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TILAK MAHARASHTRA VIDYAPEETH
Mahadeo Nalawade
LLB-5 Semester
ADMINISTRATIVE LAW
Q1 Conscil D’etat?
Ans : Highest court in France for issues and cases involving public administration. Its origin dates back to 1302, though it was extensively reorganized under Napoleon and was given further powers in 1872. It has long had the responsibility of deciding or advising on state issues and legislative measures submitted to it by the sovereign or, later, by the president, the cabinet, or the parliament. It is the court in which French citizens may bring claims against the administration, though usually since 1953 such claims originate in the regional administrative tribunals of first instance, and appeals are taken to the Conseil d’État. Progressively since 1987 certain appeals have been dealt with by seven new administrative appeal courts based in major cities. These courts are controlled by the Conseil d’État. Institutions imitative of the French Conseil d’État have been established in many other countries, such as Belgium, Greece, Italy, Lebanon, Spain, Turkey, and Egypt.
Q2- What do you mean by Ombudsman?
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Ans : An ombudsman is an authority, appointed by the government and even private bodies to investigate complaints against an authority. Essentially, the ombudsman is an intermediate person who tries to resolve the complaints which one party has raised against the other. Their task is to look into the complaint and resolve the matter in a peaceful manner. Generally, it is meant to be used by a service consumer. In other words, the ombudsman is supposed to provide quick, neutral and cost effective justice to an aggrieved complainant. He tries to bring the issue of the consumer/complainant to the service provider’s notice so that it can be resolved. In India, ombudsman exists for sectors like insurance, income tax, banking and other sectors as well. So you can approach the Insurance Ombudsman for your insurance related complaints; the Banking Ombudsman for banking related complaints and the Income Tax Ombudsman for income tax related complaints.
Q3- What do you mean by Quasi Legislative body?
Ans : When an Administrative Agency exercises its rule-making authority, it is said to act in a quasi-legislative manner. Administrative agencies acquire this authority to make rules and regulations that affect legal rights through statutes. This authority is an exception to the general principle that laws affecting rights should be passed only by elected lawmakers. Administrative agency rules are made only with the permission of elected lawmakers, and elected lawmakers may strike down an administrative rule or even eliminate an agency. In this sense quasi-legislative activity occurs at the discretion of elected officials.
Q4- Doctrine of Pleasure
Ans : Doctrine of Pleasure under the Indian Constitution is also based on the same policy considerations as it existed under the common law in England. Though doctrine of pleasure is accepted in India as it has developed in England, it has not been completely accepted in India. This Doctrine of Pleasure is embodied in India in Article 310(1).It reads as follows:
Tenure of office of persons serving the Union or a State : Except as expressly provided by this Constitution, every person who is a member of a defence service or of a civil service of the Union or of an all India service or holds any post connected with defence or any civil post under the Union, holds office during the pleasure of the President, and every person who is a member of a civil service of a State or holds any civil post under a State holds office during the pleasure of the Governor of the State. This is the general rule which operates “except as expressly provided by the Constitution.” This means that the Doctrine is subject to constitutional limitations. Therefore, when there is a specific provision in the Constitution giving to servant tenure different from that provided in Article 310, then that servant would be excluded from the operation of the pleasure doctrine. The following are expressly excluded by the Constitution from the rule of Pleasure. They are:
- Supreme Court Judges Article 124,
- Auditor General (Article 148)
- High Court Judges (Article 217, 218)
- A member of Public Service Commission (Article 317)
- The Chief Election Commissioner.
Q5- What do you mean by Locus Standi?
strikes against those factors which may improperly influence a judge in arriving at a decision in any particular case. The requirement of this principle is that the judge must be impartial and must decide the case objectively on the basis of the evidence on record. In other words, a predisposition to decide for or against one party without regard to the merit of the case is “bias”.
- Personal Bias: Personal bias arises from a certain relationship equation between the deciding authority and the parties which incline him unfavourably or otherwise on the side of one of the parties before him. Such equation may develop out of varied forms of personal or professional hostility or friendship.
- Pecuniary Bias : In judicial approach unanimous and decisive on the point that any financial interest, howsoever small it may be, would vitiate administrative action. The disqualification wil not be avoided by non-participation of the biased member in the proceedings if he was present when the decision was reached.
- Subject Matter Bias: Those cases fall within this category where the deciding officer is directly, or otherwise, involved in the subject-matter of the case. Here again mere involvement would not vitiate the administrative action unless there is a real likelihood of bias.
- Departmental Bias: The problem of departmental bias is something which is ingerent in the administrative process, and if not effectively checked, it may negate the very concept of fairness in administrative proceedings.
- Policy Notion Bias: Bias arising out of preconceived policy notions is a very delicate problem of administrative law. On one hand, no judge as a human being is expected to sit as a blank sheet of paper and on the other, preconceived policy notions may vitiate a fair trail. Recent trend in almost all jurisdictions is that policy bias is not considered as bias which vitiates an administrative action.
