Administrative Law - Introduction

Legislature makes law, Judiciary provides remedy when there is breach of

law.

Everything in middle is dealt by the executive and administrative law is the

law relating to the control of powers of the executive authorities

According to Holland the structure of the legislature and the executive

comes within the purview of the constitutional law but their functioning comes
within the sphere of administrative law.

Constitutional law deals with the fundamentals while administrative law deals
with the details.

Up to the 19th century there were mainly two functions of the State

1. Defence of the country from foreign invasion, and

2. maintenance of law and order within the country.

By 20th Century, with development of society there has been developments

in the duties of state, now State doesn't only oversee breach of law, the law is
used as a tool for administration too, collecting taxes, providing regulatory
guidelines, managing trade, looking out for environment etc.

So administrative law is a collective term which deals with the

ADMINISTRATION of the state of the social, economic and political spheres
of our lives.

There are various authorities, regulatory authorities, quasi-judicial authorities

and other authorities which we can call administrative organs.

Administrative law determines the structure, functions and powers of these

administrative organs.

Being largely Judge-made, administrative law is not contained in any

Administrative Law Act but we have some doctrines and rules for controlling
Administrative Actions, if there is deviation from those doctrines and rules the
courts would put a check on them with the help of Judicial Review (Discussed
in next topic)

Principles of Natural Justice

Derived from the word “Jus Naturale' of the Roman law which means 'a
system of law based on fundamental ideas of right and wrong'
It is also called Universal Justice, Fundamental Justice and Substantial
Justice

The decision in Ridge v. Baldwin (1963) for the first time applied the doctrine
of natural justice into the realm of administrative decision making by using the
principles to overturn a non-judicial (or quasi-judicial) decision. The Court of
appeal denoted natural justice as 'fair play in action' a phrase favoured by
Bhagawati, J. in Maneka Gandhi vs. Union of India (1978)

Rules of Natural Justice

• NEMO JUDEX IN CAUSA SUA (Rule Against Bias)

• AUDI ALTERAM PARTEM (Hear the other side)

NEMO JUDEX IN CAUSA SUA (Rule Against Bias)

This maxim is based on 2 rules

1. No one should be a judge in his own cause.

2. Justice should not only be done, but manifestly and undoubtedly be seen to
be done.

Types of Bias

• Personal Bias

Personal bias arises from near and dear i.e., from friendship, relationship,
business or professional association.

A.K. Kraipak v. Union of India (1969)

The Supreme Court quashed the selections made by the selection board on
the ground that one of the candidates appeared before selection committee
was also a member of the selection board.

• Pecuniary Bias.

When the adjudicator/ judge has monetary/ economic interest in the subject
matter of the dispute/ case.
Thomas Bonham v College of Physicians (1610)
Commonly known as Dr. Bonham's Case,

Dr. Bonham was fined for practicing in the city of London without license of
the college of Physicians.

Sir Edward Coke said that because the college was entitled to receive a
portion of the fine, they imposed on Bonham, the statute made them
prosecutor, plaintiff, and judge in the dispute, because no person may be a
judge in his own cause Coke suggested that the impartiality of a judge is
compromised in this case.

• Subject matter Bias.

• when the judge possesses a general interest of the subject matter of

dispute.

Gullapalli Nageswara Rao v. A. P.S.R.T.C (1958)

In this case, the government proposed nationalization of motor transport.
Objections for nationalization was referred to be heard by the secretary to the
Government, who upheld the validity of the scheme (for nationalization). It
was challenged on the ground that the said secretary in fact, initiated the
nationalization. The Supreme Court held the government secretary's action
invalid.

AUDI ALTERAM PARTEM (Hear the other side)

No person can be condemned or punished by the court without having a fair
opportunity of being heard.

Elements of Fair hearing

Issuance of notice

• There are no specific guidelines but the notice must at least

mention the following details:
• Time, place and nature of hearing
• Legal authority under which hearing is to be held
• Statement of Specific charges and proposed action the person
has to meet
• Evidence to be used against the person
• Reasonable opportunity to the person to comply with the
requirement of notice.
Punjab National Bank v. All India Bank Employees
Federation (1960)
In this case, notice did not contain the charges against which fine was
imposed. The Supreme Court held that the notice defective and quashed the
fine.

