Administrative law @ Dal Candra

Administrative Law
By
Dal Chandra
Assistant Professor (Law)

Module 1
Introduction, Evolution, Nature and Scope of Administrative Law (10
Lectures)
• Introduction and Definitions of Administrative Law
• Source of Administrative Law
• Reasons for growth of Administrative Law
• Nature and Scope of Administrative Law
• Function of Administrative Law
• Relationship between constitutional law and administrative law
• Droit Administratiff
• Conseil d'Etate
• Separation of powers
• Rule of law

Module 2
1. Necessity for delegation of legislative power
2. Constitutionality of delegated legislation - powers of exclusion and
inclusion and power to modify statutes
3. Requirements for the validity of delegated legislation
4. Legislative control of delegated legislation
5. Judicial control of delegated legislation
6. Sub-delegation of legislative powers

Module 3:Judicial Power of Administration and Rule
of Natural Justice (10 Lectures)
• Administrative Tribunals
• Reasons for growth of Administrative Tribunals
• Administrative tribunals and other adjudicating authorities : their character
• Tribunals - need, constitution, jurisdiction and procedure
• Jurisdiction of administrative tribunals Quasi-judicial and administrative
functions
• Principles of Natural Justice
• Rule against Bias, Interest and Prejudice
• Rule of Audi Alteram Partem
• Speaking order or Reasoned Decisions
• Exclusion of the Principle of Natural Justice
• Effects of Breach of Natural justice
• Where Natural Justice Violated and not Violated: Illustrative Cases

Module 4:Judicial Control of Administrative Action
• Exhaustion of administrative remedies - Constitutional Remedies (Art. 32
and 226)
• Standing: standing for Public interest litigation (social action litigation)
collusion, bias
• Res judicata
• Grounds of Challenging Administrative Actions
• Jurisdictional error/ultra-virus
• Abuse and non exercise of jurisdiction
• Error apparent on the face of the record
• Violation of principles of natural justice
• Violation of public policy
• Unreasonableness
• Legitimate expectation
• Remedies in judicial Review: Statutory appeals, Mandamus, Certiorari,
Prohibition Quo-Warranto,Habeas Corpus

Module 5 Administrative Discretion and prevention
of Administrative Faults and redress of grievances
• Need for administrative discretion
• Administrative discretion and rule of law
• Limitations on exercise of discretion : 1.Mala-fide exercise of
discretion, 2. Constitutional imperatives and use of discretionary
authority, 3. Irrelevant considerations, 4. Non-exercise of
discretionary power, 5. Imposing self imposed fetters by the
administration
• Grievance against Administration, 1 Prevention of Corruption Act,
1988, 2. Ombudsman in India, 3. Ombudsman in England & US, 4.
Institution of Ombudsman in the States, 5. Right to Know and Right to
Information, 6. Discretion to Disobey, 7. Parliamentary Commissioner,
8. Lokpal, Lokayukta & Central Vigilance Commission (CVC)

Module 6. Liability of Government for Wrongs
(Tortuous and Contractual) (6 Lectures)
1. Tortuous liability: sovereign and non-sovereign functions
2. Statutory immunity
3. Act of State
4. Contractual liability of government
5. Government Privileges- Right of information- Doctrine of Legitimate
expectation- Doctrine of Accountability- Waiver- Doctrine of
Proportionality.
6. Ombudsman in India (Lokpal and Lokayuktha) - Central Vigilance
Commission (CVC)
7. Commission of Enquiry

INTRODUCION
• Administrative Law deals with administration, it is as old as any
organized administration.
• Administrative Law has been characterized as the most ‘outstanding
legal development of the twentieth century’
• However it does not mean that there was no administrative law in
any country before the twentieth Century.
• In India itself Administrative Law can be traced to the well organized
and centralized administration under the Mouryas dynasty and
Guptas dynasty
• Several Countries following through the administrative system of the
Mughals to the administration under the East India Company
Several Countries following through the administrative system
of the Mughals to the administration

Some Administration in India
• Ram Rjya Ramcharitmanas
• Maurya’s Dynasty- Kautilya’s Arthshashtra
• Gupta’s Dynasty- Chandra Gupta Vikramaditya (Vikram Vetal)
• Saltnat periods- Alauddin Khilji, Mohhammad Bin Tuglaq
• Mughals- Akbar, Jahagir
• East India Co.
• British Crown
• Indian Democracy

INTRODUCION
• The rapid growth of administrative Law in Modern times is the
directly result of the growth of administrative Power and functions.
• Mainly the growth of administrative law is to be attributes a change
of philosophy as regards the role and function of the state.
• State and its role was, to defending the countries from external
aggression, maintaining the law and order with in the country,
dispensing to its subjects and collecting a few tax to finance these
activities.
• Before 1947 India was Police State. The ruling foreign power was
primarily interested in strengthening its own domination the
administrative machinery was used mainly with that object in view
and the civil service came to be designed as the steel frame.
• The state did not concern much with the welfare of the people.

INTRODUCION
• But under the impact of the philosophy of welfare state, the role and
function of the government have under gone a radical change.
• Now the state is not merely a police state exercising sovereign
functions, but as a progressive democratic state it seeks to ensure
social security and social welfare for the common man
• On the one hand, slums, unhealthy and dangerous condition of work,
child labour, poverty and exploitation of mass,
• but on the other hand concentration of wealth in a few hands, The
state started to act in the interest of social justice, the role of the
state as a vehicle of socio- economic regeneration and welfare of
people.

INTRODUCTION
• The philosophy of welfare state has been ingrained in the preamble of
the constitution and the directive principle of the state policy.
• The constitution aims at establishing a sovereign, socialist, secular,
democratic republic in India so as to secure all its citizen, social,
economic and political justice.
• In Paschim Banga Khet Mazdoor Samity v State Of West Bengal AIR
1996 SC 2426. The Supreme court stated that “ the constitution
envisages the establishment of a welfare state at the federal level as
well as the state level. In a welfare state the primary duty of the
government is to secure to the welfare of the people.

INTRODUCTION
• The state today pervades every aspect of human life:
• It runs buses, railways, and postal services
• It undertakes planning of social and economic life of the community with a
view to raise the living standards of the people and reduce concentration
of wealth,
• It improves slum, plans urban and rural life, looks after health, moral and
education of the people
• It generates electricity, works mines and operates key and important
industries. It act as an active instrument of social economic policy
• The state plays major role in promoting socio economic welfare labour by
regulating employer-employee relationship and by other means.