- Preconceived Notion Bias: This type of bias is also called as “ unconscious bias” all person exercising adjudicatory powers are humans with human prejudices, no matter some persons are more human than others. This may include “class bias” and “personality bias”. Every person is a product of a class and inherits some characteristics of the class which may also reflect in his decision – making process.
- Bias On Account of Obstinacy : The supreme court has discovered a new category of bias arising from thoroughly unreasonable obstinacy. Obstinacy implies unreasonable and unwavering persistence, and the deciding officer would not take “no” for an answer. This new category of bias was discovered in a situation where a judge of the Calcutta high court upheld his own judgement while sitting in appeal against his own judgement. of course, a direct violation of the rule that no judge can sit in appeal against his own judgement is not possible, therefore, this rule can only be violated indirectly. In this case, in a fresh writ petition, the judge validated his own order in an earlier writ petition which had been overruled by the division bench. What applies to judicial process can be applied to administrative process as well.
Q8- Droit Administratif
Ans : France has developed a system of administrative tribunals distinct from the ordinary courts which have no jurisdiction on the administration. Droit administratif is the name given to the Administrative Law prevailing in France. In this system the judicial power is kept separate from administrative power. A person seeking any redress against the administration has to go to an administrative court and not to an ordinary court. Thus the system of droit administrative in France has resulted in non-interference by the Courts in the working of administrative authorities. A.V. Dicey defines the term Droit administrative, as that portion of the French Law which determines
- the position and liabilities of State officials,
- the rights and liabilities of private individuals in their dealings with officials, and
- the procedure by which these rights and liabilities are enforced.
Administrative Law in France observes William Bennet Munro, may be defined as a system of jurisprudence which, on the one hand, relieves public officials from amenability to the ordinary court and, on the other, sets up a special jurisdiction to hold them accountable.
Droit administrative, as it exists in France, observes Dicey, “is not the sum of the powers possessed or of the functions discharged by the administration; it is rather the sum of the principles which govern the relation between the French citizens, as individual, and the administration as the representative of the State. The most significant aspect of Droit administrative is that the ordinary courts exercise no control over the administration which is supervised instead by administrative tribunals. These are independent bodies. All tribunals are subject to the supervision of Conseil d’Etat which acts as the Court of Appeal from all administrative tribunals. The Conseil d’Etat[ has been characterized as the ‘bulwark of civil liberties’ and also the ‘guardian of administrative morality’. The system has come to be regarded as providing as effective protection to individual rights against the despotism of public administration. The judges of Conseil d’Etat possess a high degree of administrative expertise and so they are better able to control the administration than the ordinary courts where the judges are generalists and lack expertise in the administrative action is peripheral and lacks depth. The most outstanding contribution made by France to legal science has been separate system of administrative jurisdiction and administrative law created by Conseil d’Etat.
Need for Establishment of a similar Institution in India- It is true that the establishment of an institution similar to Conseil d’Etat in France may not be quite suited to the conditions in India. However it is necessary to develop administrative courts n the lines of the French Conseil d’Etat would be necessary because that will serve as counterpoise to the arbitrary action of the administration.
Q9- Sources of Administrative Law
Ans : India, the Administrative Law forms part of the ordinary law of the land. Therefore, in this branch of public law we are concerned with the Constitution, statutes, subordinate legislation and case law. However, administrative law is very closely allied to the study of the government. Ideas about government change and have an influence on law. It is therefore, that administrative law is concerned with the study of documents, orders and decisions which are not true sources of law. The main sources of administrative law in India are as follows:
- The Constitution of India India has a written Constitution which is the supreme law of the land. Being the grundnorm of the legal system of the country, it conditions and overrides all legislative and administrative actions. Besides providing for functional organisation and consequential growth in administrative process, the Constitution has also provided for an elaborate control mechanism.
- Statutes : Statute is the principal source of administrative power. Statute emanates from the Constitution. Under the Constitution, law-making power has been given to Parliament and State Legislatures. Administration is given powers by statutes. All the statutes have to conform to the constitutional patterns. Exercise of administrative powers has to conform to statutory patterns.
- Ordinances : The ordinance-making power relates to the legislative powers of the Chief Executive in Union and States. Article 123of the Constitution of India which deals with the legislative powers of the President empowers the President to promulgate ordinances during the recess of Parliament, and Article 213 confers a similar power on the Governor to promulgate ordinances during the recess of state legislature.
- Delegated Legislation : Law-making is the primary function of the Legislature. Yet, in no country does the legislature monopolise the whole of legislative power. A good deal of legislation is made by the administration under the powers conferred by the Legislature. This type of administrative legislation is called delegated or subordinate legislation. The delegated legislation is subject to Judicial and Parliamentary control. In this way, delegated legislation is an important source of law.
