RICHTERLICH ACADEMY (JUNIOR CIVIL JUDGE, APP, TSAPP. CLAT, TSPGLCET, TS LAWCET, UPSC LAW OPTIONAL) ADMINISTRATIVE LAW WRITTEN BY ROMANA ( BA.LLB, LLM, P6D) A Small Introduction of Administrative Law Administrative law is an often-misunderstood subject. As the nj Administrative Law deals with the structure, powers and func} of administration, the limits on their powers, the metho’ ‘aii oe ‘method by which followed by them in exercising their powers and functiGins, th their powers are controlled. Administrative law, also known as regulatony"faw, is created and enforced by . some type of administrative governmetifbody from whom the law derives its ee power to set and enforce regulation depends on whether the agency is executive. It applies to allgatligas feials and public agencies. &2. mer An Administrative Goyémment body may act through rulemaking, adjudication, or by onforcing Seite regulatory agenda. Administrative law is technically considered. enth of public law. Administrative law is that body of law which applies. oa detaliéa rules of procedure. fox _fftarings before quasi-judicial bodies, boards, commissions or tribunals supplement the rules of natural justice with their own As distinguished from legislative and judicial authority, administrative authority entails the power to issue rules and regulations based on statutes, grant licenses and permits to facilitate the conduct of government business, initiateinvestigations of and provide remedies for complaints or problems, and issue orders directing parties to conform to governing statutes or rules. The two basic principles of administrative law are "audi alteram partem" (no person shall be condemned, punished or have any property right deprived, unheard) and "nemo judex in parte sua" (no person can judge a case in which he or she is party or in which he/she has an interest). ‘The main reason for the development of admi expansion of the administrative apparatus, functionsandi powers of the government. This was primarily due to the effect of Ae! Faire era which was prevalent in the 9th Century, When extensive es are conferred on the administration, it becomes necessary to ovat Silitable control mechanism over the powers upholded by the administtation> ‘The expansion inthe administrate’ spaders creates the spectacle of misuse and abuse of power. Therefor, be Felton and control of the administrative powers, Aciinseivg gan to grow. LY It is important fo Bonsider two vital factors in dealing with administrative agencies: ies and regulations are often special for each agency and are not wl y.fSnd in the statutes but in those regulations; 2) a member of the ist “exhaust his/her administrative remedies" (take every step, including appeals) with the agency and its system before he/she can challenge the administrative ruling with a lawsuit in court. ‘An administrative-law judge is a government official with quasi powers, including the authority to conduct hearings, makes findings of fact, and recommend resolution of disputes concerning the agency's actions.DOCTRINE OF RES JUDICATA Basically, the Doctrine of Res Judicata is applicable to the Code of Civil Procedure, © But, at times, in many other statutes there is a use of the doctrine. © As we know that the work or the role played by the Administrative Law is that of a watchdog. ol : © The Administrative Law sees that there is no use of power s(hich has a malicious intention. oS © The Administrative Law is there to see that there ee in the society without any hurdlés and the me jonperforms its duty in an honest manner. ¥ © The parties can file another suit in ste Cie to harass and malign the reputation of the opposite .pariig6r” ean do. so for receiving compensation twice from the differ oon © Therefore, just to prevent set g gveiloads and extra cases in the court's kitty, Res Judicata holds a bigtresponsibility and importance. 5 R®Itidi€ata as a concept in between Administrative ae Law and the ofa. © In Administrativel been et taken from Code of Civil Procedure °P, prying the civil courts of India. aw, the doctrine works as a working principle and has C3) as we have discussed above, Section 11 has a big role to be Oe in Intemational Law which is applicable in The International Court of Justice, there too Section 38 (1) (c) is dedicated towards the doctrine of Res Judicata, © The doctrine of Res Judicata in nations that have a civil law legal system is much narrower in scope than in common law nations.© According to the dictionary meaning, 'Res Judicata’ means a case or suit involving a particular issue between two or more parties already decided by a court. T @ hereafter, if cither of the parties approaches the same court for the adjudication of the same issue, the suit will be struck by the law of 'res judicata’. © Section 11 of Code of Civil Procedure deals with this concept, © It embodies the doctrine of Res Judicata or the rule of eongifeness of a judgement, as to the points decided either of fact, onfftay> Por of fact ie and law, in every subsequent suit between the same: It enacts that once a matter is finally decided Spetireen court; no party can be permitted to reopen it in a subsec eaueptl itigation. @ In the absence of such a rule there widen end to litigation and the parties would be put to constant trolible, Wrassment and expenses. ‘The doctrine of Res Judicata is béged.on three Roman maxims: Qa cade causa which means that no man should (a) Nemo debet lis vaxari.pro. os be vexed (annoyed) twice forthe same cause; , > ,) ic ut sit finis litium meaning thereby that it is in the hat there should be an end to a litigation; and 1) There must be a final judgment; 2) The judgment must be on the merits; 3) The claims must be the same in the first and second suits;4) The parties in the second action must be the same as those in the first, or have been represented by a party to the prior action. © The provisions of Section 11 are not at all exhaustive even though it has very wide and enlarged amplitude. © The section "does not affect the jurisdiction of the Court" but "operates as a par to the trial" of the suit or issue, if the matter inthe suit was directly and substantially in issue (and finally decided) in the between the same parties litigating under the same title,j they are not competent