ADMIN LAW

JUDICIAL CONTROL OVER ADMINISTRATIVE DELEGATED POWER

SAYYAN RABEEZ 17010324147

Division D

Batch- 2017-2022

Of Symbiosis Law School, Hyderabad

Symbiosis International University, PUNE

In September, 2019

Under the guidance of

Dr. Priyanka Mohod

 CERTIFICATE

The project entitled “JUDICIAL CONTROL OVER ADMINISTRATIVE

DELEGATED POWER ” submitted to Symbiosis Law School, Hyderabad for ADMIN LAW
as part of Internal Assessment is based on my original work carried out under the guidance of Dr.
Priyanka Mohod .The Research work has not been submitted elsewhere for award of any degree.
The material borrowed from other sources and incorporated in the research paper has been duly
acknowledged. I understand that I myself would be held responsible and accountable for plagiarism,
if any, detected later on.

Signature of the Candidate

Date:
 ACKNOWLEDGEMENT

I would like to take this opportunity to express my profound gratitude and deep regard to
our project guide professor Dr. Priyanka Mohod for her exemplary guidance, valuable
feedback and constant encouragement throughout the duration of the project. Her valuable
suggestions were of immense help throughout our project work. Her perceptive criticism
kept us working to make this project in a much better way. Working under her was an
extremely knowledgeable experience for me.
I would also like to acknowledge the works of the numerous scholars whose articles and papers

have been the backbone of this paper. I would like to thank the Library Staff of Symbiosis Law
School, Hyderabad as well for their cooperation.
JUDICIAL CONTROL OVER ADMINISTRATIVE DELEGATED POWER
INTRODUCTION
“Public Administration exercises a large number of power to meet the citizens need in modern
democratic welfare state. Today administration is not concerned with only pure administrative
function but also involved with a large number of quasi-legislative and quasi-judicial functions.
For this respect they have a number of chances to become arbitrary or master of the citizens. So
it is very necessary to control them. The existing control systems are legislative, executive and
judicial. This paper include only judicial control over administration. Pre-constitutional control
to post-constitutional judicial control found a big shift from the scrutiny of delegated legislation
confined to the area of sub-delegation from British Parliament to Indian legislature 8 and laying
down a fundamental principle of delegation in the post-constitutional era9 which can be stated as
follows:- “Legislatures cannot delegate their essential legislative powers. Essential legislative
powers relate to the determination of the policy of the legislature and of rendering that policy
into a binding rule of conduct”.10 In other words, delegation of legislative power can be
confined to ‘non-essentials’ or subsidiary matters. Delegation of legislative powers of essential
nature would be invalid. This has come as a first principle laid down in the area of judicial
control and subsequently expanded to a number of rules laid down by the judiciary. These
principles can be stated as follows:-

To what extent is the power exercised by the Administration

In modern times the administrative process as a by product of intensive form of government cuts
across the traditional forms of governmental powers and combines into one all the powers which
were traditionally exercised by three different organs of the state. In Hansberry’s Laws of
England also it is stated that howsoever the term the Executive' or 'the Administration' is
employed, there is no implication that the functions of the executive are confined exclusively to
those of an executive or administrative character. Today, the executive performs variegated
functions, viz. to investigate, to prosecute, to prepare and to adopt schemes, to issue and cancel
licenses, etc. (administrative); to adjudicate on disputes, to impose fine and penalty, etc.
(Judicial); to make rules, regulations and bye laws, to fix prices etc. (Legislative). Schwartz
rightly states that rulemaking (quasi-legislative) and adjudication (quasi-judicial) have become
the chief weapons in the administrative armory

Thus, Speaking generally, an administrative action can be classified into four categories;

(i) Rule - making action or quasi-legislative action;

(ii) Rule decision action or quasi-judicial action;
(iii) Rule-application action or administrative action; and
(iv) Ministerial action.
We can define the above forms of administrative action by the way: The legislative power as the
power to create rights, powers, privileges or immunities and their correlatives as well as status,
not dependent upon any previous rights, duties etc. (or for the first time), that is apparently, the
power of certain antecedent legal capacities and liabilities. Judicial power as the power to create
some right or duty dependent upon a previous right or duty, that is apparently the power to create
remedial legal capacities and liabilities. Administrative power is the power, which is concerned
mostly with the management and execution of public affairs. And the Ministerial power is that
power of the administration which is taken as a matter of duty imposed upon it by the law devoid
of any discretion or judgment. Therefore a ministerial action involves the performance of a
definite duty in respects of which there is no choice. Collection of revenue may be one such
ministerial action.