- Case Laws : The basis of Indian Administrative Law is judge-made law. This means that it is subject to all the strengths and frailties of judicial law-making. In the absence of special administrative courts, new norms of administrative law have been evolved. The function of courts is two-fold, regulative and formative. The rules laid for controlling the actions of administration by various devices namely, reasoned decisions, quasi-judicial function, rules of natural justice, for instance, rule of hearing and rule against bias have been developed. The new principles laid down form guidelines for the future course of action.
Central Administrative Tribunal for the Centre and a State Administrative Tribunal for a particular State. Many states in India have established the Tribunals. In some states, the decisions and judgments are binding upon the state Government. In some states such as Andhra Pradesh, the judgments of Tribunals are binding on the State Government unless nullified by the latter within a period of two months. In some states the Tribunals have taken away the jurisdiction of the respective high courts in service matters, while in some other states, they do not abridge or ban the jurisdiction of the High Court concerned.
Q13- Examine critically the Doctrine of Rule of Law and its contemporary significance in the welfare State.
Ans : Rule of Law” comes from a French phrase, ‘la principe de legalite’. It translates to ‘Principle of legality’ which means a government that has its basis on principles of law and not principles of men. This concept was therefore against the powers of arbitration. The Rule of Law is among the major principles of the English Constitution. The doctrine was further adopted in the constitution of USA and India. The administrative law is totally based on the doctrine of the Rule of Law. The doctrine of the Rule of Law is said to have its origin from Sir Edward Coke. He made a statement saying that God and the Law are what must stand above the King. This brought forth a supremacy law against the King. Dicey maintains that the Rule of Law stands to be among the basic principles of the legal system in England. The doctrine of the Rule of Law has been accorded three meanings in Dicey’s book. The three meanings include: Supremacy of Law, Equality before law & The predominance of legal spirit.
- Supremacy of Law: This has always been the basic understanding of the rule of law that propounds that the law rules over all people including the persons administering the law. The lawmakers need to give reasons that can be justified under the law while exercising their powers to make and administer the law.
- Equality before the Law: While the principle of supremacy of law sets in place cheques and balances over the government on making and administering the law, the principle of equality before the law seeks to ensure that the law is administered and enforced in a just manner. It is not enough to have a fair law but the law must be applied in a just manner as well. The law cannot discriminate between people in matters of sex, religion, race etc. This concept of the rule of law has been codified in the Indian Constitution under Article 14 and the Universal Declaration of Human Rights under the Preamble and Article 7.
- Pre-dominance of legal spirit: In including this as a requirement for the rule of law, Dicey’s belief was that it was insufficient to simply include the above two principles in the constitution of the country or in its other laws for the state to be one in which the principles of rule of law are being followed. There must be an enforcing authority and Dicey believed that this authority could be found in the courts. The courts are the enforcers of the rule of law and they must be both impartial and free from all external influences. Thus the freedom of the judicial becomes an important pillar to the rule of law.
In modern parlance Rule of Law has come to be understood as a system which has safeguards against official arbitrariness, prevents anarchy and allows people to plan the legal consequences of their actions. Modernity cannot totally accept Dicey’s concept of the Rule of Law. There is now the modern concept rule of law which is quite broad. Davis’ book, “Administrative Law” breaks the principle of the Rule of Law into seven meanings:
- Law and order
- Fixed rules
- Elimination of discretion
- Due process of law or fairness
- Natural law or observance of principle of natural justice
- Preference for judges and ordinary courts of law executive authorities and administrative tribunals
- Judicial review of administrative actions
Contemporary Significance of Rule of Law in Welfare State:
- It checks abuse of power by authorities.
- It empowers individuals with rights which cannot be easily taken-away.
- It treats everyone equally without discrimination.
- Its supremacy ensures no person can claim to be above law.
- It ensures adherence of principles of natural justice like: giving reasonable opportunity, impartiality of decision, etc.
- It leads to fairness, both substantive and procedural.
Q14- Discuss the kinds of writs under Indian Constitution and the grounds on which they could be issued.
Ans : The supreme court, and High courts have power to issue writs in the nature of habeas corpus , quo warranto , mandamus , certiorari ,prohibition etc., under Arts. 32 and 226 respectively. Power to issue writs is primarily a provision made to make available the Right to Constitutional Remedies to every citizen. The right to constitutional remedies as we know is a guarantor of all other fundamental rights available to the people of India.
Kinds of Writs: There are five kinds of writs –Habeas corpus , Quo warraranto , Mandamus , Certiorari and Prohibition
- Habeas Corpus : The latin term habeas corpus means ‘you must have the body ‘ and a writ for securing the liberty was called habeas corpus ad subjiciendum. By this writ the court directs the person or authority who has detained another person to bring the body of the prisoner before the court so as to enable the court to decide the validity , jurisdiction or justification for such detention. The principal aim of the writ is to ensure swift judicial review of alleged unlawful detention on liberty or freedom of the prisoner or detention.