INTRODUCTION
• Administration exercises to day not only the traditional functions of
administration but other varied types of function as well
• The administration exercises legislative power and issues a plethora
of rules, bylaws, and order of general nature. This is designated as
delegated legislation in administrative law.
• The administration has enquired powers of adjudication over disputes
between itself and private individuals and thus have emerged a
plethora of administrative tribunals and pronouncing binding
decisions like the courts.
• The administration has secured extensive power to grant, refuse or
revoke licenses, impose sanctions and take action of varies kind in its
discretion of subjective satisfaction
• It has been given vast powers inquiry inspection, investigation, search
and seizure and supervision

Definitions of Administrative Law
•“Administrative law is the law relating to the
administration. It determines the organization,
powers and duties of administrative authorities.”
-Sir Ivor Jennings
•“ Administrative Law is a branch of Public Law which
is concern with the composition, power, duties, rights
and liabilities of the varies organs of government
which are engaged in administration”
-Wade and Philips

• “The Law relating to the control of governmental
Power”
-H.W.R. Wade
• “Administrative Law is that branch of the law which
seeks to ensure observance of the rule of law”
-Justice Bhagwati

According to Griffith and Street
• Administrative Law is concern with three question
• 1. What sort of powers does the Administration
exercise?
• 2. What are the limits of those power
• 3. What are the ways in which the administration is
kept with in those limits
.

According to the ILI the following two question must be
added to have a complete idea of present day
Administrative Law
4.What are the procedures followed by administrative
authorities?
5. What are the remedies available to a person affected
by administration

Reason for the expansion of Administrative Law
1. Change in the concept of the government
2. Demand of the people
3. Evolution of Socialistic pattern of society
4. Inadequacy of Judicial System
5. Inadequacy of legislative process
6. Non technical character of Administrative process
7. Principles of Good Governance

Sources of Administrative Law
1. Constitution
2. Statutes
3. Ordinance
4. Delegated legislation
5. Case laws
6. Reports of committees and Law Commission

Nature and Scope of Administrative Law.
• The administrative Law can said to be a study of multifarious
powers of administrative authorities and their control. The
nature of power exercisable by the administrative authorities
can be studied under the three heads.
• 1. Legislative or Rule making power of Administrative
authorities.
• 2. Judicial or Adjudicative Power of Administrative
authorities.
• 3. Purely Administrative Power of Administrative authorities.

• One of the advances in the real of administrative
process made during these days is that apart from
pure administrative function the executive perform
legislative and judicial function as well

Legislative or rule making power of the
administrative authorities
• to the pressure upon parliamentary time and number of
other reasons there is rapid growth of administrative
legislation.
• A trend very much in vogue to day in all democratic
countries is that a good deal of legislation takes place in
government departments outside the house of legislature.
• This type of activity is known as ‘delegated legislation’

• Generally what happens is that legislature enacts a
law covering only general principles and policies
relating to the subjects matter in question and confers
rule making power on the government or some other
administrative agency.

• This is so because the direct legislation of parliament is not
complete. The executive is given power to supplement the
laws made by the legislature. The result is that the technique
of delegated legislation is so widely used in modern time as a
process of government that there is no statute passed by
legislature to day which does not delegate some power of
legislation to the executive

Judicial or Adjudicative Function of the
Administrative authorities
• Not only administrative and legislative function the executive
perform judicial function as well.
• In a socialistic society bulk of cases are not decided by the
ordinary court. When a disputes arises between the
administrative agency and a private person, it is settled by the
administration this is called administrative adjudication.
• Administrative adjudication has come into adjudication as a result of
the philosophy of the welfare state and consequential socialization of
law.
• It is not possible for ordinary courts of law to deal with all issues of
socio economic policies

• for example industrial relations between the workers
and the management must be settled as soon as
possible. It is not in the interest of the parties to the
dispute but of the society at large.
• It is not possible for the ordinary court to decide these
disputes expeditiously.

• Administrative Tribunals are, therefore, established to
decide various quasijudicial issues in place of ordinary
Courts of laws.
• Tribunal are recognized even by the constitution of
india.
• Tribunal is an administrative body which exercise the
power to adjudicate

Droit Administratif
• Droit Administratif is a branch of law which determines the
organization, powers and duties of public administration
• Droit Administratif is a very old system. It was regularly put
into practice by Napoleon in the 18th century. Nepoleon
favored freedom for the administration and also favored
reforms.
• Dual judicature in France
• Civil and Administrative Court
• Under the French legal system known as droit administratif,
there are two types of law and two sets of courts
independent from each other.
• The administrative court administer the law as between
subject and the state

Conseil d’Etat
• Conseil d’Etat is the highest administrative court.
• The Conseil d’Etat is composed of eminent civil
servants, deals with a variety of matters like claim of
damages for wrongful acts of Government servants,
income-tax, pensions, disputed elections,
• If there is any conflict between the ordinary courts
and the administrative courts regarding jurisdiction
the matter is decided by the Tribunal des conflits.
There is special tribunal which consists of an equal
number of ordinary and administrative judges. It is
presided over by the minister of justice.

Rule of Law
• The term rule of Law means the principle of legality which
refers to a government based on principles of law and not
of man. In this sense the concept of the rule of law is
opposed to arbitrary powers.
• Rule of law is one of the basic principles of the English
constitution. The doctrine has been enshrined in the
constitution of U.S.A. and in constitution of India as well
• The entire basis of Administrative law is the concept of rule
of law.
• Sir Edward coke English barrister judge and politician is said
to be the originator of this great principle.
• In a battle against the king, he succeeded in maintaining
that the king must be under the god and the Law. And thus
vindicated the supremacy of law against the executive.

Meaning of Rule of Law
• Dicey developed this doctrine of coke in his classic book “The law and
the constitution” published in year 1885
• He attributed the following three meanings to the doctrine
1. Supremacy of the law
2. Equality before Law and
3. Predominance of legal sprit
According to wade “ the rule of law requires that the government
should be subject to the law, rather than the law subject to the
government.”

• The Doctrine of Rule of Law proved to be a powerful instrument in
controlling the administrative authorities with in their limits.
• They must act according to law and can not take any action as per
their personal whims or caprice
• It is the duty of the court to see that these authorities must exercise
their powers within the limits of law.

Criticism of Dicey
Dicey has opposed the system of providing the discretionary
power to the administration. In his opinion providing the
discretionary power means creating the room for
arbitrariness.
Now days it has been clear that providing the discretion to
the administration is inevitable
Dicey has failed to distinguish discretionary powers from
the arbitrary powers.
In modern times in all the countries including England,
America and India, the discretionary powers are conferred
on the Government

Criticism of Dicey
The administrative law is much concerned with the control of the
discretionary power of the administration
He criticized the system of droit administrative which is prevailing in
France
This proportion of Dicey does not appear to be correct even in England.
Several persons enjoy some privileges and immunities. For example,
Judges enjoy immunities from suit in respect of their acts done in
discharge of their official function.

Basic Principles of the Rule of Law
• Law is Supreme, above everything and every one. No one is above the
law.
• All things should be done according to law and not according to
personal whim
• No person should be made to suffer except for a distinct breach of law.
• Absence of arbitrary power being heart and sole of rule of law
• Equality before law and equal protection of law
• Discretion should be exercised within reasonable limits set by law
• Adequate safeguard against executive abuse of powers
• Independent and impartial Judiciary
• Fair and Justice procedure
• Speedy Trial.

