Administrative Process: Nature and Scope Notes | LL.M. Semester 2 | Mumbai University | munotes

Delegated legislation, or subordinate legislation. Law made not by the legislature but by an authority the legislature has empowered. Its usual names are rule, regulation, bye-law, notification, order and scheme. It is law, it binds, and it is void if it goes beyond the parent Act. Module III is about it.

Administrative action. A decision or act of the executive that is neither legislation nor adjudication: granting a licence, transferring an officer, sanctioning a payment, demolishing an unauthorised structure.

Quasi-judicial. An administrative function that has to be performed in a judicial manner: hearing the person affected, acting on evidence, and deciding fairly. The word means "as if judicial". It matters because the safeguards attach to it.

Ministerial act. An act in which the officer has no choice at all: registering a document that satisfies every statutory requirement, paying a sum a statute directs to be paid.

Discretion. A power to choose between courses of action that the law leaves open. Module IV is about it.

Ultra vires. Latin, "beyond the powers". An act or a rule made outside the authority conferred is void. It is the central idea of the whole subject.

Natural justice. Two rules the common law implies into a power affecting a person: that nobody may be a judge in their own cause, and that nobody may be condemned unheard.

Writ. A written command of a High Court under Article 226 or of the Supreme Court under Article 32, by which the administration is compelled to act lawfully. The five are habeas corpus, mandamus, prohibition, certiorari and quo warranto.

Tribunal. A body outside the ordinary court hierarchy, created by statute, that decides a defined class of disputes.

The scope of the administrative process, in four movements

The scope of the administrative process is best stated as the four movements below, because MU's own topic line asks for nature and scope together and the nature of the process is only visible in what it actually does.

One: rule-making. The legislature enacts a skeleton and the administration puts flesh on it. The Essential Commodities Act 1955 lets the Central Government control the price of an essential commodity; the Drugs (Prices Control) Order made under it is where the price actually appears.

Two: administration proper. Schemes are run, licences granted, subsidies paid, inspections carried out, officers posted. Most of what government does is here, and most of it never reaches a court.

Three: adjudication. The administration decides disputes: whether a dealer's licence should be cancelled, whether an assessee owes tax, whether a workman was properly retrenched. It decides them through officers, appellate authorities and tribunals.

Four: control. Every one of the first three is subject to control, and administrative law is largely the study of the controls. Parliament controls by questions, committees and the laying of rules. Courts control by judicial review under Articles 32 and 226. Internal hierarchy controls by appeal and revision. Independent bodies control by audit and inquiry.

A worked example

Sunita Kadam runs a small chemist's shop in Solapur. She wants to know why the price printed on a strip of a common antibiotic is what it is, and what she can do if the inspector cancels her licence.

Step one, the statute. Parliament passed the Essential Commodities Act 1955. Its section 3(1) lets the Central Government, by order, provide for regulating or prohibiting the production, supply and distribution of an essential commodity and for controlling its price, if it is of opinion that this is necessary or expedient for maintaining or increasing supplies or for securing equitable distribution and availability at fair prices. Drugs are an essential commodity under the Act.

Step two, the delegated legislation. Acting under section 3, the Government made a Drugs (Prices Control) Order. Sunita's antibiotic is priced under that Order and not under the Act. The Order is delegated legislation: made by the executive, binding like law, and void if it goes beyond section 3.

Step three, the administrative decision. A price is fixed for that drug by a notification. That is an act of the administration under a rule made by the administration under an Act of Parliament. Three layers, and only the first was made by the elected legislature.

Step four, adjudication. An inspector finds a shortage in Sunita's stock register and issues a notice proposing to cancel her licence. Whether she gets a hearing depends on whether the decision is quasi-judicial or administrative, which is Chapter [Classification of Administrative Action].

Step five, control. If the licence is cancelled without a hearing, or for a reason the Order does not permit, Sunita may move the High Court under Article 226. The court will not ask whether the cancellation was wise. It will ask whether it was lawful.

The leading cases

The two decisions below fix the outer edges of the process: how far executive power runs without a statute, and how far the safeguards of judicial procedure follow an administrative decision.

Facts. Rai Sahib Ram Jawaya Kapur v. State of Punjab, AIR 1955 SC 549, arose out of the Punjab Government's decision to take over the publication of school textbooks. Booksellers who had until then printed and sold the prescribed books complained that the government was carrying on a business without any Act of the legislature authorising it, and that their fundamental right to trade was infringed.