- Quo Warranto : The term quo warranto means what is your authority. The writ of quo warranto is used to judicially control executive action in the matter of making appointments to public offices under relevant statutory provisions. The writ is also used to protect a citizen from the holder of a public office to which he has no right . The writ calls upon the holder of a public office to show to the court under what authority he is holding the office in question. If he is not entitled to the office , the court may restrain him from acting in the office and may also declare the office to be vacant.
- Mandamus : Mandamusis a command issued by a court to an authority directing it to perform a public duty imposed upon it by law. For example , when a body omits to decide a matter which it is bound to decide , it can be commanded to decide the same. Mandamus can be issued when the Government denies to itself a jurisdiction which it undoubtedly has under the law , or where an authority vested with a power improperly refuses to exercise it. The function of mandamus is to keep the public authorities within the limits of their jurisdiction while exercising public functions .Mandamus can be issued to any kind of authority in respect of any type of function – administrative , legislative , quasi-judicial , judicial Mandamus is used to enforce the performance of public duties by public authorities.
- Certiorari and Prohibition
These writs are designed to prevent the excess of power by public authorities. Formerly these writs were issued only to judicial and quasi-judicial bodies. Certiorari and Prohibition are regarded as general remedies for the judicial control of both quasi judicial and administrative decisions affecting rights.
Conclusion:
These are the five types of writs which were issued by the Supreme court and High court under Arts. 32 and 226 of the constitution. Habeas corpus and Quo warranto being confined to specific situations, Certiorari and Mandamus are the two most commonly sought writs to control the actions of administrative bodies.
- Features leading to transparency:
A large amount of information has to be placed in the public domain by ways of manuals prescribed under the Act. All the Government departments along with a number of bodies which receive substantial funding from the Government have been brought under the RTI.
- Features leading to accountability:
RTI Act provide for setting up of Central Information Commission and State Information Commission. These Commissions act as the Second Appellate Authority and also exercise supervision and monitoring over the functioning of Public Information Officers. Public authorities have to provide information as early as possible as but not later than 30 days (not later than 48 hours in the matters pertaining to life and liberty of an individual). In case of delay, the Central Information Commission or the State Information Commission can impose a penalty. The Commission can also recommend disciplinary proceedings against the officials guilty of the not providing information with malafide intention. In case of denial or not providing proper information an appellate structure has also been provided. First appeal lies with the First Appellate Authority nominated by the Department while the second appeal lies with the Central Information Commission or State Information Commission.
Q17- What is tribunal Des Conflits?
Ans : The Conseil d’État is the final authority in administrative disputes in France. Owing to the immense volume of work falling on it, the former prefectural councils, which served as administrative courts subordinate to the Conseil d’État, were transformed in 1953 into administrative tribunals of first instance, and the professional qualifications and career prospects of their members were improved. The great majority of cases go before these tribunals, and the Conseil d’État is the court of first and last instance only in those exceedingly rare cases when it is specially designated for that purpose. If difficulty or doubt arises as to whether a case falls within the administrative jurisdiction or that of the ordinary courts, the question is resolved by the Tribunal des Conflits. This is a court specially established for the purpose, consisting of five judges from the Cour de Cassation (the highest civil court) and five from the Conseil d’État. The minister of justice, in his capacity as keeper of the seals, may sometimes preside and cast a tie-breaking vote.
Q18- What is the Central Vigilance Commission?
Ans : Central Vigilance Commission (CVC) is an apex Indian governmental body created in 1964 to address governmental corruption. In 2003, the Parliament enacted a law conferring statutory status on the CVC. It has the status of an autonomous body, free of control from any executive authority, charged with monitoring all vigilance activity under the Central Government of India, advising various authorities in central Government organizations in planning, executing, reviewing and reforming their vigilance work. The Commission shall consist of: A Central Vigilance Commissioner – Chairperson; and not more than two Vigilance Commissioners – Members.
Q19- What is Doctrine of Audi Alteram Partem?
Ans : Doctrine of Audi Alteram Partem is the primary notion of the principle of natural justice. The principle also says that no one should be condemned unheard. Both the parties will get an opportunity of fair hearing and justice. This maxim also ensures that fair hearing and justice will be done towards both the parties, both the parties have right to speak. No decision will be taken by court without hearing both the parties. Both the parties have an opportunity to protect themselves. In India, the principle of natural justice can be traced from Article 14 and Article 21 of the Indian Constitution. Article 14 says about the equality before the law and Article 21 talks about the protection of life and personal liberty.
Q20-Quasi-Contractual Liability
Ans : According to section 70 of Indian Contract Act , where a person lawfully does anything for another person or delivers anything to him such other person enjoys the benefit thereof, the latter is bound to make compensation to the former in respect of or to restore, the thing so done or delivered. If the requirements of Section 70 of the Indian Contract act are fulfilled, even the Government will be liable to pay compensation for the work actually done or services rendered by the State. Section 70 is not based on any subsisting contract between the parties but is based on quasi-contract or restitution. Section 70 enables a person who actually supplies goods or renders some services not intending to do gratuitously, to claim compensation from the person who enjoys the benefit of the supply made or services rendered. It is a liability, which arise on equitable grounds even though express agreement or contract may not be proved.