Modern Concept of Rule of Law
• Law and order
• Fixed rule
• Due process of law or fairness
• Observance of principle of natural justice
• Elimination of discretionary power
• Preference for Judges and Ordinary courts
• Judicial Review of administrative actions

Rule of Law and Indian Constitution
• In India the Constitution is supreme. The preamble of our
Constitution clearly sets out the principle of rule of law. It is
sometimes said that planning and welfare schemes essentially
strike at rule of law because they affect the individual
freedoms and liberty in many ways. But rule of law plays an
effective role by emphasizing upon fair play and greater
accountability of the administration. It lays greater emphasis
upon the principles of natural justice and the rule of speaking
order in administrative process in order to eliminate
administrative arbitrariness.

Doctrine of Separation of Powers
• The doctrine of Separation of Powers is of ancient origin.
• The history of The origin of the doctrine is traceable to Aristotle.
• In the 16th and 17th Centuries, French philosopher John Boding and
British Politician Locke respectively had expounded the doctrine of
separation of powers.
• But it was Montesquieu, French jurist, who for the first time gave it a
systematic and scientific formulation in his book ‘Esprit des Lois’ (The
spirit of the laws).

Meaning of separation of Powers
•It is generally accepted that there are three main categories of
governmental functions – (i) the legislative, (ii) the Executive,
and (iii) the Judicial.
•At the same time, there are three main organs of the
Government in State i.e. legislature, executive and judiciary.
According to the theory of separation of powers, these three
powers and functions of the Government must, in a free
democracy, always be kept separate and exercised by separate
organs of the Government. Thus, the legislature cannot
exercise executive or judicial power; the executive cannot
exercise legislative or judicial power of the Government.

As the concept of Separation of Powers‘ explained by
Wade and Philips, it means three different things:-
• I. That the same persons should not form part of more than one of the three
organs of Government, e.g. the Ministers should not sit in Parliament;
• ii. That one organ of the Government should not control or interfere with the
exercise of its function by another organ, e.g. the Judiciary should be
independent of the Executive or that Ministers should not be responsible to
Parliament; and
• iii. That one organ of the Government should not exercise the functions of
another, e.g. the Ministers should not have legislative powers.

SEPARATION OF POWERS & THE INDIAN
CONSTITUTION
•Under the Indian Constitution, the executive powers are vested
with the President and Governors for respective states. The
President is, therefore, regarded as the Chief Executive of
Indian Union who exercises his powers as per the constitutional
mandate on the aid and advice of the council of ministers . The
president is also empowered to promulgate ordinances in
exercise o his extensive legislative powers which extend to all
matters that are within the legislative competence of the
Parliament. Such a power is co-extensive with the legislative
power of the Parliament.

• Apart from ordinance making, he is also vested with powers to frame
rules and regulations relating to the service matters. In the absence of
Parliamentary enactments, these rules and regulations hold the field
and regulate the entire course of public service under the Union and
the States. Promulgation of emergency in emergent situations is yet
another sphere of legislative power which the President is closed with.
While exercising the power after the promulgation of emergency, he
can make laws for a state after the dissolution of state legislature
following the declaration of emergency in a particular state, on failure
of the constitutional machinery.

Differences between Constitutional & Administrative Law
Constitutional law and administrative law both are
concerned with functions of government, both are a
part of public law in the modern state and the sources
of the both are the same.
The administrative law is an addition of the
constitutional law. To the early English writers on
administrative law there was no difference between
administrative law and constitutional law.
Therefore, Keith observed: “It is logically impossible to
distinguish administrative Law from constitutional law
and all attempts to do so are artificial”.

Differences between Constitutional & Administrative Law
according to Holland, “Constitutional law describes the various organs of
the government at rest, while administrative law describes them in
motion”
Therefore, according to this view, the structure of the legislature and
executive comes within the purview of the constitutional law but there
functioning comes within the sphere of administrative law.
According to Jennings - administrative law deals with the organization,
functions, powers and duties of administrative authorities while
constitutional law deals with the general principles relating to the
organization and powers of the various organs of the state and their
mutual relationship of these organs with the individuals. In other words,
constitutional law deals with fundamentals while administrative law
deals with details.

Delegated legislation: Legislative or rule making power of
the administrative authorities
• to the pressure upon parliamentary time and number of
other reasons for rapid growth of administrative legislation
• A trend very much in vogue today in all democratic
countries is that a good deal of legislation takes place in
government department out side the houses of legislature.
• This type of activity is known as delegated legislation.
• The technique of delegated legislation is so widely used in
modern time as a process of government that there is no
statute passed by the legislature to day which does not
delegate some power of legislation to the executive.

Delegated Legislation
• Generally what happens is that legislature enacts a
law covering only general principles and policies
relating to the subjects matter in question and
confers rule making power on the government or
some other administrative agency.
• This is so because the direct legislation of parliament
is not complete. The executive is given power to
supplement the laws made by the legislature. The
result is that the technique of delegated legislation is
so widely used in modern time as a process of
government that there is no statute passed by
legislature to day which does not delegate some
power of legislation to the executive

Definition of Delegated legislation
•When an instrument of legislative nature is made
by executive authority in exercise of a power
delegated or conferred by the legislature it is
called subordinate legislation
•Delegated Legislation means the law made by the
executive under the powers delegated to it by the
legislature
•Delegated legislation refers to all law making
which is generally expressed as rules, regulations,
bye laws, orders, schemes, directions, circulars or
notifications etc.

Factors Leading to the growth of Delegated
Legislation
• 1. Pressure upon Parliamentary time
• 2. Technicality
• 3. Flexibility
• 4. Experimentation
• 5. Emergency
• 6. Confidential matters
• 7. Complexity of modern administration

Constitutionality of the Delegated Legislation
• The question of constitutional validity of delegation of
powers came for consideration before federal court in
Jatindra Nath Gupta v. Province of Bihar AIR 1949 FC 175
• In this case the validity of section 1(3) of Bihar Maintenance
of Public order Act.1949 was challenged on the ground that
it empowered the provincial government to extend the life
of the act for one year with such modification as it may
deem fit. The federal court held that the power of
extension with modification is not a valid delegation of
legislative power because it is an essential legislative
function. Which can not be delegated. In this way for the
first time it was ruled that in India legislative Powers can
not be delegated.

• Post Constitutional Period
As decision in Jatindra Nath case had created confusion the
question of permissible limits of delegation of legislative power
became important . Therefore in order to get the position of law
clarified, the president of India sought the opinion of Supreme
Court under article 143 of the constitution. The question of law
which was referred to the Supreme Court was of great
constitutional importance and was first of its kind the provision
of three acts-
(i) Section 7 of the Delhi Laws Act, 1912;
(ii) Section 2 of the Ajmer- Mewar (Extension of Laws) Act,1947;
and
(iii)Section 2 of the Part C States (Laws) Act, 1950; were in issue
in Delhi laws Act case Re AIR 1951 SC
Part C states were direct administration of the central
government

• The central government was authorized by sec 2 of the Part
C states (Laws) Act. 1950 to extend to any part C State such
modification and restriction as it think fit, any enactment
inforce in part A state and while doing so, it could repeal or
amend any corresponding law which might be inforce in the
part C states. Really it was a very sweeping kind of
delegation.
• The supreme court was called upon determine the
constitutionality of this provision. All the seven judges who
participated in the reference gave seven separate
judgements “exhibiting” a cleavage of judicial opinion on
the question of limits to which the legislature in India
should be permitted to delegate legislative power.

