ppt 2 admn law

Short notes –each four marks

• Meaning 1 - 2• Definition if any 1• Origin and growth 1• Position in india 1

Section CExplain the meaning and nature of administrative

law?

• After 20th century the concept of administrative law has been characterized as the most outstanding legal development.

• In India administrative law can be traced way back from mauryas and Guptas.

• Administrative law developed tremendously and the rapid growth of it in modern times is the direct result of the growth of administrative powers and functions

• Laissez faire was introduced with the philosophy of minimizing the government control and maximizing free enterprise and contractual freedom to public.

• The state was characterized with a major objective of law and order control from external aggression and dispensing justice to its subjects and collect few taxes to finance these activities.

• Concentration of wealth in a few hands has become a big problem and the state was entrusted with the responsibility of ameliorating the conditions of the poor.

• Before 1947 india was a police state.

.• As per the preamble of the constitution the state aims to establish “sovereign socialist secular democratic republic” to all its citizens.

• The state is required to direct its policy towards securing that the citizens have equal right to an adequate means of livelihood;

• The constitution insists the state about the social welfare as in the words of the supreme court:

• “the constitution envisions to establish an egalitarian social order rendering to every citizen, social, economic and political justice in a social and economic democracy”. Smatha V. State of AP AIR 1997 SC 3297

• The state pervades into every aspect of human life as a protector, provider, entrepreneur, economic controller, arbiter etc..,

.

• With the change in the order of the day the state role was much focused towards social welfare.

• The state playing major role in promoting socio-economic welfare of the public, state assumes more and more power to regulate the society. Under the following practice of separation of powers, the system consists of three pillars as legislative, executive and judiciary. While increase in state activities has meant increased work for all the organs of the state, yet the largest extension in depth and range of functions and powers has taken place at the level of executive cum administrative organ.

• We have come to live in an administrative age; administrative organ become predominant and it is on the ascendancy; its functions and powers have grown vastly over time. Administration is the all pervading feature of life to-day.

.• The administration has assumed such an extensive role that it is not now easy to define the term “administration”. It does not suffice to say that an administrative body is one which administers, for the administration does not only put the law into effect, but does much more than that; it legislates and adjudicates. At times it is most acceptable that the administration defines negatively by saying that “ what does not fall within the purview of the legislature or the judiciary is administrative”.

Nature and scope • According to USA’s Kenneth Culp Davis• “administrative law is the law concerning the powers and

procedures of administrative agencies, including especially the law goberning judicial review of administrative action. It doesnot include the enormous mass of substantive law produced by the agencies.

• He further states as “Apart from judicial review, the manner in which public officers handle business unrelated to adjudication or rule-making is not a part of administrative law, this means exclusion of public administration.

• He further says that administrative law is on procedures for formal adjudication and for rule-making. It also includes such matters as investigating, prosecuting, negotiating, settling or informally acting.

• According to Sir Ivor Jennings, Administrative law is the law relating to the administration. It determines the organization, powers and duties of administrative authorities. On the face of it, it does not include the consideration of purely discretionary functions not falling within the category of legislative or judicial.

• Jennings definition is much acceptable than Davis but Jennings definition fall short of Davis on emphasis on procedures used by administrative agencies.

• Procedures have great significance in administrative law because proper procedures are necessary for proper discharge of administrative power. Evolution of fair procedures is thus necessary to minimize the abuse of administrative power.

• How can the legal ideas of fair procedure and just decision be infused into the administrative power of the state?

• Franks Committee investigated and resulted in their report number of procedural improvements have been effected into the working of the whole system.

• “Administrative Law deals with the structure, powers and functions of the organs of administration; the limits of their powers; the methods and procedures followed b 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 right are infringed by heir operation”

• The first part deals with the composition and powers of organs of administration. Organs of administration.

• The second part refers to the limits on the power of administrative authorities. express limits are laid down in the provisions of the parent statute.