i.e. an Q ‘which such issue has been raised. Thus, this doctrine of Res Judicata is,a Kans concept based on © they become barred to try the subsequent suit public policy and private interest. © It is conceived in the larger pate ee litigation must come to an erid. y Suits, execution proceedings, arbitration interest, which requires that every > © It therefore applies om proceedings, ‘axagi6p 28 “Raters, writ petitions, administrative orders, interim cap proceedings, etc. i o An ordinals suit age the applicability of section 11 of C.P.C. er. © adit ig andatory except on the ground of fraud or collusion as the case fon being a party or claiming under a party of a former “Tite onus of proof lies on the party relying on the theory of Res Judicata. © The provisions of section 1] of C.P.C. are "not directory but mandatory” The judgement in a former suit can be avoided only by taking recourse to section 44 of the Indian Evidence Act on the ground of fraud or collusion.@ Hon'ble Mr. Justice Das Gupta in Satyadhan Ghosal v. Deorajan Deb said that ‘the principle of Res Judicata is based on the need of giving finality to the judicial decisions’. OMBUDSMAN ‘An Ombudsman in administrative law is an independent official or, body appointed by the government to oversee and investigate comp] int and grievances against administrative actions and decisions made by;govémment agencies, departments or public officials. ‘The primary purpose of an Ombudsman in administrative law is to ensure transparency, faimess, accountability and adherence 16’ iégal and procedural standards within the administrative processes of faggferament. er. The Ombudsman’s job is ° to examine the complaints made ey. ‘itizens when they believe that a This official is often referred to as a grieyanct government agency is not aoigal properly. In simple terms, if the government isn’t doing things Te sake citizens can report their concerns to this official, who works for ge nent but is independent and impartial. xe The idea of an OfMbudsifan first started in Sweden over two hundred years ago in 1809. As ntieth century began, other European countries began to take © One of the key roles of an Ombudsman is to safeguard the rights and freedoms of citizens. The establishment of the Ombudsman position primarily serves this purpose. © In Scandinavian countries, the Ombudsman has an additional responsibility: supervising the general civil administration. This dutyclosely ties the Ombudsman’s role to the oversight of public administration, © Many states, including some institutions similar to the Ombudsman, engage in the general supervision of government functions. This oversight is often referred to as monitoring the government's performance. In certain countries, the Ombudsman wield significant authst i For iette cases of corruption, in any form, not only involving oan but instance, in Sweden, the Ombudsman is empowered to ine also judges of the highest court. © In the United Kingdom, the Parliamentary Gamat sioner, a British version of the Ombudsman, also serves 6 @ Health Commissioner. In 1974, the British parliament passed a lato.eXpand the jurisdiction of the Parliamentary Commissioner to Soyer Yocal government matters. This allows local councillors to gree plaints against local authorities. and seek resolution for their grieytnad. ¢ Ombudsman in ii, re The success of Go budsman functions in other countries served as AS of Lokpal and Lokayuktas in India. Lokpal funotons 06 in Ombudsman at the national level, while Lokayuktas serve as § Seisfombudsman, Fitea®f setting up an Ombudsman in India was first proposed by M.C. SetalVad at the All India Lawyers’ Conference in 1962. inspiration for In 1968, the Administrative Reforms Committee presented a proposal to the Government regarding the establishment of an Ombudsman, However, it wasn’t until 1971 that a bill was introduced for this purpose, but it ultimately did not pass.Lokpal in India, established under the Lokpal Act of 2013, serves as a national anti-corruption ombudsman. Its role is to investigate complaints against public servants defined by the Lokpal Act, with the aim of combating corruption in India. Salient features of The Lokpal and Lokayuktas Act, 2013 The Lokpal and Lokayuktas Act, 2013 established the Loky the national level, which has the authority to investigate meer involving Members of Parliament and central governmerff employees. © Lokayuktas, on the other hand, operate at the «€ “yan perform similar functions. Both the Lokpal and Lokayuktas handle oof charges against public officials, including the Prime Ministebu With certain safeguards in place. They conduct investigations‘and trials based on their findings. @ The Act allows for the creation Lbkayuktas in each state with their respective powers, atthout des t clearly define the extent of these powers. pot This has vagy genom in the powers of Lokayuktas across different ak impleme kayuktas consistently across all Indian states. dy’ ring uniformity, there has been a proposal to @ The, AS Ss ere that all states establish the office of the Lokpal antioy Pokayukta within one year from the commencement of the Act, okpal consists of a chairperson and a maximum of eight members. “Gwalt of the members are judicial and the other half are from SC/ST/OBCs, minorities and women. © Under the newly enacted Lokpal Act, corruptly acquired properties of government officials can ‘be confiscated and attached even while proceedings against them are ongoing.The Act requires all public officials to disclose their assets and liabilities as well as those of their dependents. © It also provides protection for government officials who act as whistleblowers and an accompanying WhistleBlowers Protection Act has been enacted to support this aspect. % > Sir Ivor Jonning defines Administrative Laweas the/Law relating to We administration. @ “er > It determines the organization, Powe, dhities of administrative authorities. e > According to Dr. FJ. Port-“Adfainist tive law is made up of all these legal rules either formally{exptessed by statute or implied in the prerogative-which have e LS ultimate object the fulfillment of public law. Cay > It touches firs{ve Tuislature, in that the formally expressed rules are rn the practical application of Law.” The Administrative law deals with composition and powers of different organs of administration, the procedure with which the administrative authorities shall adopt in the exercise of their powers and the various modes of control including particularly judicial control over the different kinds of powers exercised by the administrative authorities.