Administrative Law - Part I - Slides

Administrative Law – Unit I
Shibam Talukdar
Introduction to Administrative Law
• Administrative law is a body of reasonable limitations and affirmative
action parameters which are developed and operationalised by the
legislature and the courts to maintain and sustain a rule-of-law society.
• There are four basic bricks of the foundation of administrative law:
1. Checking abuse or detournement of administrative power
2. Ensuring citizens as impartial determination of their disputes by
officials
3. Protecting citizens from unauthorised encroachment on their rights
and interests
4. Making those who exercise public power accountable to the
people
Varied Definitions of Administrative Law
• Some scholars are of the opinion that administrative law is the law
relating to the control of powers of the government. The main object
of this law is to protect individual rights.
• Others place greater emphasis upon rules that are designed to ensure
that the administration effectively performs the tasks assigned to it.
• Yet others highlight the principal objective of administrative law as

ensuring government accountability, and fostering participation by
interested parties in the decision-making process.
• Ivor Jennings: Administrative law is the law related to administration. It
determines the organisation, powers and duties of the administrative
authorities.
• This is the most widely-accepted definition, but according to Griffith, there
are two difficulties with the definition:
• It does not distinguish administrative law from constitutional law.
• It is a very wide definition, for the law which determines the powers
and functions of administrative authorities may also deal with the
substantive aspects of such powers, for example, legislations relating to
public health services, houses, town and country planning, etc.; but
these are not included within the scope of administrative law.
• It does not include the remedies available to an aggrieved person when his
rights are adversely affected by the administration.
• Wade: Administrative law is the law relating to the control of
governmental power.
• The primary object of administrative law is to keep powers of the
government within their legal bounds so as to protect the citizens
against their abuse.
• The powerful engines of authority must be prevented from running
amok.
• K.C. Davis: Administrative law is the law concerning the powers and
procedures of administrative agencies, including especially the law
governing judicial review of administrative action.
• Garner: Administrative law may be described as those rules which are
recognised by the courts as law and which relate to and regulate the
administration of the Government.
• Griffith and Street: The main object of administrative law is the