The above functions or power exercised by the following four ways mainly:

i) Rule making or Quasi-legislative action is exercised by the power of delegated legislation.

ii) Rule decision or Quasi judicial action is exercised by the administrative adjudicating power.
iii) Rule application or pure administrative action is exercised by the discretionary power.
iv) On the other hand ministerial power is one where law prescribes that the duty will be
performed in certain and specific terms and leaves nothing to discretion.

WHAT IS DISCRETION AND WHY?

Discretion is very necessary to accomplish administrative power because administrative

responsibility is also bound up with discretion. When an official has no power to choose among
alternatives, he cannot be held personally responsible because he has exercised no freedom of
choice. Discretion mean choosing from amongst the various available alternatives but with
reference to the rules of reason and justice and not according to personal whims. Such exercise is
not to be arbitrary, vague and fanciful, but legal and regular

In the context of welfare state exercise of administrative powers, more particularly,

administrative discretion, constitute the lifeblood of the whole governmental, functions.
Administrative power is what administrators think fit to do, it is administration own idea of
expediency, and it is incapable of being declared wrong in law by any higher authority

As government concern itself with the detailed ordering of the individuals in the society, with
the supply of services, with control of industry, and with particular circumstances of children, of
the aged, of the sick and of the unemployed, then a large amount of discretionary power becomes
necessary. It is realized that a government having only ministerial duties with no discretionary
functions, will be extremely rigid and unworkable and that, to some extent officials must be
allowed a choice as to when, how and where to act. The reason for this attitude is that more often
than not, the administration is required to handle intricate problems which require investigation
of facts, making choices and exercise of discretion before deciding upon what action to be taken.
3 More often, the legislation is sketchily, leaving many gaps and conferring powers on the
administration to act in a way it deems “necessary” or “reasonable” or “if it is satisfied” or “if it
is of the opinion”. The need for discretion arises because of the necessity to individualize the
exercise of powers by the administration, i.e. the administration has to apply vague or indefinite
statutory provisions, from case to case.

WHAT ARE THE SOURCES OF THE ADMINISTRATIVE POWER?

Since World War II, American administration has acquired increasing authority and power in the
formulation and implement of public policy. Administration derives its power from five major
sources: 1) Public constituents and Interest group, 2) The legislature branch of government, 3)
The executive branch of government, 4) The Expertise of its personnel, and 5) A massive,
multilevel civil service system. (Some writers suggest, in addition, the strategic position of
public administration and its discretionary powers in carrying out policy). These are not mutually
exclusive categories; an administrative agency can use any combination of them to further its
growth and goals. Moreover, sources of power vary from agency to agency and at different
levels of government.

1) Constituency and interest group support: A government agency must have the support,
or at least the acquiescence, of some constituency to become established and to service.
The constituency may consist of the general public, of special interest groups, or of both.
A public, constituency provides administration with power at any level of government as
long as citizens demand an increasing number of services from government agencies.
Discovery that use of the drug thalidomide by pregnant women can causes fetal
deformities, for example, aroused a tremendous public outcry against the dangers of
improperly tested drugs. While this, event not only justified the existence of food and
Drug Administration (FDA) but also helped it to obtain a large budget for drug testing, it
is among the rare instances in which regulatory activity has gained widespread popular
attention. More often, the public’s attitude toward individual government agencies is
merely vague and apathetic
2) Legislative Support: Several competent writers have described how bureaucracy 4
obtains legislative support is its ratio of success in gaining desired budget allocations. An
agency like the FBI, which is highly regarded by congress, is likely to receive, necessary
allocations of money, although high visibility is not required for agencies to enjoy
congressional respect; the Treasury Department’s Bureau of Customs and Bureau of
Public Debt both have strong congressional support