> In short the administrative law deals with the powers, particularly quasi-judicial and quasi-legislative, of administrative authorities along with their executive powers and their control. Nature and Scope of Administrative Law- Nature - Administrative law is study of multifarious powers of administrative authorities and the nature of their power can be studies under the following three heads 4 of their power) 1. Legislative or Rule-Making 2. Judicial or Adjudicative 3. Purely Executive. . ee ~ Freiedmann, while dealing with the natur6jand Scope of Administrative law says that Administrative law includes the/taw felating to- @ statute; (ii) The adminis under a vast mday oftstatutes; (v) The power of the ordinary courts of supervise the administrative authorities Scope — The province of Administrative law consists of the following¢ Existence of various administrative bodies- such as, Wage-board, Central Board of Revenue, Commission of Inquiry and Advisory Boards, Tariff Commission, etc Rule making power of administrative agencies- ie. delegated legislation; safeguard against abuse of power and judicial control Judicial functions of administrative agencies like Admini: tribunalsi.c., claims Tribunals Industrial Tribunal, the h Appellate Tribunal performing judicial functions > Se ae Remedies- Various remedies like writs of Mandi “ertiorari, Prohibition etc., injunction, declaration etc. arecav to prevent ee excess any abuse of power. a, Ye on Procedural guarantees- The concept otra urn include the rules of nature justice Rae © Government Liability- The Unién and State Governments are liable under torts as well as controlsfor the Wrongs committed by their servant and agents oO Public Corporation, If i i corporation > Y Growth of Adi istaive law in India- > ides liability ad legal responsibility of public ‘stem of both administrative legislation and adjudication were ‘heekistence from very early time. ‘But in early British India, the executive had the overriding powers in the matter of administration of justice. > During the British rule in India, the executive was invested with such wide powers to make rules as a modern democratic legislature cannot even imagine. > In that period though the court had ample powers to set aside an administrative action, yet paid great respect and attention to theirdecisions. Judicial relief was available only when the administrative remedies were exhausted. > The Law Commission in its X¥ Vth Report has traced the reasons for the growth of administrative law in the following words- “Society in the 20th century has become exceedingly complex and governmental functions have multiplied. a > The change i in the scope and character of the Government on 1, Constitution 2. Statutes bOocT! Doctrine of Separation traced to Aristotle. ii) Judiciary = to interpret the law iii) Legislature = to make the law Separation of power means all this three organs should not interfere in the working of each other.According to Wade and Phillips the theory of separation of powers signifies the following three different things; | 1. That the same person should not form part of more than one of the | three organs of the government; 2. That one organ of the government should not interfere with any i other organ of the government. 3. That one organ of the government should not exercise thé assigned to any other organ. Doctrine of Separation in India- background. ~ # The doctrine of separation of powets fas also not been accorded a constitutional status. ae > . In the constituent Assen, Prof, K. T. Shah, who was a member of the Constituggt A¥Sgmbly made a proposal to incorporate the oe ete doctrine of Article 123 (Ordinance), 240 (Peace), 357 (Machinery Failure) of COL iii) Administrative Power > Executive Head Modern View- © But pow the trend of the Supreme Gourt regarding the doctrine of x separation of powers has been c o @ Inthe historic case Kesavanal arati Vs. State of Kerala, 1973 the Court changed its view®aitdeteld that both the supremacy of the constitution and sepatatig ee the Indian Con: lof powers are parts of the basis structure of e* sefaraton of Power Principles of ° exgantl eile, judiciary should be independent of each other. of "ond brgan should perform function that belongs to other. No" SR CaseLaws 1, Delhi Laws Act, 1951 2. Rama Javaya Vs. State of Punjab, 1955 3. Rambkrishna Dalmiya Vs. Justice Tendulkar, 1959 4, Indira Gandhi Vs. Rajnarayan Singh, 1973RULE OF LAW Rule of Law- © The term “The Rule of Law” is derived from the Latin phrase “La legality”, which refers to a government based on principles of law and not of man. ° ¢ Edward Coke originated this concept when he said that ~ cc. be under God and Law and thus vindicated the menace over the pretensions of the executive. Rule of Law according to Dicey 1. Supremacy of Law 2. Equality before law 3. Law as a result of Human Rig NG Y P of Law have been criticized by the modern oe writers. AX. © Itis obs it Dicey misconceived the administrative law in France, . mugs “the realities in England and misinterpreted the situation in cism of Dicey’s View © Dicey’s ves on Rt ‘Was also not right when he saw that there is no administrative law in ‘England because even during his time Crown and its servants enjoyed special privileges on the parts of the doctrine that “King can do not wrong.” © Later on Dicey recognized his mistake by observing that there exists in England a vast body of administrative law.Rule of Law in India- (1) In Kesavananda Bharati Vs State of Kerala, the view was that the Rule of Law is a basic intent of the ‘Constitution apart from democracy. (2) In Indra Gandhi Vs RAJ Narain. Mathew. J observed: ‘The rul of law postulates the pervasiveness of the spirit of law that throughout the whole ‘inge i 1p Seon in the of government is the sense of excluding arbitrary offic sphere..... The provisions of the Constitution were emai aa view to ensure the rule of law. r AY Modern concept of Rule of Law is formulated Wf International Commission of Jurists Cy & @ The concept of Rule of Law formulated by International Commission of . es ics Jurists may be regarded as ifiodert concept because it is in consonance with the need of Rule of Lawein a modem welfare society. 