• By a majority the specific provision in question was
held valid subject to two limitation.
• (I) the executive can not be authorized to repeal a
law inforce and thus the provision which authorize
the central government to repeal a law already in
force in the Part C State was bad ; and
• (II) by exercising the power of modification the
legislative policy should not be changed, and thus
before applying and law to the part C State the
central government can not change the legislative
policy.

Principle laid down in the reference case
• In Re Delhi Laws Act may be said to be
“Siddhantwali” as regards constitutionality of
delegated legislation. The importance of the case can
not be under-estimated in as much as on the one
hand it permitted delegation of the legislative power
by the legislature to the executive while on the other
hand it demarcated the extent of such permissible
delegation of power by the legislature

Principle laid down in the reference case
• In this case it was propounded:
• (a) Parliament can not abdicate or efface itself by creating a parallel
legislative body.
• (b) power of delegation is ancillary to the power of legislation.
• (c) the limitation upon delegation of legislative power is that the
legislature can not part with its essential legislative power that has
been expressly vested in it by the constitution . Essential legislative
power means laying down policy of law and enacting that policy
into a binding rule of conduct.
• (d)power to repeal is legislative and it can not be delegated.
• The theme of In Re Delhi Laws Act case is that essential legislative
function can not be delegated non essential can be delegated.

Judicial Control over the Delegated Legislation: Doctrine of Ultra Vires
• Judicial control over delegated legislation is exercised by applying two test
• 1. Substantive Ultra Vires
• 2. Procedural Ultra Vires
• Ultra Vires means beyond the powers
• When a delegated legislation goes beyond the scope and authority conferred on
the delegate to enact it is known as substantive ultra vires
• When a delegated legislation is enacted without complying with the procedural
requirements prescribe by Parent Act or by general Law it is known as procedural
ultra vires

Judicial control over delegated legislation is exercised by applying
the doctrine of ultra vires in a number of circumstances.
• 1. Where Parent Act is ultra vires the constitution
-Express constitutional limits- three list 1. state list 2. union list and 3.concurrent
list
-Implied constitutional limits.
In re Delhi Laws Act case
-Constitutional rights.
Chintaman Rao v. state of M.P.AIR 1951 SC118
Deputy commissioner prohibit the manufacturing of Bidi in notified area during the
agriculture season as fixed by him. Imposed totally ban, violated the fundamental
rights to carry on trade, business, profession and occupation, guaranteed U/A 19
(1) g

• 2. where delegated Legislation is ultra vires the constitution
-Arbitrary power is ultra vires the constitution
• 3. where delegated legislation is ultra vires the parent act.
-Delegated legislation is excess to the power conferred by parent act
-delegated legislation in conflict with the prescribed procedure of the
parent act.

• In Himmat v. commissioner of police AIR1973 SC 87
• Section 33 of Bombay Police Act, 1951 authorized the commissioner of police to
make rules for regulation of conduct and behavior of assemblies and procession
on or along the street. Rule 7 made thereunder provided that no public meeting
will be held without previous permission of the commissioner. the rule was held
ultra-virus impose unreasonable restriction on freedom of speech and expression
under art. 19 1 a
• Dwarka Nath v Munisple Corporation.
• Prevention of Food Adulteration act 1954 empowered the central government
under sec. 23 (1) to make rule for restricting the packing and labelling of any
article of food with the end in view to preventing the public from being deceived
or misled as to quantity and quality of the article. Government stated that there
shall be specified on every label name and address of manufacturer, batch no. or
code no. Mohan ghee laboratories Delhi-5

Legislative Control over the Delegated Legislation
•As usual law making power is vested in the legislature. On
this principle law making power should be exercised by the
legislature. But if the legislature delegates legislative powers
to the executive, it must also see that powers are properly
exercised by the administration.
•Jain and Jain rightly observed: it is the function of the
legislature to legislate, but if it seeks to give this power to the
executive in some circumstances, it is the not only the right of
the legislature but also its duty as principal to see how its
agent (executive) carries out the agency entrusted to it.

Legislative Control over the Delegated Legislation
•Since it is legislature which delegates legislative power to the
administration, it is primarily for it to supervise and control
the actual exercise of this power and ensure against the
danger of its objectionable, abusive and unwarranted use by
the administration
•Three prong control is exercised by the legislature over
delegated legislation as follows.
•(a) Proceedings in parliament,
•(b) Laying on the table and
•(c) Scrutiny Committee.

1.Proceedings in Parliament
•A number of proceedings are involved in exercise of control
over delegation of legislative power by the legislature-
•(i) debate on delegating bill
•(ii) asking question and giving notices
•(iii) resolution on motion
•(iv) demand for vote on grant
•(v) direction by speaker

2. Laying on the table
• Laying serves two purpose, firstly it informs the
legislature as to what rules have been framed by the
administrative authority in exercise of law making
power and secondly it provides an opportunity to
the legislature to question or challenge the rules
already made or proposed to be made.

3. Scrutiny Committee
•Significant control over delegated legislation is exercised by
the legislature through its committees. Under the constitution
of India also two scrutiny committee have been established:
•(I) The Lok Sabha committee on subordinate legislation and
•(II) The Rajya Sabha Committee on subordinate legislation

Constitution of the Lok Sabha committee on the subordinate
legislation
•The Lok Sabha committee on subordinate legislation consists
of 15 members nominated by the speaker for one year.
•It represent all the political parties in the house in proportion
to their respective strength.
•A minister can not be a member of the committee.
•The chairman of the committee is also nominated by the
speaker from among the members of the committee.
•The chairman is usually a member of the opposition

Constitution of the Rajya Sabha committee
• The Rajya Sabha committee also consists of 15
members who are nominated by the chairman of the
rajya sabha.
• The chairman of the committee is also nominated by
the chairman of the rajya sabha.
• A minister is not prohibited from becoming a
member of the rajya sabha committee

Functions of the committees
• These committees are required to scrutinize and
report to the respective houses whether the powers
to make regulation, rules, sub-rules, bye-laws, etc.
conferred by the constitution or delegated by the
Parliament are being properly exercised within such
delegation.
• They act as watch-dog which bark and arouse their
master from slumber when they find that an
invasion on the premises has been taken place.

Conclusion
• Parliamentary control over administrative rule
making is admittedly weak.
• Wade says “one of the features of the twentieth
century has been a shift of the constitutional center
of gravity away from parliament and towards the
executive.
• Mr. Lloyd George once said, “ I am speaking now
after forty years of my experience. Parliament has
really no control over the executive it is a pure
fiction.