3) Executive Support: Concerned as they are with the control of resources, agencies within
the executive branch generally possesses considerable power. The civil service
commission controls personnel regulations. The General Services Administration
constructs and operates the majority of government buildings. The office of management
and Budget (OMB) not only controls major resources but has substantial power owing to
the size and expertise of its staff. Reorganized from the Bureau of the Budget in 1970, the
 OMB serves as presidential aide in budget preparation and guardian of the federal budget.
Its public administration specialists, lawyers, economists and political scientists act as
presidential shock troops in modifying or eliminating federal programs. Because other
executive agencies must clear their communications with congress through the OMB to
assure their consistency with the president’s policy goals, these other agencies may be
said to constitute the OMB’s constituency.

4) Personnel Expertise: Concentrated within the administrative agencies of government is

a vast reservoir of technical expertise that legislators and the president use for advice in
making policy decisions. The experts who provide this advice acquire power in a number
of ways.

5) Civil Service Support: The pioneers of public administration believed that

administrators should carry out policy but have no discretion to judge or act on their own.
With the increase in governmental autonomy, expertise, and constituency support,
however, bureaucratic discretion has now extended to deciding which new goals and
policies should be formulated as well as carried out. The civil service system has
supported this tendency by instituting better employee training for job qualification and
promotion which has in turn affected employee attitudes and discretion

JUDICIAL CONTROL OVER ADMINISTRATION: AN OVERVIEW

Civil Service Support: The pioneers of public administration believed that administrators should
carry out policy but have no discretion to judge or act on their own. With the increase in
governmental autonomy, expertise, and constituency support, however, bureaucratic discretion
has now extended to deciding which new goals and policies should be formulated as well as
carried out. The civil service system has supported this tendency by instituting better employee
training for job qualification and promotion which has in turn affected employee attitudes and
discretion

By judicial control is meant the power of the courts to examine the Legality of the officials act
and thereby to safeguard the fundamental and other essential rights of the citizens. The
underlying object of judicial review is to ensure that the authority does not abuse its power and
the individual receives just and fair treatment and not to ensure that the authority reaches a
conclusion, which is correct in the eye of law. The role of judiciary in protecting the citizens
against the excess of officials has become all the more important with the increase in the powers
and discretion of the public officials in the modern welfare states. But the courts cannot interfere
in the administrative activities of their own accord. They can intervene only when they are
invited to do so by any person who feels that his right has been abrogated or are likely to be
abrogated as a result of some action of the public official. Secondly, the courts cannot interfere in
each and every administrative act, as too much of Judicial action may make the official too much
conscious and very little of it may make them negligent of the rights of citizens. In the words of
Mr. L.D. White, "At one extreme, the vigor of judicial control may paralyze effective
administration, at the other the result may be offensive bureaucratic tyranny, exactly where the
balance may be best struck is a major problem of judicial administrative relationship. Now we
discuss the judicial control system in USA, U.K. and then Bangladesh.

FINALITY OF ADMINISTRATIVE DECISIONS

Although the Supreme Court has been content to permit a large degree of administrative finality
in old and tested fields where accepted principles and techniques of regulation prevail, it
maintains a watchful eye even on such venerable agencies as the Interstate commerce
commission. For example in a session the court consistently upheld administrative
determinations in the tried and tested area of railroad regulation. The court have, never the less
been reluctant to relinquish their right to exercise a final scrutiny of administrative action.

The administrative procedure Act (1946) particularly has expanded the scope of judicial review.
A complainant cannot ordinarily resort to the courts until he has exhausted all administrative
remedies. This is quite properly so, because to have recourse to the courts for purposes of mere
delay would soon deprived the administrative process of the dispatch which is one of its major
virtue. Section 10 of the administrative procedure Act, however, has a provision for "interim
relief" which apparently aims at undercutting this doctrine of the exhaustion of administrative
remedies.