6kndWvi a6 Delhi Declaration 1959. It was later on 1961. , This concept is confirmed as 1 © The compo {vided itself into certain working committees. wh > o% Conclusion®he above discussion clearly shows that the recent judgments of the Highest, Court of India as well as High Courts exhibit a new approach to the cotfeptcg tule of law by emphasizing the fair play and justice in every walk of administrative action and access to judicial remedies for all including socially and economically weaker sections of the society.DELEGATED LEGISLATION. Delegated Legislation- Austin says, “There can be no law without a legislative act.” But when the Legislature, under the pressure of work delegates the legislative power, it results in delegated legislation. ‘Delegate legislation’ is used in two senses. © In one sense delegated legislation means the exercise of thé power of < rule making, delegated to the executive by the legislature? we ‘that power, viz, In the second sense, it means the output of the crergpe 3 rule, regulations, orders, ordinaricés etc, ) - ad © The expression is used were in both senses 7 4 ‘© Where the emphasis is on the limits of constitutionality of exercise of such power, the term is used in the, first’; ei8e : where the emphasis is on the output of the concrete rules the erin is employed in the second sense. O In sample words, delegate esigation refers to all law making by the authorities other thane legislature i.e., the Central Government, the State GovernmentyCentral’B. bodies and ig pe expressed as statutory rules and orders, law tral Board of Revenue and the other administrative g is, scheme directions or notifications etc. QPS Nature, and Seope of Delegated Legislation p Noy) day, the Parliament passes only a skeleton and the rest of the parts is left on ihe administrative agencies to provide through the mle making power delegated to them. For example the Import and Export (Control) Act, 1947 contains only eight sections and delegates the whole power to the administrative agency to regulate to the whole mechanism of import and exports.Extent of Delegated Legislature Powers- ‘An executive authority can be authorized to modify either existing or future laws but not in any essential feature, while exerting its delegated legislative powers. Exactly, what constitutes an essential feature cannot be enunciated in general terms. But this much is clear that it cannot include a change of policy. When a Legislature is given plenary powers to legislate on a particular § Subject there must also be an implied power to make law incidental to the Gee of such power. It is a fundamental principle of constitutional laystha everything necessary to the exercise of a power in include in the srt afin poves The primary’ duty of law-making has to be discharged by, thedlegislate itself, but oar. delegation may be restored to as a subsidiary on ananell ng ‘measure. Growth History of Delegated Legislation- % %, ¥ nibh, Was repealed in 1547 was perhaps the cig by a Parliament. Under it cae VIL ‘The Statute of proclamation, 1539 most striking piece of legislation ¢ Commissioner of safe. “Wwho was empowered to make drainage scheme and levy rates on ve, technique whichis Parliament has always felt able to use ee the realm of delegation and such were the rare instances and it fers. These were outstanding early examples of a But wais s0 aS realm’of delegation. As Maitland says, “The period before 16th century was the -sihitil eighteenth century that we have significant development in the period of private laws a period when Parliament legislated in such detail that many of its measures would today be matters of administrative instructions.” The growth of modern delegated legislation is usually dated from 1834, when the Poor Law Amendment Act gave to the Poor Law Commissioner, who had no responsibility to Parliament, “power to make rules orders for themanagement of the Poor.” This power which lasted for a century remained a leading example of delegation which put, not merely execution but also the formulation of policy into executive hands. But this was a small instance of experiment in bureaucratic Government. It did not invoke any criticism until later part in the century. The publication of all delegated legislation in uniform series under the ttle of Statutory Rules and Orders began in 1890 and in 1895 the Rules Publication Act made provisions of systematic printing, ligation and public notice. In 1891, for instance, the Statutory Rules andjQrdets were more than twice as extensive as the statute enacted by os Reng nt. Laisse faise state of 19th century had given. place to social welfare Rute of the First World War Defence of the Realm Act, 1914. Social progress after 1942 complete separation offeaSe's was not possible, act, 123 Art. 240. Art, 357. Art. 143. ‘Types of Delegated Legistation-,0n o “basis of the nature of Delegated Legislation the Committee on Mi iste's powers distinguished the following two types of mene 1. Noncat Dela S a execptionstcenon fion &S > i 6 oy %o_J SUB ORD) NATE LEGISLATIONS we In subordinate legislation the process consists of discretionary elaboration of rules and regulations. In England the power of the Parliament are supreme as such all the legislation other than those made by British Parliament are recognized as subotdinate. Subordinate legislation has its origin in the delegation of the power of Parliament to inferior authorities and are subject to control of the sovereign legislation.‘Types of Subordinate Legislation ( Colonial Legislation- The legislation by the self government bodies like colonies and other dependence of the Crown are regarded as colonial Jegislation. The legislative powers of such bodies are subject to the control of the Imperial Legislation. 