Held. The executive power of a State is not confined to executing laws already made. It extends to every subject on which the legislature of the State may make law, subject to the Constitution, and the government may act without a statute so long as it does not encroach on anyone's rights and does not need to spend money not authorised by the legislature. The taking over of textbook publication was therefore valid.

Why it matters here. It answers the beginner's first question, which is where administrative power comes from when there is no Act. Most of the process runs on statute, but not all of it, and this is the case that says so.

Facts. A.K. Kraipak v. Union of India, AIR 1970 SC 150, concerned selection to the Indian Forest Service from officers of the Jammu and Kashmir forest department. The Acting Chief Conservator of Forests sat on the Special Selection Board, as the Regulations required. He was also himself a candidate. He withdrew when his own name was considered, but took part when the claims of his rivals were considered, and took part in preparing the final list in order of preference. His name stood at the top of it; three rivals were left out.

Held. The selection was quashed. It is against all canons of justice to make a man a judge in his own cause. The real question is not whether he was in fact biased, which cannot be proved, but whether there was reasonable ground for believing he was likely to have been. The Court went further and said that the dividing line between an administrative power and a quasi-judicial power is thin and is being gradually obliterated, so that the principles of natural justice may apply to a purely administrative decision as well.

Why it matters here. It is the case that made administrative law about all administrative action and not only about a fenced-off quasi-judicial corner of it. Everything in this book about hearings, bias and fairness runs through Kraipak.

What the administrative process is NOT

It is not the same as administrative law. The process is what the administration does; administrative law is the body of rules governing what it may do and how it may be made to answer. The next chapter separates them.

It is not the executive alone. Tribunals, regulators, public corporations and statutory boards are all inside it, and several of them are not part of any ministry.

It is not confined to what is unlawful. Most administration is perfectly lawful and never litigated. A book that treats the subject as a catalogue of things courts have struck down teaches a distorted picture.

It is not a lower kind of law. The rule that fixes the price of Sunita's antibiotic binds exactly as an Act of Parliament binds, and the only difference is that it can be tested against its parent Act while an Act cannot.

Quick revision

1. The administrative process is the whole activity by which the executive gives practical effect to legislative policy.
2. Its four movements are rule-making, administration proper, adjudication and control.
3. It grew because of the scale and the technicality of modern government.
4. Delegated legislation is law made by an authority the legislature empowered: rule, regulation, bye-law, notification, order.
5. Quasi-judicial means an administrative function that must be performed in a judicial manner.
6. Ultra vires means beyond the powers, and an act or rule made outside the authority conferred is void.
7. Ram Jawaya Kapur, AIR 1955 SC 549: executive power is co-extensive with legislative power and does not always need a statute.
8. Kraipak, AIR 1970 SC 150: the line between administrative and quasi-judicial is thin and is being obliterated, and natural justice can apply to administrative action.

Test yourself

1. Define the administrative process in the wording you would use in an examination. It is the whole body of activity by which the executive branch of the State gives practical effect to legislative policy: rule-making of a legislative character, adjudication of a quasi-judicial character, and executive and ministerial action, carried on by ministries, departments, statutory authorities, regulators, public corporations and tribunals under powers conferred by the Constitution or by statute.

2. Name the four movements of the process and give one example of each. Rule-making, as in the Drugs (Prices Control) Order made under section 3 of the Essential Commodities Act 1955; administration proper, as in the grant of a chemist's licence; adjudication, as in the cancellation of that licence after notice; and control, as in a writ petition under Article 226 against the cancellation.

3. What is the difference between an administrative act, a quasi-judicial act and a ministerial act? An administrative act is executive action leaving a choice to the officer. A quasi-judicial act is administrative in origin but must be done in a judicial manner, with notice, hearing and a decision on evidence. A ministerial act leaves no choice at all: the officer must do the thing on the conditions being satisfied.

4. Why did the growth of the welfare State enlarge the administrative process? Because a State that regulates industry, prices, employment, health, education and social security must take millions of individual decisions and must fix thousands of technical standards, neither of which a legislature sitting for a few dozen days a year can do itself.

5. State the proposition in Kraipak in one sentence, and say why it matters. The dividing line between an administrative power and a quasi-judicial power is thin and is being gradually obliterated, so that natural justice may apply to administrative action as well; it matters because it extended the safeguards of the subject beyond the narrow class of decisions that had previously attracted them.

Holland's image is the one students remember: constitutional law describes the State at rest, administrative law the State in motion. It is useful and it is incomplete, because a great deal of administrative law is itself constitutional. Judicial review of administrative action in India rests on Articles 32 and 226; the equality guarantee that strikes down arbitrary administrative decisions is Article 14; the protection of a civil servant is Article 311; the tribunals are Articles 323A and 323B.