• Third part refers to the procedures used in exercising those powers. evolving of fair procedures is a way of minimizing the abuse of a vast discretionary powers conferred on the administration.

• The fourth part refers to the control of the administration through judicial and other means, can be called as extra-judicial means of controlling the administration.

• In the modern onslaught of administration, the individual is affected in many ways in the name of “public good” and “Public interest”. The individual is in the weakest defensive position against the mighty power of the administration. Therefore the important function of administrative law to ensure that government’s powers are exercised according to law, on proper legal principles, according to the rules of reason and justice; and not on the mere caprice or whim of the administrative officers, and that the individual has adequate remedies when his

rights are infringed by the administration.

B. Elucidate the essentials of a valid notice and describe the same with the help of a case law

• Properly served• Sufficient time to prepare his case• correct reply address• Notice carry proper contents• Given contents must be clear and direct• Lakshminarayan case• Sathish chandra case (corporation case)

Section Da. Describe A.V.Dicey’s Rule of law. Define, how Rule of law

works in administrative law

• “Rule of Law” said Dicey in 1885 means “ the absolute supremacy or predominance of regular law as opposed to the influence of arbitrary power and excludes the existence of arbitrariness, of prerogative, or even wide discretionary authority on the part of the government”

• Rule of law was “equality before the law or the equal subjection of all cases to the ordinary law of the land administered by the ordinary law courts”

• Ordinary courts were differed with special courts as defense & other.

• One can denounce the increase arbitrary or discretionary powers of the administration and advocate controlling it through procedures and other means. Supremacy of courts over administrative action is a control over arbitrary nature in discretion.

• Executive must act under the law

Rule of Law

• An important function of administrative law is to promote rule of law.

• Rule of law envisages that the administration does not exercise any power outside the law.

• Rule of law means absence of arbitrary power.• No one can deprive the right, liberty or

property without the authority of law.• Rule of law generally accepted maxim of

Democratic governance.

A.V.Dicey

• There is supremacy of law and absence of arbitrary authority.• Government officials are as much subject to the law of the land

as ordinary citizens• The law of the land is administered by ordinary courts• There are no special laws and no special tribunals• No man is to be deprived of his life, liberty or property unless he

is proved guilty in a court of law and in accordance with the ordinary legal procedure

• The rights of citizens are not derived from the provisions of a written or formal constitution. They are baseed upon the common law of the land and various judicial decisions in cases brought by private citizens for the enforcement of their rights

• Administrative law works primary constitutional functions as legislative administrative and judicial functions. (it also includes the hybrid Varity of administration + Judiciary i.e., Quasi-judicial)

• Major pillars under separation of power are Legislative executive and judiciary.

• Under the pillar of Legislative the administrative law function in ‘delegated legislation

• Quasi-judicial function is an adjudicative power which is generally classified under judiciary.

• Administrative power is other function of administrative law which is neither legislative nor executive.

.• A legislation needs to publish in the official gazette where as an administrative order need not be published in it, only to the capacities/persons concern, required to be circulated.

• For ex:- The essential commodities Act, 1955 sec 3 empowers central government by order regulate several things such as movement of essential commodities, their prices regulation time to time, distribution need not be published in the official gazette. (delegated legislation)

• Natural justice, judicial review, sub-delegation quasi-judicial etc.,

Rule of law

• A legislative act is the creation /promulgation of an Act/rule of conduct with out referring to particular cases where as an administrative act is the making and issue of the specific direction or the application of a general rule to a particular case in accordance with the requirements of policy.

• Administration --- Administrative adjudication

.• Rule of law is a judicial review of an executive / administrative

action. Discretion- arbitrariness• Rule of law under the constitution serves the needs of people

without undoubtedly infringing their rights.• Rule of law emphasizes equity before the law• Rule of law restricts prejudice to any person by the executive

action.• Rule of law, any abuse of power by public officer should be

controlled. • Rule of law and due process are closely linked with human

rights protection.• Constitution of India is based on the concept of ‘rule of law’.