4 (ii) Exceutive- Though the main function of the Executive is to administer, but e it has been provided with certain subordinate legislative power have been expressly delegated to it by Parliament, or pertained to rye Common Law Statute. (iii) Municipal- Municipal authorities are entrust ¢ law with limited and subordinate powers of establishing special % pions under their control. powers. The higher courts. n oho oe w Autonomous{Thotigh the great bulk of enacted laws is promulgated by the > State; the autofmotis bodies have been entrusted with a power to make bye- unger its¥egulation. AD. MINISTRATIVE TRIBUNALS © Administrative ‘Tribunals are agencies created by specific enactments to adjudicate upon controversies that may arise in the course of the implementation of the substantive provisions of the relative enactments. © Unlike that of the court which is part of the traditional judicial system of a country, the jurisdiction of administrative tribunal is not general.© But specifically, the courts, known to Anglo-saxon jurisprudence would entertain suits, ranging for a simple claim for recovery of debt to complicated issues of law and facts, but excluding the vires of legislation. © Administrative Tribunals are solely quasi-judicial functions. @ It should be noted that an administrative body will be administrative tribunal only when that body is constituted by the state and is vested with some judicial powers of the state. © The tribunals are generally given the power of a civil Sue able under the code of Civil Procedure in the matters of sux nine witness, compulsory production and discovery and sony. receiving of evidence on oath and on affidavit, issuing commis Etc. Characteristics of Administrative tribunals, 5” The following are the characteristics of {Sginstative tribunals: wt Geecpive under the provisions of statute. Ve jes act judicially, they perform quasi-judicial (i) That they are established by the (ii) That though they me functions. i) That they ~ ibn and imperial and work without being influenced y by the Gov ge Gi) Th Gs have the powers of Civil Courts in certain matters and their are considered to be judicial proceedings. (iii) That they are required to follow the principles of natural justice in deceiving the cases. (iv) That they are not bound to follow the technical rules of the procedure and evidence prescribed by the civil procedure Code and Evidence-Act.(v) That they are not courts in the proper sense of terms. Difference between Administrative Tribunal and Court © ‘The main distinction between the court and an administrative tribunal lies in the law policy distinction, @ Because the court first ascertains facts and applies law to these fast as such the fimction or a judge is like as solt machine- controlled fact finding and controlled application of law. et © On the other hand, an Administrative Tribunal proceedsfWith controlled site, Ved fact finding and an uncontrolled application policy. €y a © Secondly, there is no uniform procedure Wii the administrative tribunals are required to follow exerci ineflagicry powers, whereas ‘ 35 procedure, Thirdly, the creas Administrative Tribunals the Courts follows a uniform, fixed @ Court exercises only judicial functions undertake various other admis ‘functions. ‘ourt. All Courts are tribunals but all © Fourthly, tribunal is widen, tribunals are not coupe Reason for devs opment Administrative Tribunal () The _foved *. adopted by the Court is very technical and the approaches of & 2) Steondly, litigation before a Courts of Law is time consuming & costly. (3) Thirdly, the administrative adjudicatory system came into existence with intent to carry out of the modem governmental plans of public health, education, planning, social security, transport, agriculture, industrialization andnational assistance and to provide a system of adjudication which was informal, flexible, cheap and rapid Growth in India The necessities of modern collectivist socialist state economic programme of the state covering all the aspects of human life, delay in civil proceedings, in the technicality of disputes and growing demand of justice and economic seulled in vas proliferation of powers of administration, regulating wa in iP S c multifarious way which ultimately resulted in the growtho? innumerable quasi-judicial bodies. These tribunals are established Pre atoough its members are appointed by the Government, It decides action was takeif without given him an opportunity of being heard. The Court oftappéd dismissed the action and held that the Watch Committee wagnotBouid to follow the principle of natural justice. Sent ae Exception to the Rule of Audi Alteram Partem ‘Under the following circumstances the application of the rule of Audi alteram Partem may be excluded wholly or partly- (i) Where the functions of an authority concerned have been held not to be Judicial.(ii) Where the function of an authority have been held to be policy oriented. (iii)Where prompt action, preventive or remedial is needed due to emergency situations. (iv)Where the power exercised is disciplinary one, the rule audi alteram Partem does not apply. Where the process of fair hearing would be prejudicial to public int alteram partem is excluded. Such situation may cover the cases of state secrets. Case-I In R. Radha Krishna Vs. Osmania University, the (niveysity cancelled the whole M. B. A. entrance examination because of fy.cbpying. The decision of the university was challenged on the groundthat the candidates were not given a hearing. It was held that notice andsheating to all candidates is not possible in this kind of action which is takéiy adsdts % -disciplinary measures to solve a problem Sf CONSTITU' [AL REMEDIES 1) Consti < available against an Administrative action- Article 32,4136, 226 and 227 of Indian constitution provide strong powers to the Courts to cOusrol the administrative authorities if they exceed their limit to do what they should do, omit or abuse the powers given to them, Art, 32 and 226 of the constitution provide remedies by way of writs. Under Article 32 (2) the Supreme Court of India is empowered to issue appropriate directions or orders or writs, including writs in the nature of habeas corpus, certiorari, mandamus, prohibition and quo-warranto which may be appropriate.The five writs specifically mentioned in Article 32 (2) are known as prerogative writs in English law Article 32- Article 32 provides a “guaranteed” remedy for the enforcement of those rights, and this remedial