The truthful statement is that in India the two overlap heavily, and that administrative law is best understood as the part of constitutional law that has grown large enough to be studied on its own. In England, with no written constitution, the whole of what we call constitutional law is judge-made, so the distinction there is even less useful. In the United States the constitutional structure is separate but the Administrative Procedure Act supplies a code, which India has never had.

Where Indian administrative law actually comes from

The Constitution. Articles 245 and 246 for the power to legislate and therefore to delegate; Article 13 which makes law that offends fundamental rights void, and which by Article 13(3)(a) includes an order, rule, bye-law, regulation and notification; Article 14 for arbitrariness; Article 19 for the reasonable restrictions that regulation must satisfy; Article 21 for procedure established by law; Articles 32 and 226 for the remedies; Article 265 for taxation; Article 300A for property; Articles 309 to 311 for the services; Articles 323A and 323B for tribunals.

Statutes. No general Act, but hundreds of particular ones, each conferring powers and each carrying its own procedure. The Essential Commodities Act 1955, the Administrative Tribunals Act 1985, the Right to Information Act 2005, the Telecom Regulatory Authority of India Act 1997.

Delegated legislation. Rules and regulations by the thousand, which are both a product of administrative law and a source of it.

Judicial decisions. The largest single source. The grounds of review, the doctrine of legitimate expectation, the standard of proportionality and the reach of natural justice are all judge-made.

Reports and recommendations. The Law Commission of India and the Administrative Reforms Commission have shaped much of the statutory framework, and are not themselves law.

A worked example

Ramesh Pawar is issued a demand for a fee by a municipal authority in Maharashtra. He wants to challenge it. Two different questions arise, and they belong to two different subjects.

The constitutional question. Had the State Legislature power to authorise the levy at all? That depends on Article 246 and the entries in List II of the Seventh Schedule, and on Article 265, which says no tax shall be levied or collected except by authority of law. If the answer is no, the statute itself falls, and every demand under it falls with it. That is constitutional law.

The administrative law question. Assuming the statute is valid, did this authority follow the procedure the Act lays down, did it give Ramesh the hearing the Act or natural justice required, did it consider the right matters, and is the amount within the maximum the Act permits? If the answer to any of these is no, this demand falls, and the statute stands. That is administrative law.

Notice that the second question is the one that decides most real disputes. Statutes are struck down rarely; orders under them are quashed every day.

What it does NOT mean

Administrative law is not the law made by the administration. That is delegated legislation, which is one of its subjects. The confusion is common and it is fatal in an answer.

Administrative law is not only judicial review. Review is the most visible control and the one the cases are about, but parliamentary control, internal appeal, audit, the Right to Information Act and the ombudsman institutions are all part of the subject.

It is not a branch of private law. The State's liability in contract and in tort is studied here, but the questions are public law questions, because one of the parties holds power the other does not.

Constitutional law does not stop where administrative law begins. In India every administrative law argument of any weight ends in a constitutional provision.

Limits and criticism

The absence of a code is a real weakness. The United States has the Administrative Procedure Act 1946 and Germany has its Verwaltungsverfahrensgesetz of 1976. India has neither, so the procedure an authority must follow has to be gathered from the particular statute and from the common law of natural justice, and it differs from statute to statute. The Law Commission has more than once suggested a general statute on administrative procedure, and none has been enacted.

The reliance on judicial review has a cost. A citizen must go to court to get the benefit of most of this subject, and going to court takes money and years. That is why the accountability machinery in Chapter [The Machinery of Accountability] matters as much as the case law.

Quick revision

1. Administrative law determines the organisation, powers and duties of administrative authorities, prescribes the procedure for exercising those powers, and provides the remedies.
2. Jennings defines it by field, Davis by machinery, Wade and Forsyth by purpose, which is the control of governmental power.
3. Holland's image: constitutional law is the State at rest, administrative law the State in motion.
4. In India the two overlap heavily, because judicial review, equality, service protection and tribunals are all constitutional.
5. Sources: the Constitution, hundreds of statutes, delegated legislation, and above all case law.
6. India has no general code of administrative procedure, unlike the United States and Germany.
7. The constitutional question is whether the power exists; the administrative law question is whether it was properly exercised.