Administrative Adjudication and Tribunals
•The term administrative adjudication has been used
synonymously with administrative justice.
•In a socialistic society bulk of cases are not decided by the
ordinary court .
•When a dispute arise between an administrative agency and a
private person, it is settled by the administration this is called
administrative adjudication.
•Administrative adjudication has come into existence as a
result of the philosophy of welfare state and consequential
socialization of law.

Continue…
•It is not in the interest of the parties to the disputes of
the society but of the society at large
•It is not possible for the ordinary court to decide these
disputes expeditiously.
•Administrative Tribunals are therefore established to
decide various quasi judicial issues in place of ordinary
courts of law.
•Tribunals are recognized by even by the constitution of
India.

Reason for the growth of Administrative Tribunals
• The complexities of intensive form of government and synthetic structure of
present society have given rise to new problems requiring new solutions.
• 1. Inadequacy of Judicial System
• 2. Merits of the System of Administrative Adjudication
• 3. Need for expertise
• 4. functional approach to socio-economic problems
• 5. Preventive measures
• 6. Functioning of Tribunal

Differences between Court and Tribunals
• Associated Cement Companies Ltd. V. R.N. Sharma in this case the Supreme Court
observed: the basic and fundamental feature which is common to both the
courts and tribunals is that they discharge judicial functions and exercise judicial
power.
• However it must be noted that an administrative tribunal is not a court. A
tribunal has some of trappings of a court but not all. Therefore it follows that
both must be distinguished.

Difference between court & tribunals (Continue…)
BASIS FOR
COMPARISO
N
TRIBUNAL COURT
Meaning Tribunals can be described as
minor courts, that adjudicates
disputes arising in special cases.
Court refers to a part of legal
system which are established to
give their decisions on civil and
criminal cases.
Decision Awards Judgement, decree, conviction or
acquittal
Deals with Specific cases Variety of cases

Continue..
Headed by Chairperson and other judicial
members
Judge, panel of judges or
magistrate
Code of
Procedure
No such code of procedure. It has to follow the code of
procedure strictly.
BASIS FOR
COMPARISON
TRIBUNAL COURT

Definition of Administrative Tribunals
The word ‘tribunal’ takes its origin from the Latin term tribunus which means “a
raised platform with the seat of judge, who elected by the pleas of protect their
interests9”.
• According to Oxford Dictionary, the tribunal means “Judgment Seat or “a Court of
justice.10
• According to Oxford Companion of law “any person or body of persons having to
judge, adjudicate on or determine claims or disputes….11
• Tribunals can be called as “Judgment seat or court of justice or board or
committee appointed to adjudicate on claims of a particular kind”.
• Therefore, they are adjudicatory bodies (except ordinary courts of law)
constituted by the State and entrusted with judicial and quasi-judicial functions
as distinguished from administrative or executive functions

NATURAL JUSTICE
•Natural justice is envisaged in administrative law for ensuring
fair exercise of power by administrative agencies
•Nowadays the power of administrative authorities have
considerably increased.
•Minimum fair procedure refers to natural justice
•Administrative law concerned with “how the work is done”
than “what work is done”

NATURAL JUSTICE
•Natural justice is best instrument to promote the interests of
individual.
•Natural Justice is an ethico-legal concept which is based on
natural feeling of human being.
•It is great principle of humanization which informs law and
procedure with fairness and impartiality.
•Natural justice is an ideal element in administrative law. In this
sense natural justice is known as natural law, universal law
divine justice, universal justice or fair play in action

PRINCIPLES OF NATURAL JUSTICE
•Natural justice represents higher procedural principles
developed by judges which every administrative agency must
follow in taking decision adversely affecting the rights of
private individuals
•The principle of natural justice entails two principles:
•(1). Nemo judex in causa sua
• no man shall be judge in his own cause or
• the deciding authority must be impartial and without bias
• Rule against bias

• (2).Audi alteram partem
• Hear the other side or
• both side must be heard, or
• no man should be condemned un heard or
• that there must be fairness on the part of deciding
authority
• Rule of hearing or
• fair hearing

THE FIRST PRINCIPLE OF NATURAL JUSTICE
•Nemo judex in causa sua or Rule against bias
•No man shall be judge in his own cause or
•The deciding authority must be impartial and without bias.
•Justice should not only be done but seen to be done
•Rule against bias is justified on the ground that impartiality is a
characteristic of good administration.

THE FIRST PRINCIPLE OF NATURAL JUSTICE
• This principle is applicable not only to judicial
proceedings but also to quasi-judicial as well as
administrative proceedings.
• It is minimum requirement of natural justice that the
authority must consist of impartial person who are to
act fairly and without prejudice and bias

TYPE OF BIAS
• Bias appears in various forms which may affect the
decision in variety of ways. the various types of bias
are:
• 1. Pecuniary Bias.
• 1. Personal Bias.
• 3. Subject Matter Bias.
• 4. Departmental Bias. And
• 5. Policy Bias.

1. Pecuniary Bias
•As regards pecuniary bias the least pecuniary interest in the
subject matter of litigation will disqualify any person from
acting as a judge
•According to Griffith and Street “ a pecuniary interest however
slight will disqualify even though it is not proved that the
decision is in any way affected.

Bonhm Case:
• In Bonhm Case: Dr. Bonhm a doctor of Cambridge
University was fined by the college of physicians for
practicing in the city of London without the licence of
the college. The statute under which college acted
provided that the fines should go half to the king and
half to the college.

DIMES V. GRAND JUNCTION CANAL
Dimes v. Grand Junction Canal is regarded as the classical
example of pecuniary bias. In this case a public company filed a
suit against a land owner in matter largely involving the interest
of the company. The Lord Chancellor who was a shareholder in
the company decided the case and gave to the company the
relief which was claimed. His decision was quashed by the house
of lords because the pecuniary interest of the lord chancellor in
the company.

Manak Lal v. Dr. Prem Chand
•“It is obvious that pecuniary interest
however small it may be in a subject matter
of the proceedings would wholly disqualify
a member from acting as a judge.”

2. Personal Bias
•Personal bias arises in a number of
circumstances involving a certain relationship
equation between the deciding authority and
the parties
•Here a judge may be relative, friend or business
associate of a party

A.K. Kraipak v. Union of India
• In this case Naquishbund was candidate for selection
to the Indian foreign service and was also a member
of the selection board. Naquishbund did not sit on the
selection board when his name was considered.
Naquishbund was recommended by the board and he
was selected by the public service commission. The
candidates who were not selected challenged the
selection of Naquishbund on the ground that the
principle of natural justice were violated.

A.K. Kraipak v. Union of India
• The supreme Court quashed the selection and
observed “ it is against all canons of justice to make a
man judge in own cause. It is true that he did not
participate in deliberation of committee when his
name considered. But then the very fact that he was
member of the selection committee must have its
own impact on decision of the selection board.