right is itself made a fundamental right by being included in Part 11. Where there is no question of the enforcement of a fundamental vight, Antigle 32 prtiele has no application. > Article 136- Under Article 136 of the constitutio th Soe co Court is mandamus, prohibition certiorari cng ato for the enforcement of any of the rights conferred by Part If eros or for any other purpose. © ‘Habeas corpus is a Jatin term and it developed out of the prerogative writ of ad subjiciendum which literally means to have the body” and by which the people could secure their release from illegal. © The writ can be issued on the application either- (a) Of the prisoner himself, or (b) Of any person on his behalf, or (c) Where the prisonercannot act, then on the application of any person who believes him to be | unlawfully imprisoned. \ Who can apply for the writ of Habeas Corpus- © The writ of habeas corpus can be made either by the person detained or any other person provided that he is not an, utter stranger, but is at least a friend or relative of the eee Grounds of the writ of Habeas Corpus- Set aS As stated adore, the writ of habeas corpus is a ap ces By which a (i) The person must be confined; (ii) petition for writ pe Corpus may be filed either by the detenue or any verona is not a stranger but is a friend or relative of the, a angie (v) That the detainer has not applied his mind in passing the order of detention, (vi) That the ground supplied to the detenue was vague and | indefinite. i (vii) That the detention is illegal.(viii) There was a delay in furnishing the ground. (ix) That there was a delay in considering the Representation. (x) That orders of Detention is irregular Refusal of the writ of Habeas Corpus (i) Where the prisoner is detained outside the jurisdiction of wp fan to which the application is made, the court will refuse the gee corpus. Court which is open or which shows jurisdiction on (iii)When the detention is found legal on the se, the court refused to issue the writ of habeas corpus. es Jagannath Hisra and other Vs. state of rise. "Gad? (wyWhere the Court is of th@:gpinién that the order of issuing writ defeat the section nd of the Punjab Security of State act. (ii) When a person in committed to jail custody by a competent court by an order which pria facie not appear to be without jurisdiction or wholly illegal(iii) When all the issue of the fact can be tricks in other proceedings, the writ of habeas corpus will not lic. (iv) Where a person has been convicted by a duly constituted tribunal, a writ of habeas corpus will not lie for questioning the validity of such conviction. (v) Where a person convicted or in execution under legal process including q person in execution of a legal sentence after conviction on indictment | the ‘usual course. 4 SO a ay (vi) Where a person undergoing a sentence of en on him by a competent court, the writ of habeas cofpus will not lig,” (vii) Where the physical restraint is put upon aegis law, no habeas corpus will lie. (viii) Where the petition has been filed4s, seeking others available remedy. © Statutory bar to writ of. nate nus- Article 21 is the sole repository of rights to life and pergoi libetiy against the state ) And Art 22 pi gd right of protection against illegal arrest and detention. Bytthe? President of India can issue a proclamation of cnerene ip “Article 359 of the constitution and suspend fundamental rights, 5 @ In Charanjit Lal Vs. Union of India, it has been that an application for the issue of Article 32 or 226 can only be made by the aggrieved party and not by a stranger. Necessary conditions for the issue of the writ of certiorari- ‘Writ of certiorari is issued when anybody or person-(a) Having legal authority, (b) To determine questions effecting rights or subjects, (c) Having duty to act judicially, either (i) Acts in excess of its legal jurisdiction; or (ii) Commits an error apparent on the face of the record or (iii) Acts in violation of the principles of natural justice. Grounds of writ of Certiorari- includes- (i) Excess of jurisdiction ae n8 i) Absence of. jurisdiétion ey (c) That tefe,had been a violation of prineiples of natural justice. rot GrOunids Of refusal of the writ of certiorari- & ‘The writ of certiorari may be refused on the following grounds: (i) Where alternative remedy not availed. ii) Futile writ-Where the writ is futile, it will be refused.The writ of Prohibition © In the words of Prof. A.T. Markos: “Prohibition is a judicial writ issued from a superior jurisdiction to an ecclesiastical or similar tribunal or an inferior temporal court including under the latter description, administrative authorities having a duty imposed on them to proceed judicially to prevent those tribunal from continuing their proceeding in excess of or abuse oftheir jurisdiction in violation ofthe rulé natural &N ur es fribunal has not made a decision were as the writ of certioray ids sehen the court or justice or in contravention of the laws of the land. The writ of prohibition lies only when the inferior, tribunal has made a decision Grounds for the writ of Prohibition (v) Fraud. xe ge ; s hom the right of Prohibition lies- & The'Writ of Prohibition, like certiorari, lies only against the judicial and quasi judicial authorities. A writ of Prohibition can issue only in a case in which certiorari can be issued. In other words he writ of Prohibition lies against. (@ Judicial authorities; or(ji) Quasi-judicial; or (iii)Statutory body having judicial powers. I f Quo-warra © The quo-warranto proceedings affords judicial enquiry in which any person holding an independent substantive public office, or franchise, or liberty, is called upon to show by what right he holds the said office, om a franchise or liberty. \ @ If the inquiry leads to the finding that the holder of the 3 fed bas not valid title to it, the issue of the writ of quo-warranto oye from the Salog assumption of the office by opps aan ‘of Gito-warranto will not lie- As state above, the writ 6f quo-warranto is discretionary in nature, the petitioner is not necessailV"epttied o the issue of a writ ” The qhowarranto wili not lie in the following cases wit “ ye “writ of quo-warranto will not lie in respect of an office of a private nature. (jiy’ Where there is acquiescence on