R. v. University of Cambridge (Dr. Bentley's case) (1723)

In this case, the University authorities without giving any notice cancelled the
degree of Dr. Bentley on the ground of misconduct. The University's action
was held violative of the principle of natural justice.

Right to present the case and evidence and Cross

Examination

Right of Legal representative

Right to legal representation is also included under the Ambit of Article 21 of
the Constitution Alto Article 39A provides for free legal aid for those who are
not able to get it because of economic or other disability.

Right to get reason for the decisions of court

Ajantha Industries v. Central Board of Direct Taxes

(1975)
The court has held that recordings of reasons on the file are not sufficient. It is
necessary to give reasons to the person concerned. In this case, the order
was quashed on the ground that the reasons were not communicated to the
person concerned.

Exceptions to Natural Justice

Exception by Necessity (Doctrine of Necessity)

Where bias is apparent but the same person who is likely to be biased has to
decide, because of the statutory requirements or the exclusiveness of a
competent authority to decide, the Courts allow such person to decide.

Exception by statutory provisions

Natural justice is implied by the Courts when the parent statute under which
an action is being taken by the Administration is silent as to its application.
Omission to mention the right of hearing in the statutory provision does not
ipso facto exclude a hearing to the affected person. A statute can exclude
natural justice either expressly or by necessary implication. But a statute may
be challenged under Art 14 so it should be justifiable.

Exception by the constitutional provisions

The Constitution of India excludes the principles of natural justice in Art. 22,
31(A), (8). () and 311(2) as a matter of policy. Nevertheless, if the legislative
exclusion is arbitrary, unreasonable and unfair, courts may quash such a
provision under Art 14 and 21 of the Constitution.

Exception in case of legislative act.

A ground on which hearing may be excluded is that the action of the
administrative in question is legislative and not administrative in character.
Usually and order of general nature, and not applying to one or a few
specified persons, is regarded as legislative in nature. Legislative action
plenary or subordinate, is not subject to the rules of natural justice because
these rules lay down a policy without reference to a particular individual.

Exception in public interest or in case of need of prompt action or

in emergency

In cases of extreme urgency, where interest of the public would be

jeopardizes by the delay or publicity involved in a hearing, a hearing before
condemnation would not be required by natural justice or in exceptional cases
of emergency where prompt action, preventive or remedial, is needed, the
requirement of notice and hearing may be obviated. In situations where
dangerous buildings is to be demolished, or a company has to wound up to
save depositors or there is an eminent danger to peace or trade dangerous to
society is to prohibited, dire social necessity requires exclusion of elaborate
process of fair hearing. In the same manner where power theft was detected
by officials, Immediate disconnection of supply is not violative principles of
Natural Justice.

Exception in case of confidentiality

Where public policy demanded that certain information in possession of state
shall not be disclosed, as it is in the interest of security of the state.

Exception in cases of academic adjudication

If the competent academic authorities examine and asses the work of a
student over a period of time and declare his work unsatisfactory, the rules of
natural justice may be excluded.
Exception when no right of individual is infringed
Where no right has been conferred on person by any statute nor any such
right arises from common law the principles of natural justice are not
applicable.

Judicial Review of Administrative Action

In simple terms it is a review by judiciary, like when you see a review of new
phone, or a movie, what does that review tell you? It tells you if the movie or
phone is good or bad and gives reasons for it. So Judicial Review is when
judiciary reviews something.

Marbury v. Madison (1803), was a landmark U.S. Supreme Court case that
established the principle of judicial review in the United States, meaning that
American courts have the power to strike down laws, statutes, and some
government actions that they find to violate the Constitution of the United
States.

In L. Chandra Kumar v Union of India (1997) the issue was whether the
exclusion of the jurisdiction of the High Court through Articles 323-A (2) (d)
and 323-B (3) (d) was against the doctrine of judicial review, it was held that
the power of judicial review vested in the Supreme Court and High Courts by
Articles 32 and 226 respectively is a part of the basic structure of the
Constitution and supervision of the Supreme Court and High Court over these
Tribunals was also part of the basic structure of the Constitution.