As per Section 65 of the Indian Contract Act, 1872, If the agreement with the Government is void as the requirement of Article 299 (1) have not been complied, the party receiving the advantage under such agreement is bound to restore it or to make compensation for it to the person form whom he has received it. Thus if a contractor enters into agreement with the Government for the construction of go down and received payment therefore and the agreement is found to be void as the requirements of Article 299 (1) have not been complied with, the Government can recover the amount advanced to the contractor under Section 65 of the Indian Contract act. Action 65 provides that when an agreement is discovered to be void or when a contract becomes void, any person who has received any advantage under such agreement or contract is bound to restore it to make compensation for it to the person from whom he received it.
Q21- Doctrine of Separation of powers.
Ans : The separation of powers is based on the principle of trias politica, which means separation between three independent powers in nation i.e. Legislature, Administration and Judiciary. The legislature makes laws, the executive enforces them and the judiciary applies them to the specific cases arising out of the breach of law. he doctrine of separation of powers has not been accorded a Constitution status. Apart from the directive principles laid down in Article 50 of the constitution which sets out separation of judiciary from the executive functions, the constitutional schemes do not embody any dogmatic division of powers.
The theory of separation of powers signifies mainly three formulations of Governmental powers;
- The same person should not form part of more than one of the three organs of the state.
- One organ should not interfere with any other organ of the state.
- One organ should not exercise the functions assigned to any other organ.
Advantages: There are various advantages with the acceptance of this doctrine in the system;
Q23- Explain the abuse of discretion as aground of Judicial Review
Ans : Courts in India have developed a few effective parameters for the proper exercise of discretion, the conspectus of judicial behaviour still remains halting, variegated and residual, and lacks the activism of the American courts. Judicial control mechanism of administrative discretion is exercised at two stages:
- Control at the stage of delegation of discretion .– The court exercises control over delegation of discretionary powers to the administration by adjudicating upon the constitutionality of the law under which such powers are delegated with reference to the fundamental rights enunciated in Part III of the Indian Constitution. Therefore, if the law confers vague and wide discretionary power on any administrative authority, it may be declared ultra vires Article 14, Article 19 and other provisions of the Constitution.
- Control at the stage of the exercise of discretion .– In India, unlike the USA, there is no Administrative Procedure Act providing for judicial review on the exercise of administrative discretion. Therefore, the power of judicial review arises from the constitutional configuration of courts. Courts in India have always held the view that judge-proof discretion is a negation of the rule of law. Therefore, they have developed various formulations to control the exercise of administrative discretion. These formulations may be conveniently grouped into two broad generalizations: 1. That the authority is deemed not to have exercised its discretion at all – “non application of mind”.–Under this categorization, courts exercise judicial control over administrative discretion if the authority has either abdicated its power or has put fetters on its exercise or the jurisdictional facts are either non-existent or have been wrongly determined. 2. That the authority has not exercised its discretion properly– “abuse of discretion”.– This is an all-embracing formulation developed by courts in India to control the exercise of discretion by the administrative authority. When discretionary power is conferred on an administrative authority, it must be exercised according to law. When the mode of exercising a valid power is improper or unreasonable there is an abuse of the power. 1. Mala fides .– Mala fides or bad faith means dishonest intention or corrupt motive. Even though it may be difficult to determine whether or not the authority has exceeded its powers in a particular case because of the broad terms in which the statute in question may have conferred power on it, the administration action may, nevertheless, be declared bad if the motivation behind the action is not honest. 2. Improper purpose.– If a statute confers power for one purpose, its use for a different purpose will not be regarded as a valid exercise of the powers and the same may be quashed. The cases of exercise of discretionary power from improper purposes have increased in modern times because conferment of broad discretionary power has become usual tendency.
Irrelevant considerations.– A discretionary power must be exercised on relevant and not on irrelevant or extraneous considerations. If the authority concerned plays attention to, or takes into account wholly irrelevant or extraneous circumstances, events or matters then the administrative action is ultra vires and will be quashed.
- Mixed considerations.– Sometimes, it so happens that the order is not wholly based on irrelevant or extraneous considerations. It is founded partly on relevant and existent considerations and partly on irrelevant or non-existent considerations. The judicial pronouncements do not depict a uniform approach on this point. In preventive detention cases, the courts have taken a strict view of the matter and has held such an order invalid if based on any irrelevant ground along with relevant grounds, arguing that it is difficult to say to what extent the bad grounds operated on the mind of the administrative authority and whether it would have passed the order only on the basis of the relevant and valid grounds.