operation and control of administrative authorities. It must deal with
three aspects:
• What sort of power does the administration exercise?
• What are the limits of those powers?
• What are the ways in which the administration is contained within
those limits?
• Jain and Jain: Administrative law deals with the structure, powers and
functions of the organs of administration, the limits of their powers, the
methods and procedures followed by them in exercising their powers and
functions, the methods by which their powers are controlled including the
legal remedies available to a person against them when his rights are
infringed by their operation.
• Four aspects:
• Composition and the powers of administrative authorities;
• Fixation of limits of the powers of those authorities;
• Prescription of procedure to be followed by these authorities;
• Control of administrative authorities through judicial and other means.
• To summarise, Administrative Law is that branch of
Constitutional Law which deals with powers and duties of
administrative authorities, the procedure followed by them
in exercising the powers and discharging the duties and the
remedies available to an aggrieved person when his rights
are affected by an action of such authorities.
Nature and Scope of Administrative Law
• Administrative law deals with the powers of the administrative
authorities, the manner in which the powers are exercised and the
remedies which are available to an aggrieved person when those
powers are abused by theses authorities.
• Administrative law plays a vital role in progressive societies,
particularly in a welfare State, where many schemes for the progress
of society are prepared and administered by the government.
• The aim is to reconcile social welfare with individual rights which are
likely to get adversely affected by the execution and implementation
of such schemes.
• The main object is to keep the discretionary powers of administrative
authorities from turning into arbitrary powers.
Reasons for Growth of Administrative Law
• Radical change in the philosophy of the role played by the State –
shift in the negative policy of maintaining “law and order” and of
“laissez faire” – role of State extends to the adoption of positive
policy
• Inadequacy and complexity of the judicial system
• Inadequacy of and delay in the legislative process
• Scope for experimentation in the administrative process
• Administrative authorities can avoid technicalities
• Adoption of preventive measures, e.g. licensing, rate-fixing, etc.
• Enforcement of the aforementioned preventive measures.
Functions of Administrative Law
• To keep governmental powers within the limits of law
• To protect private rights and individual interests
• Rule-making power (delegated legislation)
• Authority to decide (tribunalisation)
• All administrative powers have two inherent characteristics:
• They are not absolute or unfettered
• They are likely to be abused
• Administrative law attempts to control the powers of the government and
its instrumentalities and agencies
• To strike a balance between individual rights and public interest
Red Light Theory and Green Light Theory
• Red light theory:
• Primary object of administrative law is to control governmental
power.
• Based on the assumption that every kind of power tends to corrupt
and absolute power tends to corrupt absolutely.
• Emerged from a fear of State absolutism.
• Since State regulates and controls various activities of its subjects,
there is every possibility of misuse or abuse of power.
• Seeks to protect private rights and individual interests.
• Object is to keep governmental agencies and administrative
authorities within the bounds of law through judicial control.
• Green light theory:
• Belief in ground reality and favor regulatory measures.
• Does not concede arbitrary, unrestricted or absolute power to administrative
authorities either.
• Emphasises on the political process.
• Control of administrative agencies under this theory is direct and internal rather than
indirect and external.
• The in-built mechanism within the theory allows intervention by the State in larger
public interest issues ensuring rights of citizens and the well-being of society as a
whole.
• This can be achieved through active involvement, positive deliberation, effective
consultation, creative contribution, productive participation, decentralisation of
power, freedom of information and other such actions of the administration.
• Both the theories have their own merits and pitfalls.
• In most systems, there is a combination of two theories.
• The right path lies somewhere between the two theories in an
“Amber light theory”.
• As observed in R v. Lancashire County Council, ex p Huddleston (1986)
2 All ER 941, 945, a new relationship has emerged between courts
and those who derive their authority from public law. It is a
partnership based on a common goal, viz. fostering highest standard
of public administration.
Sources of Administrative Law
• Constitution
• Statutes
• Ordinances
• Delegated legislation
• Judicial pronouncements
• Reports of Committees and Law Commission
• Administrative quasi-legislation/direction
Difference between Constitutional Law and
Administrative Law
• According to Holland, constitutional law describes the various organs of
the government at rest, while administrative law describes them in
motion.
• The structure of the legislature and the executive come within the
purview of constitutional law, but their functioning comes within the
sphere of administrative law.
• As per Jennings, administrative law deals with the organisation,
functions, powers and duties of administrative authorities while
constitutional law deals with the general principles relating to the
organisation and powers of various organs of the State and their mutual
relationships and relationship of these organs with the individual.
Rule of Law
Application of the Doctrine
• In England, the doctrine of rule of law was applied in concrete cases.
• If a man is wrongfully arrested by the police, he can file a suit for
damages against them as if they were private individuals.
• In Wilkes v. Wood (1763) 19 St Tr 1153: 98 ER 489, it was held that an
action for damages for trespassers was maintainable even if the action
complained of was taken in pursuance of the order of the Minister.
• In Entick v. Carrington (1765) 19 St Tr 1029: (1558-1774) All ER Rep 41, a
publisher’s house was ransacked by the King’s messengers sent by the
Secretary of State. In an action for trespass, 300 pounds were awarded
to the publisher as damages.
Rule of Law – Merits of the Doctrine
• The doctrine of rule of law provided to be a powerful
weapon in keeping administrative authorities within their
limits.
• It served as a touchstone to test all administrative actions.
• The broad principle of rule of law was accepted by almost all