To avoid "irreparable harm" every reviewing court is authorized to issue all orders necessary to
post pone the effective date of agency action or to preserve status or rights until conclusion of the
review proceedings. This complicities the administrative process and places a new emphasis
upon review by making it easier for individuals to go to the courts for declaratory judgments or
order before exhausting the remedies available through administrative action.

QUESTIONS OF LAW AND FACT

Courts have usually not examined questions of fact unless they also involved question of law or
questions of constitutional or statutory authority. Under the provisions of the Johnson Act, for
example, a federal district court is denied the power to issue an injunction against a state
administrative order when such an order

(1) affects rates chargeable by a public utility,

(2) des not interfere with interstate commerce,

(3) has been made after reason able notice and hearing, and
 (4) where a plain, speedy, and efficient remedy may by had at law or in equity in the courts of
such state.

This doctrine as applied to judicial review of tax errors, where there has been a failure to resort
to administrative remedies, has tended to expand the field of administrative finality. As a general
rule, courts have attempted to distinguished between questions of law and fact and have
reviewed the former but not the Later. Dickinson's conclusion is still useful: "when the courts are
unwilling to review, they are tempted to explain by the easy device of calling the question one of
'fact'; and when otherwise disposed, they say that is a question of 'law'."

IMPORTANT POINTS TO BE NOTED:

The Indian Constitution has established a Welfare State1 which mandates that the State shall
legislate on innumerable activities touching human lives in order to promote the ‘maximum
happiness of the maximum number of people’2. Consequently the State has to undertake
legislation on a variety of subjects. In view of this increasing legislative activity, the legislatures
will not find adequate time to legislate on every minute details and limit themselves to ‘policy
matters and leaving a large volume of area to executives to frame rules to carry out the purposes
of legislation. Thus, the need for delegation became indispensable and it was sought to be
justified on grounds of ‘speed’, flexibility and adoptability’. The application of law to changing
circumstances was made feasible through the instruments of ‘rules’ framed by the executive. It is
not a surprise to find that during the years (1973-77) spanning a period of 4 years Parliament
enacted 300 statutes but the rules framed by the executive exceeded 25000. This has been
observed by the apex court in the Arvind Singh’s case.3

Legislatures having delegated their powers, have to bear the responsibility to ensure that the
delegate shall not over-step the legitimate domain and commit a violation by exceeding or
abusing the powers delegated. Thus, the legislatures have to control the delegated legislation and
if not, executives may exercise the delegated power to become a potential dictator or even
becoming a parallel legislature. This legislative control over delegated legislation has become a
‘living continuity as a constitutional necessity’. The rule of majority in democratic systems have
virtually made legislative controls ineffective. A similar statement is found in Wade & Forsyth.4
A more serious observation has been made by Mr. Lloyd George to the effect that ‘legislatures
have no control over the executive”. All these observations are pointers to the view that had the
Parliamentary control over delegated legislature been effective, the need for judicial control
would not have arisen or probably reduced to the minimum. This has not been so, hence, judicial
control has become an inevitable necessity to prevent executives acting as super-legislatures or
potential dictators.

1
Principal & Dean, Faculty of Law, New Law College, Bharati Vidya Peeth University, Pune.
2
Bharat Bank Vs. Employees of Bharat Bank, AIR 1950 SC, P.306. See the observations of Justice Mukherjee.
3
AIR 1979 SC P.321.
4
See ‘Administrative Law’ (2009) 764-765.
Pre-constitutional control to post-constitutional judicial control found a big shift from the
scrutiny of delegated legislation confined to the area of sub-delegation from British Parliament to
Indian legislature5 and laying down a fundamental principle of delegation in the post-
constitutional era6 which can be stated as follows:-

“Legislatures cannot delegate their essential legislative powers. Essential legislative powers
relate to the determination of the policy of the legislature and of rendering that policy into a
binding rule of conduct”