Every one is un-questionable under the supremacy of law.• Rule of law unfolds its contents and establishes its concept.• Rule of law prompt the law courts to act in a manner, fair and

reasonable having due regard to nature of the offences and the liberty of the citizens.

B. Explain how the maxim “Non delegare potest delegare” works with Indian constitution

• Sub-deligation is used on an elaborate scale as an administrative technique in modern times.

• Statutory power sub-delegated the rule making power to its officers.

• The parent Act delegated to central-govt. The central govt delegate the powers to its officers and state governements thirdly the state government further delegates to its officers concerned.

• In Barium Chemicals case it was held that sub-delegation of administrative power is permissible provided the control over its exercise is retained by nominee of parliament. The statutory authority retains in its own hands the power to approve or disapprove a decision made by the delegate and degree of control, maintained by the authority is close enough so that the decision can be regarded as authority’s own decision, sub-delegation will be valid.

.

• problems underlying sub-delegation• controls similar to that of delegation• Same doctrines apply over it• Publication of sub-delegated legislation• Laying sub-delegated legislation before

legislature

Judicial review

• Judicial control of administrative actions through writs, SLP’s, …

• Judicial control of administrative actions through discretionary powers

• High court’s superintendence over tribunals• Statutory judicial remedies

• Tribunals is liberalizing the rule of locus standi• Moulding of quick & effective remedies• Extension of the writ system to non-statutory

government instrumentalities• Reducing the scope of immunity from

production of documents• Constitution ensures(preamble) that an

administrative action is subject to judicial review

• The term tribunal is interpreted to include every adjudicatory body acting according to natural justice and rendering a definitive decision under the supervision of the High Court.

• Where a statute provides that an aided school cannot dismiss an employee without the dismissal order being confirmed by the deputy commissioner, and that an aggrieved person can appeal to the commissioner against an order of the deputy commissioner. Both the commissioner and the deputy commissioner are quasi-judicial authorities and so will be comprehended in the expression “tribunal”.

• High court superintendence includes the power• To call for return from courts• To make and issue general rules and prescribe forms for

regulating the practice and proceedings of courts• To prescribe forms in which books, entries and accounts are

to be kept by the officers of the court.• The high court may call the records from the tribunal,

examine the same and pass appropriate orders as it may think just and proper.

• The power of the High Courts superintendence is not only of administrative in nature but also of judicial in nature.

The power of superintendence of the HC can be invoked if a tribunal

1. Declines to do what is legally incumbent on it to do and thereby refuses to exercise jurisdiction vested init by law.

2. It exceeds its jurisdiction’3. It acts without jurisdiction4. There is an error of law apparent on the fact of the

record as distinguished from mere error of law5. It has exercised its discretion in an arbitrary or

capricious manner.

• The supervisory jurisdiction of the high court cannot be limited by any Act of the legislature and it can be exercised even when the decision of a tribunal is declared to be final and conclusive by its parent statute because no statutory provision can over-ride or limit a constitutional provision. AIR 1968 SC 1481.

• Res-judicata in Writs, SLP’s, Appeals• Alternative legal remedies– An alternative legal remedy possible there will be

no writ.– Writ must not replace the ordinary remedies

established– Rule of exhaustion of remedies is not strictly

working under rule of law it is working under discretion of courts in the interest of justice.

• Question of fact• Under Writs the HC is having the jurisdiction

both on Question of Law and Fact• The practice indicates that the HC is reluctant

to go into the question of Fact thinking that this can be done best by the ordinary courts

• In the interest of justice if the Q of Fact is required to be looked in by HC definitely be done.

Interim order

• The HC possess inherent power to grant interim or interlocutory order.

• The purpose of providing such orders is protecting the interest of justice to parties.

• Tribunal rights are limited.• Dismissal in limine (threshold level)

Laches

• Laches means (sleeping over the rights for a longer period)

• The HC overruled the preliminary objections based on laches. AIR 1967 SC 1450.