legal systems as a constitutional safeguard.
Rule of Law – Merits of the Doctrine
• The first principle (supremacy of law) recognises a cardinal rule of
democracy that every government must be subject to law and not law
subject to the government. It opposed arbitrary and unfettered discretion
to governmental authorities, which may interfere with rights of citizens.
• The second principle (equality before law) is important to a democratic
government. It is based on the maxim, “However high you may be, Law is
above you”, and “All are equal before the law”.
• The third principle (individual liberties) places emphasis on the role of the
judiciary in enforcing individual rights and personal freedoms irrespective
of their inclusion in the Constitution. Mere inclusion of fundamental rights
in a statute would be meaningless if they cannot be enforced.
Rule of Law – Demerits of the Doctrine
• The first principle (supremacy of law) was criticised on the ground that
Dicey equated supremacy of rule of law with absence of not only arbitrary
powers but even of discretionary powers.
• According to him, wherever there is discretion, there is arbitrariness.
• Failure to distinguish between arbitrary powers and discretionary powers.
• No welfare State can function effectively without the exercise of
discretionary powers.
• It cannot be said that once law ends, tyranny begins (necessarily).
• As per KC Davis, “where the law ends, discretion begins”.
• No modern welfare State can run by a government of laws alone and not of
men – in the sense of eliminating all discretionary powers.
Rule of Law – Demerits of the Doctrine
• The second principle propounded by Dicey was fallacious insofar as the
understanding of the real nature of droit administratif.
• He was under the impression that the administrative courts of France,
including the Couseil d’Etat conferred on government officials special
rights, privileges and prerogatives as against private citizens.
• But in reality, the French system proved to be more effective in controlling
abuse of administrative powers than the common law system.
• Couseil d’Etat was technically a part of administration, but in substance, it
was very much a court as it comprises of “real Judges”.
• During Dicey’s time, the Crown enjoyed immunity under the maxim, “The
King can do no wrong” and thus, “equality before law” was not followed in
strictu sensu in England.
Modern Concept of the Rule of Law
• In today’s date, Dicey’s rule of law cannot be accepted in totality.
• KC Davis set forth seven principal meanings of the term “rule of law”:
1. Law and order
2. Fixed rules
3. Elimination of discretion
4. Due process of law or fairness
5. Natural law or observance of the principles of natural justice
6. Preference for judges and ordinary courts of law to executive
authorities and administrative tribunals
7. Judicial review of administrative actions
Rule of Law under the Constitution of India
• The Preamble enunciates the ideals of justice, liberty and equality.
• Part III comprises the recognition as well as enforcement of the
fundamental rights.
• The Constitution is supreme and the three organs of the government,
viz. the legislature, executive and judiciary are subordinate to it.
• All three organs ought to function in consonance with the
Constitution.
• Doctrine of judicial review – Articles 32 and 226.
• If any executive or legislative action contradicts any of the
Constitutional provisions, the same can be quashed by the Courts.
• All rules, regulations, ordinances, bye-laws, notifications, customs and
usages are “laws” within the meaning of Article 13 of the Constitution
of India – if ultra vires, can be quashed by the judiciary.
• The President is required to take an oath to preserve, protect and
defend the Constitution.
• No person shall be deprived of his life or personal liberty except
according to the procedure established by law (Article 21) or of his
property save by authority of law (Article 300-A).
• There is equality before the law and equal protection of laws (Article
14).
• Government and public authorities are subject to the jurisdiction of
ordinary courts of law and for similar wrongs are to be tried and
punished similarly. They are not immune from ordinary legal process
nor is any provision made regarding separate administrative courts
and tribunals (exception: CAT).
• Suits for breach of contracts and torts committed by public

authorities can be filed in ordinary law courts and damages can be
recovered from State Government or Union Government for the acts
of their employees.
Droit Administratif
• Please refer to your textbook(s).
Indian Cases relating to Rule of Law
Chief Settlement Commissioner, Rehabilitation Department,
Punjab v. Om Parkash & Ors., etc., 1969 AIR 33
• In our constitutional system, the central and most characteristic
feature is the concept of the rule of law which means, in the present
context, the authority of the law courts to test all administrative
action by the standard of legality. The administrative or executive
action that does not meet the standard will be set aside if the
aggrieved person brings the appropriate action in the competent
court. The rule of law rejects the conception of the Dual State in
which governmental action is placed in a privileged position of
immunity from control by law. Such a notion is foreign to our basic
constitutional concept.
Additional District Magistrate, Jabalpur v. Shivkant
Shukla (2017) 10 SCC 1 (Habeas Corpus case)
• Background of the Case:

• State of Uttar Pradesh v. Raj Narain, 1975 AIR 865
• Raj Narain had contested the 1971 Indian general election against
Indira Gandhi, who represented the constituency of Rae Bareilly in
the Lok Sabha, the lower house of the Indian Parliament.
• Gandhi was re-elected from Rae Bareilly by the popular vote, and her
Indian National Congress (R) party won a sweeping majority in the
Indian Parliament.
• Background of the Case:

• Narain filed a petition to appeal the verdict, alleging that Indira
Gandhi used bribery, government machinery and resources to gain an
unfair advantage in contesting the election.
• Narain specifically charged Gandhi of using government employees as
election agents and of organising campaign activities in the
constituency while still on the payroll of the government.
• Judgment of the Case:
• On 12 June 1975, Justice Jagmohanlal Sinha found Gandhi guilty of electoral
malpractices.
• Sinha declared the election verdict in the Rae Bareilly constituency “null and
void”, and barred Gandhi from holding elected office for six years.
• The court order gave the Congress (R) twenty days to make arrangements to
replace Gandhi in her official posts.
• Indira Gandhi filed for an appeal in the Supreme Court.
• Facts of the Case:
• On 25th June 1975, Jayaprakash Narayan organised a large rally in Delhi, where he
appealed police officers to reject the orders of government if the order was
immoral and unethical.
• Such a statement was taken as a sign of inciting rebellion in the country.
• Later in the day Emergency was declared in India by President of India,
Fakhruddin Ali Ahmad, under Article 352 on the grounds of internal disturbance.
• An order was also issued by the President under Article 359(1) that fundamental
rights, including the rights under Articles 14, 21 and 22 would not be enforceable,
i.e. no one would be able to approach Supreme Court or High Court to enforce
their fundamental rights.
• Article 359. Suspension of the enforcement of the rights conferred by