In other words, delegation of legislative power can be confined to ‘non-essentials’ or subsidiary

matters. Delegation of legislative powers of essential nature would be invalid. This has come as a
first principle laid down in the area of judicial control and subsequently expanded to a number of
rules laid down by the judiciary. These principles can be stated as follows:-

i) If the law is ex-facie unconstitutional it cannot be legalized by a Parent Act which is

constitutional. In other words, an unconstitutional legislation cannot be legalized by a
valid Parent Act;7
ii) Rules farmed violating Parent Act are illegal;8
iii) Rules framed violating any other Statute or inconsistent with any other law are also
illegal and void;9
iv) Delegated legislation must be reasonable or do not suffer from unreasonableness.
This has been ruled in Chandra Bhan’s case;10
v) Delegated legislation shall not be arbitrary or suffer from arbitrariness 11. This is
necessary to protect the “rule of law”;
vi) Delegated legislation made with malaises or improper motives are held illegal; 12
vii) Forbidding sub-delegation and the powers being delegated13 or delegate exceeding
the powers14 are equally held void;
viii) ‘Finality clauses’ in Statutes or rules made there under, exclusive evidence, clauses15
or ‘as if enacted clauses16’ were also reviewed on the basis of their compliance with

5
Empress Vs. Burah (1877)3 Cal P.63 and Jitendranath Gupta Vs. Province of Bihar, AIR 1949 FC P.175.
6
In Re Delhi Law Act case AIR 1951 SC P.332.
7
Narendra Kumar Vs. Union of India, AIR 1969 SC P.430.
8
Municipal Corporation of Greater Bombay Vs. Nagpal Printing Mills AIR 1988 Sc P.1009.
9
Hindustan Times Vs. State of U.P. AIR 2003 SC P.250.
10
Ibid, AIR 1983 SC P.803
11
Indian Express Newspaper Vs. Union of India, AIR 1985 SC P.525.
12
D.C.Wadhwa Vs. State of Bihar, AIR 1991 Sc P.526. Issuing large number of ordinances was viewed as ‘colorable
exercise of powers by the executive’, disapproved by the apex court.
13
Ajaile Singh Vs. Gurubachan Singh AIR 1965 SC P.1619.
14
Radhakrishnan Laxminarayan Vs. State AIR 1952 Nag P.387.
15
Union of India Vs. Tarachand Gupta, AIR 1971 SC P.1558.
16
Latest decision of Keshavananda Bharati Vs. State of Kerala AIR 1961 Kerala P.23.
 the principles of natural justice and also in the light of Art 226 and Art 32 of the
constitution vesting powers in the High Courts and Supreme Court respectively.
Constitutionally vested jurisdiction cannot be taken away by ordinary legislation;
ix) ‘Retrospective effect17’ clauses giving effect to the law or rules with retrospective
effect. Such clauses not only reverses the reasonable anticipation of the people and
may also deprive people of their accrued rights;
x) Delegated legislation exercised being against public standards or public morality. (In
this case marks sheets of the daughter of CM were altered);
xi) Doctrines like ‘Proportionality’, legitimate expectations, and public accountability,
have become grounds of judicial review of the law and rules framed; and
xii) Cases have also been reviewed on the grounds of procedural ‘ultra vires’ i.e., not
following the procedures which are mandatory in framing the rules;

CONCLUSION

In the fitness of things, it would be proper to suggest that the rules laid down by the Judiciary
may be codified, so as to confine its powers to the norms already laid down. It is also necessary
that the Supreme Court must frame rules under Art 141, which would be law binding under Art
144 limiting its powers judiciously and not to overstep its legitimate sphere. In other words, self
–imposed rules by the supreme court may be a good solution to the problems of Judicial control
being made accountable, legitimate and confined to constitutional limits to protect and preserve
the Constitution and ‘rule of law’. It would be worthwhile to remember the famous observation
of Justice Frankfurter which is in these words: “Judicial review is not immune against human
weakness. It also must be on guard against encroaching beyond its bounds, and not the less so,
since only restraint upon it is self-restraint”. It is hoped that the apex court will frame rules
relating to its power of review in the sphere of delegated legislation, so that it could serve as
guidelines to all High Courts and also to the Govt., to keep in mind while framing rules as well
to the legislatures, while enacting laws. It will go a long way in preserving the constitutional
powers and the rule of law in a democratic society like ours.

17
B.S.Yadav’s Vase (1981) SCC (L&S) P.343