Test yourself

1. Define administrative law and defend your definition against one criticism. It is the branch of public law determining the organisation, powers and duties of administrative authorities, prescribing the procedure for exercising those powers, and providing remedies to a person aggrieved. The criticism of Jennings's version is that it is so wide it swallows constitutional law; the answer is to add the purpose Wade and Forsyth state, that its object is to keep governmental power within legal bounds for the protection of the citizen, which distinguishes it from the study of the structure of the State.

2. Distinguish constitutional law from administrative law on four points. Subject: the structure of the State against the operation of one organ. Level: framework against operation. Source: one document against many statutes and much case law. Typical question: whether the power exists at all against whether it was properly exercised.

3. Why is the distinction weaker in India than the textbook image suggests? Because the whole apparatus of Indian administrative law is constitutional: Articles 32 and 226 supply the remedies, Article 14 supplies the standard against arbitrariness, Article 311 protects the civil servant, and Articles 323A and 323B create the tribunals.

4. Name four sources of Indian administrative law and say which is largest. The Constitution, statutes, delegated legislation and judicial decisions, with reports of the Law Commission and the Administrative Reforms Commission as a persuasive fifth. Judicial decisions are the largest single source, because the grounds of review, legitimate expectation, proportionality and the reach of natural justice are all judge-made.

5. What does India lack that the United States and Germany have, and what follows from the lack? A general statute of administrative procedure. It follows that the procedure an authority must follow has to be found in the particular Act and in the common law of natural justice, and so differs between authorities, which makes the law less predictable for a citizen than it needs to be.

Technology. Aviation, broadcasting, electricity, telecommunications, pharmaceuticals and finance are all activities in which the standard has to be set by people who understand the subject, and reset as the subject changes.

The welfare State

A welfare State is one that accepts responsibility for the economic and social wellbeing of its people. It is also called the service State, because it delivers services, and the positive State, because it acts rather than merely refrains.

Its functions are conventionally grouped in four.

Regulatory. Controlling private activity in the public interest: licensing, standard setting, price control, competition, environmental limits.

Provider. Supplying goods and services directly: schools, hospitals, water, electricity, transport, food distribution.

Entrepreneur. Carrying on economic activity itself, through public corporations and government companies.

Umpire. Deciding disputes that arise out of the first three, through officers, appellate authorities and tribunals.

Every one of the four generates administrative law. The regulatory function generates delegated legislation and licensing. The provider function generates entitlement, distribution and the machinery for complaint. The entrepreneur function generates the whole question of when a public corporation is the State. The umpire function generates natural justice, tribunals and judicial review.

The Indian version, which is not a copy of the English one

India did not drift into the welfare State. It chose it, in writing, in 1950.

Part IV of the Constitution puts the choice into the text. Article 38 directs the State to secure a social order in which justice, social, economic and political, shall inform all the institutions of national life, and to minimise inequalities in income, status, facilities and opportunities. Article 39 directs it to secure adequate means of livelihood, the distribution of material resources to subserve the common good, and the prevention of the concentration of wealth. Article 41 directs it to secure the right to work, to education and to public assistance in cases of unemployment, old age, sickness and disablement. Article 43 speaks of a living wage and conditions of work ensuring a decent standard of life. Article 46 requires the promotion of the educational and economic interests of the weaker sections, and Article 47 makes the raising of the level of nutrition and public health a primary duty.

Those directions are not enforceable in a court, being Directive Principles, but Article 37 declares them fundamental in the governance of the country and makes it the duty of the State to apply them in making laws. A State given those instructions had to build an administration capable of carrying them out, and the whole apparatus of Indian administrative law follows from it.

Planning was the chosen method. The Planning Commission was set up in 1950 and successive Five Year Plans set targets across the economy. Planning by its nature means allocation, and allocation means licences, permits, quotas and controls, each of which is an administrative power exercised over a private citizen.

A worked example

Compare what happens to one activity, the sale of a medicine, under each model.

Under the police State. The seller sells. If the medicine is harmful, a buyer who is injured may sue in tort or for breach of contract, and may prosecute for cheating if there was a fraud. The State does not know what is being sold, does not test it, does not licence the seller, and does not fix the price. Its officials do nothing until a court is moved.

Under the welfare State. The manufacture is licensed. The formula is approved. The plant is inspected. The label is prescribed. The price is fixed by an order under the Essential Commodities Act 1955. The seller holds a licence which can be suspended. An inspector may enter and take samples. A national authority may recall the drug. Every one of those is an administrative power over a private person, and every one of them needs a rule to define it, an officer to exercise it, a procedure to make it fair, and a remedy if it is abused.