Second Principle of Natural Justice
“Audi alteram partem”
•Hear the other side or
•both side must be heard, or
•no man should be condemned un heard or
• that there must be fairness on the part of
deciding authority
•Rule of hearing or
•fair hearing

Second Principle of Natural Justice
•The universal rule of fair procedure in “audi
alteram partem”- hear the other party.
•Thus hearing means natural justice or fairness
•If a dispute arise between two parties and both
the parties are given the opportunities to
present their case the decision would be fair.
•If one party is heard, the other party must have
the right to be heard.

King v. Chancellor university of Cambridge
•The first hearing of human history was given in the garden of
Eden
•Even God himself did not pass sentence upon Adam, before he
was called upon to make his defense
•‘Adam’ says God “where art thou? Hast you not eaten of the
tree whereof I commanded thee that thou shouldst not eat?”
•It is implied principle of rule of law that before deciding against
the rights or interest of a person he must be given opportunity
to present his case and oppose the decision.
•If this is not done natural justice is disregarded.

• It is the first principle of civilized jurisprudence and is
accepted by Men and God
• Generally the maxim includes two ingredients:
• 1. Notice and
• 2. Hearing

Notice
• Any order passed without giving notice is against the
principle of natural justice and is void ab initio.
• Further it is necessary that the notice must be clear,
specific, and unambiguous and charges should not be
vague and uncertain

Adequacy of Notice
•1. Time, place and nature of hearing
•2. Legal authority and jurisdiction under which
hearing is to be held
•3. Matters of fact and Law as regards charges

Fair hearing
•1. reception of evidence produced by the person
•2. Disclosure of materials
•3. Rebuttals of adverse evidence:
•I. Cross examination
•II. Legal representation

REASONED DECISIONS
•A reasoned decision means a decision which must contain
reasons in support of it.
•The value of reasoned decision as a check upon the arbitrary
use of administrative power is quit clear.
•A party has right to know not only the result of inquiry but
also reason in support of the decision.
•The obligation to give a reasoned decision is a substantial
check upon the abuse the power.
•Lord Denning rightly says the giving of reasons is one of the
fundamentals of good administration.

Exclusion of Natural Justice
•The requirement of natural justice may be excluded
under certain exceptional circumstances.
•1. Impracticability
•2. Emergency.
•3. Public Interest.
•4. Academic Evolution.
•5. Interim disciplinary action.
•6. Statutory exclusion

impracticability
• Bihar school board examination v. subhash Chandra
• Radha Krishnan v. Osmania university

Emergency
• Where a dangerous building required to be demolish
to save human lives
• Where a banking co. is required to be wound up to
protect the interest of depositor.
• Where a passport required to be impounded in public
interest
• A trade dangerous to society is to be prohibited.

PUBLIC INTEREST
• MANEKA GANDHI V. UNION OF INDIA
• In the interest of public safety, public health, or public morality.
• a passport may be impounded in public interest without compliance
with the principle of natural justice but as soon as the order
impounding the passport has been made an opportunity of post
decisional hearing remedial in aim should be given to the person
concerned.

Academic Evolution
• JNU V. B S Narwal
• Unsatisfactory academic performance
• University are best qualified to judge and courts perhaps are least
qualified to judge.
• Interim disciplinary action
Abhay kumar v. k sri niwasan

Administrative Discretion
• Coke once said that discretion is a science or understanding to discern between falsity
and truth, between right and wrong and not to do according to will and private
affection.
• Discretion in this sense means choosing from among the various available alternatives
but with reference to the rules of reasons and justice and not according to personal
whims
• Such exercise is not to be arbitrary, vague, and fanciful, but legal and regular
• Administrative discretion may be denoted by such coined term as public interest, public
purpose , fair, fit, prejudicial to public safety and security, satisfaction, belief, efficient,
reasonable, proper sufficient.
• Discretion without a criterion of its exercise is authorization of arbitrariness
• When we speak of administrative discretion, we mean that a determination may be
reached in part at least upon the basis of consideration not entirely susceptible of proof
or disproof…..It may be practically convenient to say that discretion includes the case in
which the ascertainment of fact is legitimately left to administrative discretion.

Failure to exercise discretion
• 1. Acting Mechanically- Mergu Satya Narayana v. State of AP
• 2. Abdication od function– Manik chand v. State
• 3. Imposing fetter on the exercise of discretion---Keshwan Bhaskaran
v. State of Kerla.
• 4. Acting under dictation…Commissioner of Police v. gordhan das
• 5. Non Application of Mind--- Pratapore company ltd. V. cane
commissioner of Bihar

The difference between arbitrary and discretionary Power
• is that arbitrary is (usually of a decision) based on individual discretion or
judgment; not based on any objective distinction, perhaps even made at random
while discretionary is available at one's discretion; able to be used as one
chooses; left to or regulated by one's own discretion or judgment

Public Interest litigation (PIL)
• The Indian legal system is unique when compared to various other legal structure
in the world. One thing that contributes to the uniqueness is Public Interest
Litigation, which is also known as PIL. PIL is a type of petition filed before the
court of justice for the purpose of social welfare. The concept of PIL is made so
that necessary improvements can be made in the administrative structure
designed by the appropriate authority.
• PIL plays an important role is changing the society as per the requirements and
therefore it is essential for every individual to have a gist about this type of
petition, its benefits, demerits, usage and how can it be filed before the court as
every individual being a citizen of India, has the fundamental duty to contribute
their best for the welfare of the society

• The concept of PIL came into India in the nineteenth century. It is an
improved version of U.S.A‟s Public Interest Litigation. The purpose of
blending this concept with the Indian legal framework was to
safeguard the interest of the lower section of the community, who
were poor, and were not able to safeguard their fundamental rights.
• The parents of this concept in India are Justice P.N. Bhagwati and
Justice V.R. Krishna Iyer. They were the ones who recognised in
providing justice to the poor people by relaxing the rule of locus
standi in 1980‟s. As a result of it, any citizen or a group can approach
the apex court to seek remedy, in which there is an interest of the
Public at large

OBJECTIVES OF PUBLIC INTEREST LITIGATION
• According to Justice Krishna Iyer, Public Interest Litigation is a process of
obtaining justice for the people, of voicing people's grievances through the legal
process. The aim of PIL is to give to the common people of this country, access to
the courts so as to seek legal redress.
• The general objectives of public interest litigation can be summarized as follows:
• Increasing respect for the law
• Restoring confidence in the legal system and the justice delivery system
• Redress and compensation for victims and survivors
• Monitoring human rights violations and trends
• Documentation of human rights violations (the victims, the violation and the
offender)
• Fighting lawlessness
• Strengthening the Constitution of India

• Restoration of public confidence in the justice delivery system
• Restoration of and respect for the rule of law
• Restoration of professionalism in and de-politicisation of the police
force and other state organs
• Accountability in the public sector
• Improvement of the human rights situation in India

Right to Constitutional Remedies (Art. 32 &) Writs
Kinds of writs
•Habeas Corpus
•Quo Warranto
•Mandamus
•Certiorari
•Prohibition