- Leaving out relevant considerations .– If in exercising its discretionary power, an administrative authority ignores relevant considerations, its action will be invalid. An authority must take into account the considerations which a statute prescribes expressly or impliedly. In case the statute does not prescribe any considerations but confers power in a general way, the court may still imply some relevant considerations for the exercise of the power and quash an order because
the concerned authority did not take these into account. Unless detailed reasons are given from which it can be inferred that the authority took action after ignoring material considerations it is hard to have the action quashed on this basis.
- Colourable exercise of power .– At times, the courts use the idiom “colourable exercise of power” to denounce an abuse of discretion. Colourable exercise means that under the “colour” or “guise” of power conferred for one purpose, the authority is seeking to achieve something else which it is not authorized to do under the law in question then the action of the authority shall be invalid and illegal. Viewed in this light, “colourable exercise of power” would not appear to be a distinct ground of judicial review of administrative action but would be covered by the grounds already noticed, improper purpose or irrelevant considerations.
Judicial discretion .– At times, the courts have used a vague phrase “judicial discretion” to restrict the exercise of discretionary power by an authority. For instance, it was observed by Supreme Court in Registrar, Trade Marks v. Ashok Chandra Rakhit, with reference to the power of the Registrar to register a trade mark that “the exercise of the power conferred on Registrar always remained a matter of discretion to be exercised, not capaciously or arbitrarily but, according to sound principles laid down for the exercise of all judicial discretion.”
Q24- Writ of Mandamus
Ans : Mandamus is a judicial remedy in the form of an order from a court to any government, subordinate court, corporation, or public authority, to do (or forbear from doing) some specific act which that body is obliged under law to do (or refrain from doing), and which is in the nature of public duty, and in certain cases one of a statutory duty. It cannot be issued to compel an authority to do something against statutory provision. For example, it cannot be used to force a lower court to reject or authorize applications that have been made, but if the court refuses to rule one way or the other then a mandamus can be used to order the court to rule on the applications.
Q25- Public Interest Litigation
Ans : Public interest litigation is the use of the law to advance human rights and equality, or raise issues of broad public concern. It helps advance the cause of minority or disadvantaged groups or individuals. Public interest cases may arise from both public and private law matters. Public law concerns the various rules and regulations that govern the exercise of power by public bodies. Private law concerns those cases in which a public body is not involved, and can be found in areas such as employment law or family law. Public interest litigation is most commonly used to challenge the decisions of public authorities by judicial review. Judicial review is a form of court proceeding in which a judge reviews the lawfulness of a decision or action, or a failure to act, by a public body. Judicial review is concerned with whether the law has been correctly applied, and the right procedures have been followed.
Q26- Principles of Natural Justice
Ans : Natural justice implies fairness, equity and equality. In a welfare state like India, the role and jurisdiction of administrative agencies is increasing at a rapid pace. The concept of Rule of Law would loose its validity if the instrumentalities of the State are not charged with the duty of discharging these functions in a fair and just manner. In India, the principles of natural justice are firmly grounded in Article 14 & 21 of the Constitution. With the introduction of concept of substantive and procedural due process in Article 21, all that fairness which is included in the principles of natural justice can be read into Art. 21. The violation of principles of natural justice results in arbitrariness; therefore, violation of natural justice is a violation of Equality clause of Art. 14. The principle of natural justice encompasses following two rules: – 1. Nemo judex in causa sua – No one
- Bill lays down clear timelines for preliminary enquiry and investigation and trial. Provides for special courts Public servants will not present their view before preliminary enquiry if the case requires ‘element of surprise’ like raids and searches.
- Bill grants powers to Lokpal to sanction prosecution against public servants.
- CBI may appoint a panel of advocates with approval of Lokpal, CBI will not have to depend on govt advocates.
Q28- Doctrine of Promissory Estoppel
Ans : The principle of estoppel in India is a rule of evidence incorporated in Section 115 of The Indian Evidence Act, 1872. The section reads as follows: When one person has, by his declaration, act or omission, intentionally caused or permitted another person to believe such a thing to be true and to act upon such belief, neither he nor his representative shall be allowed, in any suit or proceeding between himself and such person or his representative, to deny the truth of that thing. The doctrine of promissory estoppel is an equitable doctrine. Like all equitable remedies, it is discretionary, in contrast to the common law absolute right like right to damages for breach of contract. The doctrine has been variously called ‘promissory estoppel’, ‘equitable estoppel’, ‘quasi estoppel’ and ‘new estoppel’. It is a principle evolved by equity to avoid injustice and though commonly named ‘promissory estoppel’, it is neither in the realm of contract nor in the realm of estoppel.
Essential characteristics to make promise binding on Government : The following are the essentials to make any promise binding on the Government:
- The State makes the promise within the ambit of law.
- There is an intention to enter into a legal relationship.
- The other party must do an act in furtherance of that promise or is forbidden to do anything.