• Orient Paper Mills V. Union of India• Appointment of a commission of inquiry was challenged

after four years of its appointment. This delay was held not to be fatal to the petition as the very jurisdiction of the commission was being challenged. Moreover the question of delay does not arise whre a writ of prohibition is asked for.

Judicial control over

administrative discretion

• Two ways of control over Administrative discretion.

• 1) through procedural safe guard of natural justice

• 2) through doctrine of excessive delegation in relation to delegated legislation

• The principles of judicial review would apply to exercise of contractual power by government body is

• 1.the duty of the court thus confines itself to question of legality

• 2. Breach of principles of natural justice• 3. abuse of powers• 4. committed an error of law?• Judicial review is limited to deficiency of decision-

making process and not the decesion.• Rameshwar Prasad V. UOI (2006) SCC 1

• While appreciating the inherent limitations in exercise of the power of judicial review, the judicial quest has been to find and maintain a right and delicate balance between the administrative discretion and the need to remedy alleged unfairness in the exercise of such discretion.

• Jayrajbhai Jayantihbai patel v. Anilbhai Nathubhai patel 2006 (8) SCC 200

Courts do not go into the merits of exercise of discretion

• The basic principle is that the court would not interfere with, or probe into the merits of, the exercise of discretion by an authority, as it is not a forum to hear appeals from the decisions of the authority. They would not go into the question whether the opinion formed by the concerned authority is right or wrong. The court does not substitute its own views for that of the concerned authority.

Arora V. state of Uttar PradeshAIR 1964 SC 1230

• Arora’s land was acquired by the state government under the LAAct, 1894 for a company for construction of its factory for manufacturing textiles machinery parts.

• Arora challenged the acquisition on the ground that the himself intended to erect a factory in that nature and , therefore, the said land which was intended to be used for one public purpose should not be acquired for another public purpose.

• The court held that the requirementof “public purpose” as was stipulated by the Act the UP govt acquired the land for a public purpose is the discretion of the govt .

• The court cannot interfere with the satisfaction of the government that the land is likely to be needed for a public purpose, unless reasons given are wholly irrelevant.

• In the above matter the govt act can be challenged only on the ground of non-application of mind and malafide.

• Exercise of power can be of two types• Objective and subjective• The position of the courts/judicial review is not to probe into the

merits of the administrative decision but it follows whether the authority has not acted according to law, the court would merely quash the administrative action in question but not direct the authority to act in a particular manner.

• When an authority issued a permit for two years while the statute permits the authority to grant renewal period anywhere between three to five years, now the court is having scope over the administration to direct them to work in the given authority.

• A discretionary power is not completely discretionary in the sense of being entirely uncontrolled.

• The courts have rejected the concept of an absolute and unfettered statutory discretion.

• “naked and arbitrary exercise of power is bad in law”

Baldev Raj V. Union of India AIR 1981 SC 70

• All administrative power vested in a public authority must be structured with a system of controls informed by both relevance and reasons. An administrative power should be exercised within defined limits in the reasonable discretion of the designated authority. The vesting of an absolute and uncontrolled power in such authority falls out side the constitution altogether.

Suman Gupta V. State of J&K AIR 1983 SC 1235

• L.Chandra Kumar [JT 1997 (3) SC 589]• S. P. Sampath Kumar [(1985) 4 SCC 458]

AssignmentDate of submission 09-04-2010 before 2.00PM Hard copy at my

cubical.

Judicial Review over

Administrative discretion

Different theories govern administrative process

• Red light theory• Green light theory• The Public Choice Theory • The Neopluralist Theory • The Public Interest Theory • The Civic Republican Theor

OMBUDSMAN

• The administration enjoys a vast reservoir of powers to order and affect the daily lives of the people over a wide canvas.