Judicial Review can be divided into the following heads.

1. Judicial Review of Legislative Actions.

• Which we saw happening plenty of times when we studied 'basic

structure doctrine.

2. Judicial review of Judicial Actions.

• When Judiciary overrules any previous judgement.

3. Judicial Review of Administrative Actions.

When it comes to Judicial Review of Administrative actions GCHQ case

(Council of Civil Service v. Minister of Civil Services (1984)) is one of the
most landmark cases. In this case Lord Diplock held that even administrative
action is subject to judicial review if it is illegal, Irrational or has Procedural
Impropriety.

We have many grounds on basis of which courts can exercise judicial review
on administrative actions.
1. Illegality

2. Irrationality (Wednesbury Principle)

Up to 1947 the law in England was that the courts could Interfere only with
judicial or quasi-judicial decisions and not with administrative decisions. This
legal position changed after Associated Provincial Picture Houses Ltd. v.
Wednesbury Corpn. In which Lord Greene gave the Wednesbury Principle.

Wednesbury principle: Something so absurd that no sensible person could

ever dream that it lay within the powers of the authority. The courts often
intervene to quash as illegal the exercise of administrative discretion on the
ground that it suffers from "Wednesbury unreasonableness"

There may be degrees of unreasonableness, and the Wednesbury

unreasonableness refers only to the extreme degree of unreasonableness
which no sensible person could reach after taking into account the relevant
materials or relevant considerations.

3. Procedural Impropriety

It is a failure to comply with the laid down procedures. Procedural Impropriety

is to cover two areas which are failure to observe rules given in statute and to
observe the basic common-law rule of justice.

4. Violation of Natural Justice

NEMO JUDEX IN CAUSA SUA (Rule Against Bias) AUDI ALTERAM

PARTEM (Hear the other side)

5. Jurisdictional Error
Ultra vires- beyond one’s
legal power or authority

In case of lack of jurisdiction or abuse of jurisdiction. The court may reject an

administrative action on the ground of being ultra vires

6. Doctrine of Proportionality

When the concerned administrative action is more forceful than it requires to

be. The principle of proportionality implies that the court has to necessarily go
into the advantages and disadvantages of the action called into question.
Unless the administrative action is advantageous and in the public interest,
such an action cannot be upheld.
7. Doctrine of Legitimate Expectation.

This doctrine serves as a ground of judicial review to protect the interest when
a public authority rescinds from a representation made to a person.

Regina v. Liverpool Corporation ex parte Liverpool Taxi

Fleet Operators Association (1972)
The Corporation had given undertakings to the effect that the taxi drivers'
licenses would not be revoked without their prior consultation. But the
corporation acted in the breach of its undertaking. The court ruled that the taxi
drivers had a right to be consulted.

Scope of Judicial Review

We must note that there are certain administrative matters which are
inappropriate for judicial review. One of these is policy decisions of the
government or of the executive authority which ordinarily should not be
interfered with by the courts unless they are clearly violative of the statute or
shockingly arbitrary.

Union of India v. International Trading Co. (2003)

In this case the Central Government had initially decided to locate the
headquarters of South Western Railways at Bangalore. Later it was decided
to locate it at Hubli, and this decision was challenged. The Supreme Court
held that it was a policy decision and hence the Court cannot interfere, even if
the decision was political

B.A.L.C.O. Employees Union (regd.) v. Union of India (2006)

It was observed that it is neither within the domain of the courts nor the scope
of the judicial review to embark upon an enquiry as to whether a particular
public policy is wise or whether better public policy can be evolved, Courts
are not inclined to strike down a policy at the behest of a petitioner merely
because it has been urged that a different policy would have been fairer or
wiser or more scientific or more logical Unless the policy or action is
inconsistent with the Constitution and the laws or arbitrary or irrational or
abuse of the power, the Court will not interfere with such matters.

Similarly, maintenance of law and order is an executive function, and the

courts should not ordinarily interfere with the same.

Apart from that, practically every legal system recognises certain subjects as
inappropriate for judicial review e.g., foreign affairs, declaration of wars, etc.