must have a cause of action (rights violated) to approach court. Locus Standi : Right to sue; requires: Injury: Violation of rights. Causation: Violation caused by defendant's wrongful act. Redressability: Remedy exists in law. Exceptions to Locus Standi : Criminal cases, environmental cases, habeas corpus, Public Interest Litigation (PIL). Class Actions Case instituted by one/few on behalf of all aggrieved. Representative suit (Order I, Rule 8 CPC). Public Interest Litigation (PIL/SAL): Petitioner need not be personally affected; can address public injury. Doctrine of Res Judicata Matter once decided finally cannot be reagitated. Based on public policy to ensure finality of decisions and avoid multiplicity of proceedings. Requirements: Case decided by competent court, decided finally, on merits, same/substantially same issues, same parties litigating under same title. Constructive Res Judicata : Issue that could have been raised but wasn't, is barred. Not applicable to habeas corpus due to high value of personal freedom. Jurisdiction Supreme Court (Arts. 32 & 136): Protector of fundamental rights; can issue directions/writs for enforcement. High Courts (Arts. 226 & 227): Wider jurisdiction (fundamental and other rights). Discretionary power. Grounds for High Court to reject writ petition: Delay/laches, equally efficacious alternative remedy. Grounds of Judicial Review (Diplock's Classification) Illegality: Decision is ultra vires (outside statutory language) or involves errors of law. Irrationality and Unreasonableness: Decision is so unreasonable no reasonable authority would make it ( Wednesbury Unreasonableness ). Procedural Impropriety: Failure to comply with procedural requirements (time limits, consultation, notice). Courts may set aside if harm outweighs inconvenience. Writs 1. Habeas Corpus: 'You must have the body.' For illegal detention; relaxations apply (e.g., not requiring physical production in public interest, flexible locus standi , no res judicata ). 2. Writ of Mandamus: Order to perform/refrain from a public duty. Conditions: Public/common law duty, absolute duty (not discretionary), specific demand and refusal, clear right to enforce duty, right subsists, right belongs to petitioner. Mandamus vs. Injunction: Mandamus is constitutional, not barred by statute, speedier. Injunction is ordinary, allows compensation, oral evidence. 3. Writ of Certiorari and Writ of Prohibition: Both for actions without jurisdiction. Prohibition prevents, Certiorari quashes. Grounds: Lack of Jurisdiction, Excess of Jurisdiction, Abuse of Jurisdiction, Violation of Natural Justice, Error apparent on the face of record, Fraud. Certiorarised Mandamus: Quashes order and directs fresh decision. 4. Writ of Quo Warranto: 'By what authority.' Challenges occupancy of independent public office. Conditions: Public office, substantive in nature, person occupied office, contravention of law. Private Law Review State treated like an individual. Governed by Contract Act, Law of Torts. State has special privileges (longer limitation, privilege to withhold documents) for public protection, not self-protection. Statutory remedies: Injunction, declaration, damages. Injunction Court order to do (mandatory) or not to do (prohibitory) an act. Can be refused if plaintiff's conduct is bad or other efficacious remedy exists. Final remedy or interim relief (temporary injunction). Temporary Injunction: Provisional, maintains status quo . Can be ex parte if applicant shows prima facie case, balance of convenience, irreparable loss. Declaration Court order stating legal position between parties. No coercive force, no contempt for neglect. Courts usually require consequential remedy along with declaration. Used to avoid future litigation, clarify legal position. Damages Compensation for loss due to government/servant act. Appropriate forum is civil court. Courts may award damages in writ petitions for constitutional torts (violation of fundamental rights) if facts are undisputed. 14. Government Privileges Privilege of Notice (Sec. 80 CPC): Two-month notice required for suits against government/public official. Mandatory, but not if officer acts without jurisdiction or if there's no effective alternative remedy. Can be waived. Privilege to Withhold Documents (Secs. 123, 124 Indian Evidence Act): Sec. 123: Unpublished official records. Sec. 124: Confidential official communications. Norms to prevent misuse: Privilege claim by minister's affidavit, stating grounds; court can summon authority if not satisfied; court can inspect documents. Immunity from Statute Operation: Government claims not bound by statute unless expressly/impliedly stated. Earlier view ( Province of Bombay vs. Municipal Corporation ): Government not bound. Later view ( Superintendent and Legal Remembrancer vs. Corporation of Calcutta ): Government is bound unless expressly/impliedly excluded. Immunity from Estoppel: Government generally not estopped from denying existence of facts or changing policy. Not applied against government if it violates statutes or constitutional powers. Promissory Estoppel: Equitable doctrine; government may be bound by promises if parties act on them, but yields if inequitable or against law/public policy. 15. Mal Administration Need for alternative fora for dispute resolution due to formal, expensive, and delayed judicial process. Extra Judicial Remedies People often try political or departmental remedies before courts. Parliamentary Remedies Effective control of Parliament over executive. Aggrieved citizens can write to MPs. Tribunals Alternative procedure to courts for legal rights enforcement. Cheap, informal, speedy. Judicial in nature, find facts, apply law, resolve disputes, independent of executive. Decisions subject to appeal if statute provides. Arbitration Alternative remedy, often optional, but some statutes make it compulsory for certain disputes. Ombudsman, CVC, Lokayukta, and Lokpal Ombudsman: Delegate/agent of Parliament safeguarding citizens against administrative abuse/maladministration. Inquires into complaints, wide powers, access to departmental files. In India, functions with minimal fees, no advocate needed. Central Vigilance Commission (CVC): Apex governmental body (1964) to address corruption. Autonomous, monitors vigilance, advises government organizations. Not an investigating agency; works through CBI/Departmental Chief Vigilance Officers. Limitations: Advisory only, inadequate resources, cannot direct CBI inquiries on its own, cannot register criminal cases, appointments influenced by government. Lokayukta: State-level institution for redressal of citizen grievances against administrative actions (corruption, favoritism, indiscipline). Lokpal: Indian version of Ombudsman. Bills introduced multiple times since 1968. Initially excluded PM, later included. Shifted focus from general grievances to corruption at high political levels.