No estoppel against statute and law : The doctrine of estoppel does not apply to statutes. In other words, a person who makes a statement as to the existence of the provisions of a statute is not estopped, subsequently, from contending that the statutory provision is different from what he has previously stated. A person may not represent the true status of a statute or law, but the other person who relies on such a representation is at liberty to find out the position of law on the matter and as the maxim says, ignorance of law is no excuse. So a person can not take recourse to the defence of estoppel to plead that a false representation has been made regarding the provisions of a statute or law.
Significance of the doctrine of promissory estoppel in India : Today we are living in a world where a promise of Government to any citizen or non citizen matters a lot especially if it is done in a contractual or business transaction. When a person relies on the Government’s promise and invests hard earned money and the Government afterwards does not abide by its promise then it creates a position where the person’s investment is in danger and he becomes helpless and paralyzed. The judiciary in India has played a very significant role in making the State responsible and accountable and made it abide by its promise.
Q29- Administrative Discretion
Ans : In public administration, administrative discretion refers to the flexible exercising of judgment and decision making allowed to public administrators. Regulatory agencies have the power to exercise this type of discretion in their day-to-day activities, and there have been cases where regulatory agencies have abused this power. The problem of administrative discretion is complex. It is true that in any intensive form of government, the government cannot function without the exercise of some discretion by the officials. It is necessary not only for the individualization of the administrative power but also because it is humanly impossible to lay down a rule for every conceivable eventually in the
complex art of modern government. But it is equally true that absolute discretion is a ruthless master. It is more destructive of freedom than any of man’s other inventions. Therefore, there has been a constant conflict between the claims of the administration to an absolute discretion and the claims of subjects to a reasonable exercise of it. Discretionary power by itself is not pure evil but gives much room for misuse. Therefore, remedy lies in tightening the procedure and not in abolishing the power itself. Administrative law can help these agencies get on the path of following regulations, serve the public, and in turn, a reflection of the public’s values and beliefs. For further answer Ref, Q No 23
Q30- Contractual Liability
Ans : Contractual liability of the Union of India and States is recognized by the Constitution itself. Article 298 expressly provides that the executive power of the Union and of each State shall extend to the carrying on of any trade or business and the acquisition, holding and disposal of property and the making of contracts for any purpose. Article 299(1) prescribes the mode or manner of execution of such contracts. It reads: “All contracts made in the exercise of the executive power of the Union or of a State shall be expressed to be made by the President, or by the Governor of the State, as the case may be, and all such contracts and all assurances of property made in the exercise of that power shall be executed on behalf of the President or the Governor by such persons and in such manner as he may direct or authorize.”
Requirements of the Contract: Reading the aforesaid provision, it becomes clear that Article 299 lays down the following conditions and requirements which must be fulfilled in contracts made by or with the Union or a State:
- Every contract must be expressed to be made by the President or the Governor (as the case may be);
- Every contract must be executed on behalf of the President or the Governor (as the case may be).
- Every contract must be executed by a person authorized by the President or the Governor (as the case may be);
Article 299(1) is mandatory:- The courts have generally taken the view that Article 299(1) in the Constitution is based on public policy and for the protection of the general public. In number of cases, the Supreme Court has adopted a strict view of Article 299(1) and has held that the terms of Article 299(1) are mandatory and not directory, that these formalities cannot be waived or dispensed with. Therefore a contract not meeting the conditions stipulated in Article 299(1) becomes nullified and void. Such a contract cannot be enforced at the instance of any of the contracting parties. Neither can the government be sued and held liable for damages for breach of such a contract, nor can the government enforce such a contract against the other contracting party.
- Written Contract:- A contract to be valid under Article 299(1), must be in writing. The words ‘expressed to be made’ and ‘executed ‘in this article clearly go to show that the must be a formal written contract executed by a duly authorized person. Consequently, if there is an oral contract, the same is not binding on the Government.
- Execution by authorized person :-The next requirement is that such a contract can be entered into on behalf of the Government by a person authorized for that purpose by the President or the Governor as the case may be. If it is signed by an officer who is not authorized by the President or Governor, the said contract is not binding on the Government and cannot be enforced against it.
- Expression in the name of President (Governor):- The last requirement is that such a contract must be expressed in the name of the President or the Governor, as the case may be. Thus, even though such a contract is made by an officer authorized by the Government in this behalf, it is still not enforceable against the Government if it is not expressed to be made on behalf of the President or the Governor.
Q31- Reason for growth of Delegated Legislation
There are times when the disputes between the employer (Government) and employees over service matters can arise. This may also lead to litigation between the employees and the government. An employee can though approach the court for redressal of grievances for, the protection of the law is guaranteed to every citizen including government servants. But the judiciary is already overburdened with cases. Then, the court procedure is extremely cumbersome, costly and time-consuming. Due to the huge number of employees, the judicial remedy stands practically ruled out and there was a need for some alternative forum. Thus, the basic objective of the administrative tribunals is to take out certain matters of disputes between the citizen and government agencies of purview of the regular courts of law and make the dispute redressal process quick and less expensive.