• “it is not eccentric to conclude that if there is more administration, there will be more maladministration” Wheare – in his book Maladministration and its remedies

• Judicial control over administrative action that, as a control-mechanism over the administration, but the courts do not provide for a review in depth of the entire administrative field.

• Judicial review does not comprehend the merits of administrative decisions.

• Several aspets of administrative function fall outside the judicial review

• The legislature to lay down procedures which the administration must follow while exercising the vast powers which are conferred on the administration.

• The failure of the legislature to lay down procedures which thee administration must follow while exercising its power

• The judicial review does not provide enough corrections in the administration it provide decision for that case only.

Ombudsman in Newzealand

• Ombudsman system was adopted in New Zealand in 1962 under the Parliamentary Commissioner (Ombudsman) Act, 1962 and in 1975 the Act was repealed and replaced by 1975 Act.

• Ombudsman provided with the jurisdiction of dealing with governmental agencies and local governments

• The ombudsman is the nominee of the House and get support from all sections of the House.

• The ombudsman has a secured tenure of five years. He can be re-appointed. He is the nominee of the executive and he is not part of it. He is independent.

• He can be removed from his office by the governor-general upon an address from the House of Representatives on certain grounds such as misconduct, negligent of duty…

• A person feeling aggrieved from an administrative action may make a complaint to the ombudsman.

• A committee of the House or the prime minister through chief-ombudsman may direct any petition to him for investigation.

• Suomotu also ombudsman can investigate• Scope of rejection to frivolous complaints lack of personal

interest of the complainant

• The ombudsman can recommend • The matter be reffered to the appropriate authority for

further consideration• The omission be rectified• The decision be cancelled and varied• Any practice on which the decision was based should be

altered• Any law on which the decision was based should be

reconsidered.• Reasons should have been given for the decision• Any other steps to be taken can be recommended

• The ombudsman decisions are not challengeable or not reviewable in court of law

• Ombudsman himself does not follow can not be challengeable

• The created authority is much more arbitrary.

Ombudsman in England• The ombudsman in England officially known as the Parliamentary

Commissioner.• Ombudsman is appointed by the prime-Minister in consultation with the

chairman of the selection committee and holds office until he reaches the age of 65.

• He can be removable only by House of parliament.• The jurisdiction over what all departments a particular ombudsman can try

was given in schedule II of the Parliamentary Commissioner Act, 1967.• Certain public or national interest matters can also tried which was

provided in schedule III• He has the same power as a court to call the witness or get the documents• The crown can get no privilege from submitting the documents or giving

evidence.

Australian Ombudsman

• Australia has two tier ombudsman system• Each state has its own separate ombudsman and there is

the ombudsman system at the centre• This concept came in by The Ombudsman Act, 1976, most

of the act provisions are similar to that of New zealand.• Appointed by governor-general and he retires a the age of

65years• He cannot be removed from his office without address

by the two Houses of Parliament praying the removal on the ground of misbehavior or physical or mental incapacity.

• A restrictive feature of the system of complaint is that a complaining person of any injury sufferd by him by administrative action has to send his complaint to the ombudsman only through a member of the House of Commons

• The house of Commons may do a preliminary screening of the petitions so that the ombudsman is not overloaded / troubled with work.

• Ombudsman is a viable method of investigation into complaints against government departments.

Ombudsman in India

• The administration in India has been acquired vast powers in the name of socio-economic development.

• Ombudsman vs legislative committee• France – “council of state”

Inquiry/investigation

• Classify the areas as judiciary, executive, legislative etc.,

• In Judiciary existing system of investigation.

Minor measures

• the Judicial Council or similar bodies have been empowered to impose a variety of ‘minor measures’ such as

• (i) issuing advisories,• (ii) request for retirement, • (iii) stoppage of assignment of judicial work for

a limited time • (iv) warning,• (v) censure or admonition (public or private).

• The procedure of statutory inquiries has now become standardized.

• The process of land acquisition we have an established procedure by law accordingly it practices.