Habeas Corpus
Meaning - You (shall) have the body
• •Purpose - To seek relief from the unlawful detention of him or herself, or of
another person
• •To protect the individual from harming him or herself, or from being harmed by
the Administrative system.
• •For safeguarding of individual freedom against arbitrary state action which
violates f.rts. u/A. 19,21 & 22 of Constitution.
• •Res judicata – not applicable
• •Cannot be suspended even during Emergency [Art.359] [ADM Jabalpur
v.Shivakant Shukla (Habeas Corpus case) AIR 1976 SC 1207-opinion of
H.R.Khanna,J-its impact -44th Amendment, 1978]

Quo warranto
• By what warrant?
• •Requires the person to whom it is directed to show what authority
he has for exercising some right or power (or "franchise") he claims to
hold.
• •Invoked in case of Public offices
• •Ashok Pandey v.Mayawati (AIR 2007 SC 2259)-writ of QW was
refused against Ms.Mayawati (CM) and other ministers of her cabinet
even though they were Rajya sabha members

Mandamus
• Means "we command" in Latin
• •"issued by a superior court to compel a lower court or a government
officer to perform mandatory or purely ministerial duties correctly"
• •An order from a superior court to any government, subordinate court,
corporation or public to do or forbear from doing some specific act
which that body is obliged under law to do or refrain from doing, as
the case may be, and which is in the nature of public duty and in
certain cases of a statutory duty

Certiorari
• •Latin certiorare, ("to search").
• •Currently means an order by a higher court directing
a lower court, tribunal, or public authority to send the
record in a given case for review.
• •Grounds of issue:

Prohibition
• •is an official legal document drafted and issued by a supreme court or superior
court to a judge presiding over a suit in an inferior court
• •used to prevent an inferior court from exceeding its jurisdiction or acting
contrary to the rules of natural justice
• •may be issued both in cases where there is an excess of jurisdiction and where
there is absence of jurisdiction.
• •Prohibition and certiorari lie only against judicial and quasi-judicial bodies.
They do not lie against public authority in an executive or administrative
capacity nor a legislative body.

Vicarious Liability of State: An Introduction
• The term ‘administration’ is used here synonymously with ‘state’ or
‘Government’. To what extend the administration would be liable for
the torts committed by its servants is a complex problem especially in
developing countries with ever widening State activities. The liability
of the government in tort is governed by the principles of public law
inherited from British Common law and the provisions of the
Constitution. The whole idea of Vicariously Liability of the State for
the torts committed by its servants is based on three principles

Pre-Constitution Judicial Decisions:
• Nobin Chandra Dey v. Secretary of State for India [ii]
• This doctrine of immunity, for acts done in the exercise of sovereign functions,
was applied by the Calcutta High Court in Nobin Chander Dey v. Secretary of
State. The plaintiff in this case contended that the Government had made a
contract with him for the issue of a licence for the sale of ganja and had
committed breach of the contract. The High Court held that upon the evidence,
no breach of contract had been proved. Secondly even if there was a contract,
the act had been done in exercise of sovereign power and was thus not
actionable.

Post Constitution Judicial Decisions
• State of Rajasthan v. Vidyawati [iv]
• The respondents filed a suit for the damages made by an employee of
a State and the case questioned whether the State was liable for the
tortious act of its servant – The Court held that the liability of the
State in respect of the tortious act by its servant within the scope of
his employment and functioning as such was similar to that of any
other employer.
• It was held in this case that the State should be as much liable for tort
in respect of tortuous acts committed by its servant within the scope
of his employment and functioning as such, as any other employer.

Continue State of Rajasthan v. Vidyawati
• The facts of this case may shortly be stated as follows. In that case, the claim for
damages was made by the dependants of a person who died in an accident
caused by the negligence of the driver of a jeep maintained by the Government
for official use of the Collector of Udaipur while it was being brought back from
the workshop after repairs. The Rajasthan High Court took the view-that the
State was liable, for the State is in no better position in so far as it supplies cars
and keeps drivers for its Civil Service. In the said case the Hon’ble Supreme Court
has held as under:
• “Act done in the course of employment but not in connection with sovereign
powers of the State, State like any other employer is vicariously liable.”

Kasturi Lal v. State of U.P.
• The ruling in this case was given holding that the act, which gave rise to the present claim
for damages, has been committed by the employee of the respondent during the course
of its employment. Also, that employment belonged to a category of sovereign power.
This removed any liability on the part of the state. In this case, the plaintiff had been
arrested by the police officers on a suspicion of possessing stolen property. Upon
investigation, a large quantity of gold was found and was seized under the provisions of
the Code of Criminal Procedure. Ultimately, he was released, but the gold was not
returned, as the Head Constable in charge of the maalkhana, where the said gold had
been stored, had absconded with the gold. The plaintiff thereupon brought a suit against
the State of UP for the return of the gold or alternatively, for damages for the loss caused
to him. It was found by the courts below, that the concerned police officers had failed to
take the requisite care of the gold seized from the plaintiff, as provided by the UP Police
Regulations. The trial court decreed the suit, but the decree was reversed on appeal by
the High Court. When the matter was taken to the Supreme Court, the court found, on an
appreciation of the relevant evidence, that the police officers were negligent in dealing
with the plaintiff’s property and also,

• that they had not complied with the provisions of the UP Police Regulations.
However, the Supreme Court rejected the plaintiff’s claim, on the ground that
“the act of negligence was committed by the police officers while dealing with
the property of Ralia Ram, which they had seized in exercise of their statutory
powers. The power to arrest a person, to search him and to seize property found
with him, are powers conferred on the specified officers by statute and they are
powers which can be properly categorized as sovereign powers. Hence the basis
of the judgment in Kasturi Lal was two-fold – The act was done in the purported
exercise of a statutory power. Secondly, the act was done in the exercise of a
sovereign function.

The Doctrine of Promissory Estoppel and Government contract
• 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:
1. The State makes the promise within the ambit of law.
2. There is an intention to enter into a legal relationship.
3. The other party must do an act in furtherance of that promise or is
forbidden to do anything.

Motilal Padampat Sugar Mills v. State of U.P.
• The case of Motilal Padampat Sugar Mills v. State of U.P. is a trendsetter
regarding the application of the doctrine of promissory estoppel against
the Government. In this case the Chief Secretary of the Government gave a
categorical assurance that total exemption from sales tax would be given
for three years to all new industrial units in order them to establish
themselves firmly. Acting on this assurance the appellant sugar mills set up
a hydrogenation plant by raising a huge loan. Subsequently, the
Government changed its policy and announced that sales tax exemption
will be given at varying rates over three years. The appellant contended
that they set up the plant and raised huge loans only due to the assurance
given by the Government. The Supreme Court held that the Government
was bound by its promise and was liable to exempt the appellants from
sales tax for a period of three years commencing from the date of
production.

• In Mulamchand v. State of Madhya Pradesh, the Supreme Court did
not apply estoppel against the Government in cases of contracts not
entered into in accordance with the form prescribed in Article 299 of
the Constitution. The court held that if the estoppel is allowed it
would mean the repeal of an important constitutional provision,
intended for the protection of the general public.