Part III during emergencies.
• Clause (1) states that where a Proclamation of Emergency is in
operation, the President may by order declare that the right to move
any court for the enforcement of such of the rights conferred by Part
III shall remain suspended for the period during which the
Proclamation is in effect.
• This means that no petition for the issuance of the writ of habeas
corpus would be maintainable for any case of detention.
• At that time, the primary that was used to detain people was the
Maintenance of Internal Security Act, 1971 (“MISA”).
• MISA gave all-encompassing powers to the Government to detain
people even without conducting a trial under the Act.
• People detained under MISA approached various High Courts across
the country challenging the provisions of Article 359 and claiming
that their rights under Articles 21 and 22 were being infringed.
• Petitions for the enforcement of the writ of habeas corpus were filed
under Article 226 and it was held by many High Courts that the writ
of habeas corpus was maintainable even during emergency.
• The Government raised a preliminary objection as to
maintainability of the petitions on the ground that in asking for
the release by writ of habeas corpus, the petitioners (detenus)
were in substance claiming that they had been deprived of their
personal liberty in violation of the procedure established by law.
• But such a plea was available to them only under Article 21 of
the Constitution and since enforcement of Article 21 of the
Constitution was suspended by the Presidential Order of 27th
June 1975, the petitions were liable to be dismissed at threshold.
• The matter went before the Supreme Court in the instant case where
the Government challenged the relief given to various detenus by the
High Courts.
• The case was heard by a five-judge Constitution Bench consisting of
Chief Justice A.N. Ray, Justice M.H. Beg, Justice P.N. Bhagwati, Justice
Y.V. Chandrachud and Justice H.R. Khanna.
• The central issue before the Supreme Court was whether there was
any “rule of law” in India apart from and irrespective of Article 21 of
the Constitution of India.
• The judgment was given by a majority of 4:1.
• Majority judgment:
• The Constitution is the mandate. The Constitution is the rule of law. No one can
rise above the rule of law in the Constitution.
• The rule of law is not a mere catchword or incantation. Rule of law is not a law of
nature consistent and invariable at all times and in all circumstances. The
certainty of law is one of the elements in the concept of the rule of law but it is
only one element and, taken by itself, affords little guidance.
• The suspension of right to enforce fundamental rights has the effect that the
emergency provisions in Part 18 are by themselves the rule of law during times of
emergency. There cannot be any rule of law other than the constitutional rule of
law. There cannot be any pre-Constitution or post-Constitution rule of law which
can run counter to the rule of law embodied in the Constitution, nor can there be
any invocation to any rule of law to nullify the constitutional provisions during the
times of emergency.
• Dissenting judgment (Khanna, J.):
• Rule of law is the antithesis of arbitrariness.
• Rule of law is now the accepted norm of all civilised societies. Even if
there have been deviations from the rule of law, such deviations have
been covert and disguised for no government in a civilised country is
prepared to accept the ignominy of governing without the rule of law.
• The rule of law has come to be regarded as the mark of a free society.
Its content is different in different countries. It is, however, identified
with the liberty of the individual. It seeks to maintain a balance
between the opposing notions of individual liberty and public order.
• Dissenting judgment (Khanna, J.):
• … the principle that no one shall be deprived of his life and liberty
without the authority of law was not the gift of the Constitution. It
was a necessary corollary of the concept relating to the sanctity of life
and liberty; it existed and was in force before the coming into force of
the Constitution.
• Even in the absence of Article 21 in the Constitution, the State has got
no power to deprive a person of his life or liberty without the
authority of law. This is the essential postulate and basic assumption
of the rule of law and not of men in all civilised nations. Without such
sanctity of life and liberty, the distinction between a lawless society
and one governed by laws would cease to have any meaning.
• The principle that no one shall be deprived of his life or liberty
without the authority of law is rooted in the consideration that life
and liberty are priceless possessions which cannot be made the
plaything of individual whim and caprice and that any act which has
the effect of tampering with life and liberty must receive sustenance
from and sanction of the laws of the land.
• Article 21 incorporates an essential aspect of that principle that
makes it part of the fundamental rights guaranteed in Part III of the
Constitution. It does not, however, follow from the above that if
Article 21 has not been drafted and inserted in Part III, in that event it
would have been permissible for the State to deprive a person of his
life or liberty without the authority of law.
Separation of Powers
• The origin of the doctrine of separation of powers is
traceable to Plato and Aristotle.
• In the 16th and 17th centuries, French philosopher John
Bodin and British politician Locke expressed their views
about the theory of separation of powers.
• Montesquieu formulated the doctrine systematically,
scientifically and clearly in his book, Esprit des Lois (The
Spirit of the Laws) published in the year 1748.
• This doctrine of separation of powers is an animation of the
rule of law and its roots lie in the concept of natural law.
• The doctrine aims at progressive diminution of the exercise
of arbitrary power necessary for protecting the life, liberty
and dignity of the individual.
• The purpose of the separation of powers is not to promote
efficiency in the administration, but to preclude the exercise
of arbitrary power.
• The purpose of the doctrine is not to avoid friction amongst
various organs of the State by keeping them separate, but to
protect people from autocracy by means of inevitable
friction due to distribution of powers.
• The main object of the doctrine is to divide governance