Administrative action Vs judicial action

Judicial proceedings the standard of proof differs with the administrative proceedings

Departmental proceedings the standard of proof is preponderance of reasonable doubt.

In departmental proceedings the factors operating on the minds of the authority may be many such as delinquent and other staff

Central Vigilance commission

• To strengthen the existing mechanism for checking corruption amongst government servants, The CVC was created on 1964

• Santhanam committee was established on 1962 for the recommendations of the committee on prevention of corruption

• The CVC jurisdiction was purview of government servants employed in the ministries and departments or the govt of India and the union territories and employees of public undertakings.

• Practical matters of gazetted officers, employees and nationalized banks drawing pay of Rs.1,000/- per month and above.

• Commission is attached to M of Home Affairs• Commission is autonomous body.

CVC functions

• 1. whenever complaint received by the commission it refers either to CBI or the concerned ministry for investigation. After investigation the report be sent to the commission for advice. The commission may drop a complaint at the initial stage itself if it considers it to be vague or if the allegations contained therein are not verifiable. During 1976 out of 665 complaints 492 complaints were dropped by the commission itself the remaining 173 were forwarded to the CBI or the concerned ministry for further investigation.

• The commission advises as to the action to be taken in the following cases– Reports of investigation by the CBI involving

departmental action or prosecution in case either refered to it by the commission or otherwise

– Reports of investigation by the ministry or department involving disciplinary action in cases either referred by the commission

– Cases received direct from public sector undertakings and statutory corporation also of the same as above.

• The commission has power to require that oral enquiry in any departmental proceeding should be entrusted to one of the commissioners for departmental enquiries. It oversees the enquiries conducted by the commissioners and here the commission has two manor functions – Ensure that enquiries are completed expeditiously– To tender advice to the disciplinary authorities for

taking action on the reports of the commissioners

• All chief vigilance officers are required to furnish to the commission for its assessment a resume of the vigilance work done in their organization with special emphasis on preventive vigilance.

• The commission may suggest chances in the procedure or practice where it appears that the existing procedure or practice affords scope for corruption or misconduct. The commission may also initiate review of administrative procedure and practice in so far as the same relates to the maintenance of integrity in the administration

• The commission discharges miscellaneous functions such as conducting orientation courses for vigilance officers and courses in the conduct of departmetal proceedings, review of vigilance arrangemets in departments advice in matter relating to interpretation of law and procedures governing departmental proceedings.

• There is a separate cell in the commission for enforcement of orders regarding reservation of posts for candidates belonging to SC/ST.

• The commission has to submit an annual report to the Ministry of Human Affairs, (MHA) particularly mentioning the cases in which its recommendations.

• If MHA couldn’t appreciate a copy of the report together with the govt’s memorandum explaining the reasons for non-accpetance of any recommendations sould be submit in Parliament.

• Majority of the states have opted to control corruption through Vigilance Commission.

• The vigilance commission is an agency of the executive and not of the legislature.

• The vigilance commission has no adjudicatory functions and is not a competent authority for sanctioning criminal prosecutions for offences committed by public official in discharge of their duties.

• Sunil kumar v. state of WB AIR 1980 SC 1170

• If consultation with Vigilance commission is all correct on the part of the government if it consults any other person or authority also correct when it amounts to bias is that the administrative authority decision making power was influenced by the other consulting person and that made the decision making authority to apply its own mind is against bias.

• If the state is involving vigilance commission in the investigation process then summary report copy must serve to the delinquent officer.

• Commissioners involvement must be clear before the process begin, it should not be at the option of the administrative authority at a required time calling the commissioners advice and passing the decision in the interest of protecting the principles of natural justice.

• The disciplinary proceedings against govt servants under Art.309 of the constitution.

• The prevention of Corruption Act, 1988 make certain provisions that corrupted be eradicated.

• As per sec 17 in the protection of the innocent officers a check was kept as sanction of state government is necessary.– `