The concept of administrative tribunals was introduced because it has certain advantages over ordinary courts. Few of them are mentioned below-
Flexibility: The introduction of administrative tribunals engendered flexibility and versatility in the judicial system of India. Unlike the procedures of the ordinary court which are stringent and inflexible, the administrative tribunals have a quite informal and easy-going procedure. Speedy Justice: The core objective of the administrative tribunal is to deliver quick and quality justice. Since the procedure here is not so complex, so, it is easy to decide the matters quickly and efficiently. Less Expensive: The Administrative Tribunals take less time to solve the cases as compared to the ordinary courts. As a result, the expenses are reduced. On the other hand, the ordinary courts have cumbrous and slow-going, thus, making the litigation costly. Therefore, the administrative tribunals are cheaper than ordinary courts. Quality Justice: If we consider the present scenario, the administrative tribunals are the best and the most effective method of providing adequate and quality justice in less time. Relief to Courts: The system of administrative adjudication has lowered down the burden of the cases on the ordinary courts.
Q33- Discuss the nature and scope of Administrative Laws.
Ans : Administrative law determines the organization, powers and duties of administrative authorities. The emphasis of Administrative Law is on procedures for formal judgment based on the principles of Natural Justice and for rule making. Administrative law also determines the nature and scope of the powers deliberated to the government official by the specific legislation. Through legislation, the Parliament delegate specific powers as well as duties to government officials to enable them to act on behalf of the government. The concept of Administrative Law is founded on the following principles:
- Power is conferred on the administration by law
- No power is absolute or uncontrolled howsoever broad the nature of the same might be.
- There should be reasonable restrictions on exercise of such powers depending on the situation.
The Administrative law deals with the structure, functions and powers of the Administrative structures. It also lays down the methods and procedures which are to be followed by them during the course of remedies which are available to the persons whose rights and other freedoms are damaged by their operations. Administrative law specifies the rights and liabilities of private individuals in their dealings with public officials and also specifies the procedures by which those rights and liabilities can be enforced by those private individuals. It provides accountability and responsibility in the administrative functioning. Also there are specified laws and rules and regulations that guide and direct the internal administration relations like hierarchy, division of labor etc.
Q34- Explain the theory of rule of law as propounded by Dicey? Also state with suitable examples its application in Indian Legal System.
Ans : The Rule of Law was first originated by Sir Edward Coke, the Chief Justice in England at the time of King James I. Coke was the first person to criticise the maxims of Divine Concept. He strongly believed that the King should also be under the Rule of Law. The Rule of Law doctrine was later developed by A.V. Dicey in his book, “Introduction to the Law of Constitution (1885).” The Rule of Law according to Dicey means that no man is punishable or can be lawfully made to suffer in body or goods except for distinct breach of law and no man is above the law. The term Rule of Law thus, means the paramountcy of Law over Government.
Three principles proposed by A.V. Dicey
- Absolute supremacy of Law
- Equality before law
- Predominance of legal spirit.
Dicey’s rule of law consists of following three meanings:
- Equality before the law: Dicey says it emphasises the impartiality of law. It means that there shall be no distinction between the rich and the poor, officials and non-officials, majority and minority, no one can be degraded and no one can be upgraded. Law gives equal justice to all.
- Rule of Law alone: The Rule of Law rejects all kinds of arbitrary and discretionary powers of the government or public officials. It implies that a man may be punished for a breach of law but he can’t be punished for anything else. An alleged offence is required to be proved before the ordinary courts in accordance with the legal procedure.
- Constitutional Law stems from ordinary law: It is generally presumed that the written constitution is the source of legal liberties of citizens. However, it is not true as Britain has an “unwritten Constitution.” Legal spirit is the real source of law in England. The legal spirit is seen in its customs, conventions and judicial decisions. Dicey opines that the individual rights and liberties are more safely protected in Britain than France.
The basic features of Rule of Law as per Dicey:
- Law does not recognise any special rights for any individual or group of individuals.
- Law does not recognise any distinction between one individual and the other on the basis of religion, race, sex, etc.
- None is punished without proper trial.
- All will be tried by the same court under the same law.
- The rule of law does not give scope to absolute and arbitrary powers to the executive.
Application of Rule of Law in India : Indian adopted the Common law system of justice delivery which owes its origins to British jurisprudence, the basis of which is the Rule of Law. Dicey famously maintained that the Englishman does not need Administrative law or any form of written law to keep checks on the government but that the Rule of Law and natural law would be enough to ensure the absence of executive arbitrariness. While India also accepts and follows the concept of natural law, there are formal and written laws to ensure compliance. Article 14 ensures that all citizens are equal and that no person shall be discriminated on the basis of sex, religion, race or place of birth, finally, it