Ombudsman
• The world has been facing the problem of corruption and maladministration and
the effects of corruption can be seen on the social, political and economic
conditions of . mainly the common people are victim of administrative and
political corruption. For the redress of grievances and removal of corruption,
common man has to rely and depend upon the bureaucracy which itself is the
enemy complained against.
• The growth of the welfare State had also made new protection for bureaucratic
mistakes and abuses of power. The strong voice was raised for the establishment
of machinery which can redress grievance of people against administration.
During the past few decades, countries have adopted different devices and
procedures to impose administrative accountability on the public servan

Meaning of Ombudsman
• According to the Swedish English dictionary by U.R. Reuter, the term
Ombudsmen means Solicitor. In Swedish Public Law, however, Ombudsmen
or Justitie
• Ombudsmen means an appointee of the Parliament of Sweden for the
supervision of administration. According to Danish English Dictionary by
Madsen and Viterherge. Ombud means public duty. Finnish name for
Ombudsman is often translated as Solicitor General or Solicitor of the
Diet.7
• In all countries where the Ombudsman is in position. he is considered as an
officer of Parliament whose duty is to confirm that civil servants carry out
their duties in accordance to the law and if civil servants are not performing
their duties. Ombudsman can make recommendation to competent
authority to institute proceedings against them.

• The institution of OmbudOmbudsmen in other countries
• smen took over a century to spread to other countries. Finland in
1919. Denmark in 1955, West Germany in 1957, and Norway in 1961.
A little changed version of the Ombudsman that is the office of the
Parliamentary Commissioner was established in New Zealand in 1962
and in the United Kingdom in 1967. The New Zealand Statute
provided the model for the establishment of Ombudsman in
Australia, Western Australia appointed an Ombudsman in 1971.
South Australia in 1972, Victoria in 1973, Queensland in 1974, and
New South Wales in 1975. Developments in United States began two
years earlier than in Australia. 11awaii was the first State to set up an
Ombudsman in 1969,

Different names of Ombudsman
• Countries which have adopted the Ombudsman office used different names to
represent it for example;
• Defensor Del Pueblo is the title of the Ombudsman office in a number of Spanish-
speaking countries (Spain, Peru, Colombia and Argentina).
• Parliamentary Commissioner for Administration (United Kingdom, Sri Lanka),
• Provedor De Justica (Portugal).
• Difensore Civico (Italy).
• Protecteur Du Citoyen (Quebec).
• Mediateur De I.a Republique ( France. Gabon, Senegal, Mauritania),
• Public Protector (South Africa),
• Volksanwaltschaft (Austria),
• Public Complaints Commission (Nigeria),
• Investigator-General (Zambia).
• Citizen's Aide (Iowa),
• Wafaqi Mohtasib (Pakistan). and
• Lokayukta (India) these are the names of some of the other Ombudsman offices around
the world.

Ombudsman in India
• Timeline of efforts to establish Lokpal in India
• 1963 The idea of an ombudsman first came up in parliament during a discussion on
budget allocation for the Law Ministry.
• 1966 The First ARC recommended the setting up of two independent authorities- at the
central and state level, to look into complaints against public functionaries, including
MPs.
• 968 - 2011 The Lokpal Bill was introduced in parliament 8 times but was not passed
• 2002 The Commission to Review the Working of the Constitution (headed by Shri M.N.
Venkatachiliah) recommended the appointment of the Lokpal and Lokayukta; also
recommended that the PM be kept out of the ambit of the authority.
• 005 The second ARC (chaired by Shri Veerappa Moily) recommended that office of
Lokpal be established without delay.
• 2011 Again introduced Lokpal Bill in Lok Sabha but could not be passed in Rajya Sabha.
At the same time Annna Hazare under a social activist group called ‘India Against
Corruption’ heavily campaigned to get the Bill passed and also prepared a model Bill
under the title ‘Jan Lokpal Bill’.

The Lokpal and Lokayukta Act 2013
• The Lokpal and Lokayukta Act, 2013 seeks to provide for the
establishment of Lokpal for the Union and Lokayukta for States to
inquire into allegations of corruption against certain public
functionaries and for related matters. The act extends to whole of
India, including Jammu & Kashmir and is applicable to “public
servants” within and outside India. The act mandates for creation of
• Lokpal for Union
• Lokayukta for states

Composition of Lokpal
• The institution of Lokpal is a statutory body without any
constitutional backing. Lokpal is a multimember body, made up of
one chairperson and maximum of 8 members. Who can become the
Chairperson? The person who is to be appointed as the chairperson
of the Lokpal should be either of the following: Either the former
Chief Justice of India Or the former Judge of Supreme Court Or an
eminent person with impeccable integrity and outstanding ability,
having special knowledge and expertise of minimum 25 years in the
matters relating to anti-corruption policy, public administration,
vigilance,including insurance and banking, law and management

Who cannot become the chairperson?
• The following persons cannot become chairperson of Lokpal:
• MPs and MLAs
• Persons convicted of any offense involving moral turpitude
• Less than 45 years of age
• Members of Panchayats or Municipality
• A person who was removed or dismissed from the public service
• A person who holds any office of trust / profit; if so, he would need to
resign from Lokpal
• A person who is affiliated to a political party

Commission of Inquiry
• An Act to provide for the appointment of Commissions of Inquiry and for vesting
such Commissions with certain powers.
• Commission of Inquiry is a Union or State government ordered public inquiry
either by executive notice or by making ad hoc legislation.[1][2]
• In some cases the judicial courts have intervened and appointed commissioners
to inquire into matters of public interest.[1][3]

Appointment of commission
• The appropriate Government may, if it is of opinion that it is necessary so
to do, and shall, if a resolution in this behalf is passed by 2 [each House of
Parliament or, as the case may be, the Legislature of the State], by
notification in the Official Gazette, appoint a Commission of Inquiry for the
purpose of making an inquiry into any definite matter of public importance
and performing such functions and within such time as may be specified in
the notification, and the Commission so appointed shall make the inquiry
and perform the functions accordingly
• The Commission may consist of one or more members appointed by the
appropriate Government, and where the Commission consists of more
than one member, one of them may be appointed as the Chairman thereof.

Powers of Commission
• .—The Commission shall have the powers of a civil court, while trying a suit
under the Code of Civil Procedure, 1908 (5 of 1908), in respect of the
following matters, namely:—
• (a) 5 [summoning and enforcing the attendance of any person from any
part of India] and examining him on oath;
• (b) requiring the discovery and production of any document;
• (c) receiving evidence on affidavits;
• (d) requisitioning any public record or copy thereof from any court or
office;
• (e) issuing commissions for the examination of witnesses or documents;
• (f) any other matter which may be prescribed

• Power of Commission to utilise the services of certain officers and
investigation agencies for conducting investigation pertaining to
inquiry

References
• J.J.R. Upadhyay “Administrative Law”

Administrative law @ Dal Candra

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