against itself by creating distinct centres of power so that
they could prevent each other from threatening tyranny.
Separation of Powers - Meanings
• According to Wade and Philips, separation of powers may mean
three things:
• The same persons should not form part of more than one of the
three organs of Government, e.g. the Ministers should not be in the
Parliament.
• 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 the Parliament.
• One organ of the Government should not exercise the functions of
another, e.g. the Ministers should not have legislative powers.
Separation of Powers - Principles
• There are four different principles on which the doctrine is based:
• Exclusivity principle which suggests structural division in all the
three organs of the State, as it is in the US.
• Functional principle which prohibits amalgamation and
usurpation but not interaction of all the organs of the State.
• Check and balance principle which means that each organ of
the State may check the other to keep it within constitutional
bounds.
• Mutuality principle which aims at creating concord not discord,
cooperation not confrontation, engagement not estrangement
amongst different organs of the State.
Defects of the Separation of Powers
• Historically speaking, the theory was incorrect. There was no
separation of powers under the British Constitution. It is said,
“Montesquieu looked across foggy England from his sunny vineyard
in Paris and completely misconstrued what he saw.”
• The doctrine is based on the assumption that the three functions of
the Government, viz. legislative, executive and judicial are
independent of and distinguishable from one another. However, in
reality, there are no watertight compartments.
• It is impossible to take certain actions if this doctrine is accepted in
its entirety. For instance, if the legislature can only legislate, then it
cannot punish anyone for committing a breach of its privilege.
Defects of the Separation of Powers
• In the modern welfare State, strict separation of powers is a
theoretical absurdity and practical impossibility.
• The modern interpretation of the doctrine means that discretion
must be drawn between “essential” and “incidental” powers and
one organ of the Government cannot usurp or encroach upon the
essential functions belonging to another organ, but may exercise
some incidental functions thereof.
• The fundamental object behind Montesquieu’s doctrine was
protection of liberty and freedom of an individual, but that cannot
be achieved by mechanical division of functions and powers.
Separation of Powers under the US Constitution
• Article I of the United States Constitution establishes the
Legislative Branch, which consists of Congress.
• Article II of the United States Constitution establishes the
Executive Branch, which consists of the President.
• Article III of the United States Constitution establishes the
Judicial Branch, which consists of the United States Supreme
Court.
• Article I Section 7 requires, among other things, that legislation
passed by Congress be presented to the President for his
signature or veto before it can become law.
• Separation of powers in the United States is associated with the checks and
balances system.
• Congress has the power to create laws, the President has the power to veto
them, and the Supreme Court may declare laws unconstitutional.
• Congress can impeach and convict the President for high crimes, like treason or
bribery.
• The House of Representatives has the power to bring impeachment charges
against the President; the Senate has the power to convict and remove the
President from office.
• In addition, Supreme Court candidates are appointed by the President and are
confirmed by the Senate. Judges can be removed from office by impeachment in
the House of Representatives and conviction in the Senate.
• The President performs legislative functions by sending
messages to the Congress and by exercise of the right of
veto.
• The President may, on extraordinary occasions, convene
both Houses, or either of them, and in case of disagreement
between them, with respect to the time of adjournment, he
may adjourn them to such time as he shall think proper.
• The Congress has judicial power of impeachment and the
Senate exercises executive powers in considering treaties
and in making certain appointments.
• The Congress has delegated legislative powers to various

administrative authorities and regulatory agencies and these
bodies exercise various functions.
• Thus, a single agency acts “successively as legislator,
investigator, prosecutor, jury, judge and appellate tribunal”
and the Supreme Court has never held that the combination
of all the powers in one agency is unconstitutional.
• All Justices of the US Supreme Court are nominated by the
President and confirmed by the Senate.
• Marbury v. Madison, 5 U.S. 137, was a legal case in which, on