the part of the petitioner, the writ of quo-warranto will not lic(iii) When the office is abolished, no information in the nature of quo-warranto will lie. (iv) Where it will be vexatious, the High-Court shall in ‘its’ discretion refuse to issue a writ of quowarranto ~Bari Nath Vs. State of U.P.1965. (v) When the application for quo-warranto is a belated one 1964. (vi) The writ of quo-warranto may also be refused if there » le alternative remedy. > 5 é (vii) Where it will be futile: (viii) The writ of quo-warrarfo Si lie in case of mere irregularity JUDICIAL REVIEW go NS Judicial Review in England- Ip Segland the administrative law is concemed with the actual working of the govégnment machinery and the greater part of it has never come before eur er interpretation, eG” After the passin ie Administrative of Justice (Miscellaneous Provisions) Act, 1938, doe&.nottalter the principles of law upon which prerogative writs f Se Judicial Review in India © In India the Courts occupy key positions as regards the judicial control of administrative action. © Our Constitution guarantees certain fundamental rights enumerated in Articles 13 to 35 of the Constitution.These rights provide a limitation on the legislative and executive powers as well as some effective dimensions of control over administrative discretion. © The Constitution of India contains express provisions for judicial review of legislation as to its conformity with the constitution unlike in America where the Supreme Court has assumed extensive powers of reviewing legislative acts under over the widely inter prated “due process/“elduse in a> the Fifth and Fourteenth Amendments. importfapag n © If, when the courts in India face up to such an imporfanan¢ none too casy task, it is not out of any desire to tilt at tegiialiye'Sunority ina aj ibon them by the \ crusder’s spirit but in discharge of a plainly” Constitution. e In India the Judicial Review of ada rative actions falls into three distinct heads- Agaiti where the decisions of administrative bodies are purely of administrative nature, the scope of judicial review is limited but it is not so where the decision of quasi-judicial nature.Judicial review of quasi-judicial action of administrative authorities has become of greater importance for the reason that there has been a tremendous increase of judicial functions of administrative authorities. Exclusion of judicial Review- It should be noted that judicial review of an administrative action may be excluded by legislation. An administrative action cannot be reviewed judicially- (a) Where the statutes provide such administrative act or conclusive; action or decision shall not be liable to be legal proceedingadministrative agencies. The legislature passes a Statute (or law) ‘that empowers an agency 10, create specific rules and regulations within the scope of the law. : : ‘This delegation is often expressed in a "grant of rulemaking authority" © within the enabling statute. : : ae Rulemaking Process: Administrative agencies follow a’ defined ~ ulemaking process to ereate regulations. This process iypicaliy udes public notice, public Comment, and often a formialheaaiea® where interested parties can provide input on proposed nil 3 The agency st considers this feedback before finalizing the regulation: 4 y : Force of Law: Once regulations are promul es mally: adopted), they. carry the force of law and: are binding on those subject to the si agency's jurisdiction, Violating thesePeuultions can “result in’ legal penalties. Interpretation and Iniplgmen ati : “Administrative agencies use aa the broader laws passed by the quasi-I -legislative finetiontig Selop detailed ‘regulations’ that’ are responsive to complex, al, or specialized areas, leveraging the agency's expertise “Schecks and Balances: To maintain a system’ of checks and balances, “there are often mechanisms for judicial review of agency rulemaking. ‘This allows for the evaluation of whether an agency's actions were within the scope ofits delegated authority, followed proper procedures, and were consistent with the law.© The Right to ‘ioe TI) is a fundamental right that allows citizens to access infor eld by public authorities. ol ain law, the right to information is an essential tool for promt sparency, accountability, and good governance. © THE right’to information is recognized as a fundamental right in many ‘ies around the world. It allows citizens to access information held by public authorities, including government agencies, departments, and other public bodies. The right to information is often enshrined in national laws ot constitutions and is seen as a critical tool for holding governments accountable to their citizens.© In administrative lav, the right to information is particularly important in the context of government decision-making. The right to information enables citizens to access information about the reasoning behind government decisions, the processes used to arrive at those decisions, and the data and evidence used to support them. ‘The right to information also allows citizens to hold public authorities accountable for their actions. é © Citizens can use the right to information to monitor thepactii public authorities, ensure that they are complying vith law, and ray eg ‘o expose instances of corruption or maladministratio @ To exercise the right to information, citizens Spically need to make a ce te ‘ge formal request for information to the relevafit public authority. In many countries, there are specific piSbedif& and laws that govern the eee ee . Ve process of making an information feguest ‘These procedures often requite if public authority to respond to the a, 7 7 . request within a specifi’ timeframe and to provide the information requested unless there fa legitimate reason for withholding it. ey. ‘ight to information is limited by national security In some countries, ke >. concerns or gihefexéeptions. are typically narrowly defined and subject to review by These exeepti cous Sindipendent oversight bodies. A: lj the right to information is an essential tool for promoting £% > In administrative law, an injunction is a court order that requires a party to stop or refrain from taking a particular action. > Injunctions are often used in cases where a party is believed to be engaging in conduct that is unlawful, harmfal, or otherwise in violation of the law. 4 > Injunctions can be a powerful tool in administrative law ecargeghe}bcan be used to prevent harm before it occurs. Ses” > For example, an injunction may be used to prevent. & offipany from engaging in activities that could harm the cig public health. Injunctions can also be used to prevent gout “agency from taking actions that violate the rights of citizens.or hat dle otherwise unlawful. > To obtain an injunction in aig, a party typically must demonstrate that they have sates will suffer irreparable harm if the injunction is not granted. > The party must also er any harm that may-bER: hat the harm they will suffer is greater than os i8éd by granting the injunction. > Injunctions nafs’ ted on a temporary or permanent basis. > A temporgi € Siketion, also known as a preliminary injunction, is usuall ed in the early stages of a legal proceeding and is intended to préventitimediate harm while the case is ongoing. | Sone injunction is granted at the end of a legal proceeding and is Sent to permanently prevent the party from engaging in the conduct that was the subject of the injunction. 4 >In administrative law, injunctions are often issued by courts or administrative agencies. > In some cases, injunctions may also be obtained through alternative dispute resolution mechanisms, such as arbitration or mediation.> Injunctions can be a powerful tool in administrative law because they can be used to prevent harm before it occurs. > However, they must be used carefully to ensure that they do not unduly restrict the rights of parties or interfere with legitimate government actions. As such, the decision to grant an injunction in administrative law must be carefully considered and based on a thorough analysis of the facts and the applicable legal principles. Quasi-Judicial function > Quasi-judicial function is a type of decision~ snakigg Big sess performed by administrative agencies or officials that reser sjiidicial functions. > It is called quasi-judicial because it has sofite similarities to the judicial function, but it is not strictly judicial inti > Quasi-judicial functions are pefinged by administrative agencies ot officials when they are calleds pd ‘nake decisions that affect the legal rights or interests of individuals.or organizations. > In performing qysShigaicil functions, administrative agencies or > officials are reguited t follow the principles of natural justice, which include the sightto fair hearing, the right to be heard, and the right to > They. algo follow the rules of evidence and procedure. bbe of quasi-judicial functions can vary widely, depending on the act that establishes the administrative agency or official. > They can range from relatively simple decisions, such as granting or denying a license, to more complex matters, such as disciplinary hearings or adjudicating disputes between parties.Some examples of quasi-judicial functions include: Disciplinary hearings: Administrative agencies or officials may hold disciplinary hearings to determine whether a person has violated a regulation or professional standard and, if so, what sanctions should be imposed. Adjudication of disputes: Administrative agencies or officials may be called upon to resolve disputes between parties, such as disputes over land us rabning, a pew align licensing decisions, such as granting or denying a permit or licente, after considering ee or environmental regulations. Licensing decisions: Administrative agencies or officials, relevant evidence and testimony. ar at sll tribunals may be called upon to determine whether an individual a ales for asylum or refugee status. Immigration and refugee hearings: Admifiiity In performing quasi-judicial funetté ES rsrsive agencies or officials are required to act impartially and to'pyovide a fair and transparent hearing. The decision-making proces: Bebased on the evidence presented and must be eae free from bias or prejtidice. The decision must also be supported by reasons that 2, are based on Ar and the applicable law. In mts Wisi judicial function is type of: decision-making process perforsneds by administrative agencies or officials that’ resembles the judicial ti or organi right to a fair hearing, the right to be heard, and the right to impartiality. The involves the determination of legal rights and interests of individuals ions, and is subject to the principles of natural justice, such as the scope of quasi-judicial functions can vary widely, and they are required to act impartially and to provide a fair and transparent hearing.Doctrine of Proportionality >The doctrine of proportionality is a fundamental principle of administrative law that requires administrative decisions to be proportionate to the objectives that they are intended to achieve. > This principle is commonly used in cases where a public authority takes action that affects an individual's fundamental rights or interests. @, > The principle of proportionality has three main components Guitatiity, he necessity, and proportionality stricto sensu. The suites Eonone requires that the action taken by the public authori a bé capable of achieving the intended objective. % The necessity component requires that thesacton “ken by the public authority must be necessary to achieve. t the nidnded objective and that (Roe there is no less intrusive means of achive that objective. > The proportionality stricto senstycetmponent requires that the benefits of the action taken by the public ¢ auhdrity must outweigh its costs and that the action must be rangi of the overall public interest. > The doctrine of prOpe Borteatity is commonly used in cases involving sdinstrtive sions that restrict fundamental rights, such as freedom es of ororesi assoGiation, and assembly. >In 256 5 s) the court must balance the individual's right against the + ge t8rest that the administrative decision is intended to protect. The ‘ust then determine whether the decision is proportionate to the Cobjective that it secks to achieve. > The doctrine of proportionality is also commonly used in cases involving administrative decisions that affect economic interests, such as decisions relating to competition law, environmental law, and taxation.