February 24, 1803, the U.S. Supreme Court first declared an
Act of Congress unconstitutional, thus establishing the
doctrine of judicial review. The Court’s opinion, written by
Chief Justice John Marshall, is considered one of the
foundations of U.S. constitutional law.
• Marbury v. Madison, 5 U.S. 137
• Facts of the case:
• Thomas Jefferson defeated John Adams in the 1800
Presidential election. Before Jefferson took office on March
4, 1801, Adams and Congress passed the Judiciary Act of
1801, which created new courts, added judges, and gave the
President more control over appointment of judges.
• The Act was essentially an attempt by Adams and his party
to frustrate his successor, as he used the Act to appoint 16
new circuit judges and 42 new justices of the peace.
• The appointees were approved by the Senate, but they would
not be valid until their commissions were delivered by the
Secretary of State.
• William Marbury had been appointed Justice of the Peace in the
District of Columbia, but his commission was not delivered.
• Marbury petitioned the Supreme Court to compel the new
Secretary of State, James Madison, to deliver the documents.
Marbury, joined by three other similarly situated appointees,
petitioned for a writ of mandamus compelling the delivery of the
commissions.
• Questions:
• Do the plaintiffs have a right to receive their commissions?
• Can they sue for their commissions in court?
• Does the Supreme Court have the authority to order the delivery
of their commissions?
• The Court found that Madison’s refusal to deliver the
commission was illegal, but did not order Madison to hand over
Marbury’s commission via writ of mandamus.
• Instead, the Court held that the provision of the Judiciary Act of
1789 enabling Marbury to bring his claim to the Supreme Court
was itself unconstitutional, since it purported to extend the
Court’s original jurisdiction beyond that which Article III, Section
2, established.
• Article III: Judicial Branch
• Section 2: Justiciability
• Clause 2: Supreme Court Jurisdiction
• In all Cases affecting Ambassadors, other public Ministers
and Consuls, and those in which a State shall be Party, the
Supreme Court shall have original Jurisdiction. In all the
other Cases before mentioned, the Supreme Court shall
have appellate Jurisdiction, both as to Law and Fact, with
such Exceptions, and under such Regulations as the
Congress shall make.
• Marshall expanded that a writ of mandamus was the proper way
to seek a remedy, but concluded the Court could not issue it.
• Marshall reasoned that Section 13 of the Judiciary Act of 1789
which granted it the right to do so conflicted with the original
jurisdiction of the Supreme Court provided in the Constitution.
• Congress did not have power to modify the Constitution through
regular legislation because Supremacy Clause places the
Constitution before the laws.
• In so holding, Marshall established the principle of judicial
review, i.e., the power to declare a law unconstitutional.
Separation of Powers under the UK Constitution
• No strict separation of powers.
• In the UK, the executive comprises the Crown and the

Government, including the Prime Minister and Cabinet ministers.
• The legislature; Parliament, comprises the Crown, the House of
Commons and the House of Lords.
• The judiciary comprises the judges in the courts of law, those
who hold judicial office in tribunals and the lay magistrates who
staff the magistrates’ courts.
• The Constitutional Reform Act 2005 modifies the office of Lord
Chancellor and makes changes to the way in which some of the
functions vested in that office are to be exercised.
• The Act also creates the Supreme Court of the United Kingdom and
abolishes the appellate jurisdiction of the House of Lords. It creates
the Judicial Appointments Commission to select people for judicial
appointments in England and Wales, and provides for judicial
discipline in England and Wales.
• The Act modifies the jurisdiction of the Judicial Committee of the
Privy Council and removes the right of the Lord President of the
Council to sit judicially.
• The Lord Chancellor is a member of the Cabinet and is, by law,
responsible for the efficient functioning and independence of the courts.
• The Constitutional Reform Act 2005 removed the judicial functions of
the Lord Chancellor, and his former role as head of the judiciary is now
filled by the Lord Chief Justice (head of the judiciary in England and
Wales).
• Before the Constitutional Reform Act 2005, judicial appointments were
made on the recommendation of the Lord Chancellor, who was a
Government Minister.
• The 2005 Act established an independent Judicial Appointments
Commission/Boards for England and Wales, for Northern Ireland and for
Scotland.
Separation of Powers under the Indian Constitution
• Constitutional Provisions:
• Article 50. Separation of judiciary from executive.—The State shall take
steps to separate the judiciary from the executive in the public services
of the State.
• Article 123. Power of President to promulgate Ordinances during
recess of Parliament.
• Article 121. Restriction on discussion in Parliament.—No discussion
shall take place in Parliament with respect to the conduct of any Judge
of the Supreme Court or of a High Court in the discharge of his duties
except upon a motion for presenting an address to the President praying
for the removal of the Judge as hereinafter provided.
Separation of Powers under the Indian Constitution
• Constitutional Provisions:
• Article 211. Restriction on discussion in the Legislature.—No discussion shall take
place in the Legislature of a State with respect to the conduct of any Judge of the
Supreme Court or of a High Court in the discharge of his duties.
• Article 361 provides immunity to the President and the Governors from court
proceedings.
• System of checks and balances – judicial review.
• Can strike down any executive or legislative action if they are unconstitutional.
• Can strike down any legislation if they violate Article 13.
• The legislature reviews the functioning of the executive.
• Judges are appointed by the executive.
• The legislature can pass laws to nullify the effect of certain judgments; the same
is conversely true.
In Re The Delhi Laws Act, 1912, 1951 AIR 332
• The Supreme Court observed as under:
• “Although in the Constitution of India there is no express separation
of powers, it is clear that a legislature is created by the Constitution
and detailed provisions are made for making that legislature pass
laws. Is it then too much to say that under the Constitution the duty
to make laws, the duty to exercise its own wisdom, judgment and
patriotism in making laws is primarily cast on the legislatures? Does it
not imply that unless it can be gathered from other provisions of the
Constitution, other bodies, executive or judicial, are not intended to
discharge legislative functions?”
Rai Sahib Ram Jawaya Kapur And Ors. v. The State Of
Punjab, AIR 1955 SC 549

• “The Indian Constitution has not indeed recognised the
doctrine of separation of powers in its absolute rigidity but
the functions of the different parts or branches of the
Government have been sufficiently differentiated and
consequently it can very well be said that our Constitution
does not contemplate assumption, by one organ or part of
the State, of functions that essentially belong to another.”
I.C. Golaknath v. State of Punjab, AIR 1967 SC 1643
• “The Constitution brings into existence different constitutional
entities, namely, the Union, the States and the Union Territories. It
creates three major instruments of power, namely, the Legislature,
the Executive and the Judiciary. It demarcates their jurisdiction
minutely and expects them to exercise their respective powers
without overstepping their limits. They should function within the
spheres allotted to them. Some powers overlap and some are
superseded during emergencies. The mode of resolution of
conflicts and conditions for supersession are also prescribed. In
short, the scope of the power and the manner of its exercise are
regulated by law.”
Kesavananda Bharati v. State of Kerala (1973) 4 SCC 225
• The Supreme Court held that separation of powers among the legislature,
the executive and the judiciary constitutes basic structure of the
Constitution.
• “There is ample evidence in the Constitution itself to indicate that it
creates a system of checks and balances by reason of which powers are so
distributed that none of the three organs it sets up can become so pre-
dominant as to disable the others from exercising and discharging powers
and functions entrusted to them. Though the Constitution does not lay
down the principle of separation of powers in all its rigidity as is the case in
the United States Constitution but it envisages such a separation to a
degree as was found in Ranasinghe’s case. The judicial review provided
expressly in our Constitution by means of Article 226 and 32 is one of the
features upon which hinges the system of checks and balances.”
Indira Nehru Gandhi v. Shri Raj Narain, AIR 1975 SC
2299
• “The doctrine of separation of powers is carried into effect in
countries like America, Australia. In our Constitution there is
separation of powers in a broad sense… The doctrine of
separation of powers as recognised in America is not applicable
to our country.”
• “Although there is in the Constitution of India no rigid separation
of powers, by and large the spheres of judicial function and
legislative function have been demarcated and it is not
permissible for the Legislature to encroach upon the judicial
sphere.”
US Case
Panama Refining Company v. Ryan, 293 U.S. 388
• Separation of powers “is not a doctrinaire concept to be
made use of with pedantic rigor. There must be sensible
approximation, there must be elasticity of adjustment, in
response to the practical necessities of government, which
cannot foresee today the developments of tomorrow in their
nearly infinite variety.”
Fin.

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Administrative Law – Unit I

• Yet others highlight the principal objective of administrative law as

• Griffith and Street: The main object of administrative law is the

• It served as a touchstone to test all administrative actions.

• The broad principle of rule of law was accepted by almost all

• Suits for breach of contracts and torts committed by public

• Background of the Case:

• Background of the Case:

• Article 359. Suspension of the enforcement of the rights conferred by

• The main object of the doctrine is to divide governance

• The Congress has delegated legislative powers to various

• Marbury v. Madison, 5 U.S. 137, was a legal case in which, on

• In the UK, the executive comprises the Crown and the

• The Supreme Court observed as under:

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