The second model protects the buyer far better than the first. It also creates a State that can ruin the seller without ever going to court, and administrative law exists because of that second fact.

The cost, stated honestly

Discretion replaces rule. A licensing power is a power to say no, and the wider the power the harder it is to predict.

Legislation moves out of the legislature. The details are in rules made by officials, and Module III is about the consequences.

Adjudication moves out of the courts. Tribunals and departmental authorities decide, and the safeguards have to be rebuilt for them.

The citizen is faced with an opponent who holds the file. The State knows what it did and why; the citizen often does not, which is why the Right to Information Act 2005 belongs in this subject.

The reverse movement, which MU examines separately

From about 1991 the Indian State began to withdraw from parts of what it had taken on: industrial licensing was largely abolished, public sector monopolies were opened, and sectors were handed to independent regulators. That is MU's second printed topic and it is Chapter [The 1991 Reforms] onwards. It is not a return to the police State. It is a change in technique, from the State running an industry to the State regulating an industry, and it produced a new kind of administrative body rather than fewer of them.

What this does NOT mean

It does not mean the police State had no law. It had a great deal of law. It had very little administration, which is a different thing.

It does not mean the welfare State is a modern invention. Elizabethan poor relief and the Indian rulers' famine codes were welfare functions. What is modern is the scale and the permanence.

It does not mean administrative law is against the welfare State. Administrative law exists to make the welfare State work lawfully. A book that treats every administrative power as a threat has misunderstood its own subject.

Quick revision

1. The police or laissez faire State had three functions: defence, order and justice, with revenue to pay for them.
2. It was broken by industrialisation, urbanisation, the two World Wars, universal franchise and technology.
3. The welfare State has four functions: regulator, provider, entrepreneur and umpire.
4. India chose the welfare State in writing: Articles 38, 39, 41, 43, 46 and 47, made fundamental in governance by Article 37.
5. Planning was the method, and planning means licences, permits and quotas.
6. The cost is discretion in place of rule, legislation outside the legislature, and adjudication outside the courts.
7. The 1991 reforms reversed the technique, not the direction: regulation replaced ownership.

Test yourself

1. Define the police State and the welfare State, and give the functions of each. The police or laissez faire State confines itself to defence, the maintenance of order, the administration of justice and the raising of revenue. The welfare or service State accepts responsibility for the economic and social wellbeing of its people, and performs four functions: regulator, provider of services, entrepreneur, and umpire of the disputes the first three generate.

2. Name five causes of the growth of the administrative process. Industrialisation, which made inspection necessary; urbanisation, which made sanitation and housing public problems; the two World Wars, which normalised central direction of the economy; universal franchise, which made government answerable for delivery; and technology, which put the setting of standards beyond a legislature's competence.

3. Which provisions of the Indian Constitution commit the State to the welfare model, and are they enforceable? Articles 38, 39, 41, 43, 46 and 47 in Part IV. They are not enforceable in a court, because Article 37 excludes enforceability, but the same Article declares them fundamental in the governance of the country and makes it the duty of the State to apply them in making laws.

4. State three costs of the welfare State for administrative law. Wide discretion replaces predictable rule; the bulk of law-making moves from the legislature to the executive as delegated legislation; and adjudication moves from courts to tribunals and departmental authorities, so the procedural safeguards have to be rebuilt in a new setting.

5. Did the 1991 reforms return India to the police State? Give a reason. No. They changed the technique of intervention rather than abandoning intervention: industrial licensing was largely abolished and public monopolies opened, but sectors were handed to independent statutory regulators with rule-making, licensing and adjudicatory powers, so the State continued to control the same activities by a different instrument.

The Statutory Instruments Act 1946 followed, giving delegated legislation a uniform name, form, numbering, printing and laying procedure. A Select Committee on Statutory Instruments had already been created in 1944.

The Crown Proceedings Act 1947 removed the old immunity by which the Crown could not be sued in tort and could be sued in contract only by petition of right. It is the single most important statutory change for a citizen with a claim against the English State, and Chapter [Redress Against the State in the United Kingdom and France] returns to it.

The Committee on Administrative Tribunals and Enquiries, chaired by Sir Oliver Franks, was appointed in 1955 and reported in 1957. Its contribution was three words that have travelled everywhere: tribunals and inquiries should be characterised by openness, fairness and impartiality. It recommended a standing council to supervise tribunals, reasons for decisions, and appeals on points of law. The Tribunals and Inquiries Act 1958 enacted much of it and created the Council on Tribunals.

The Parliamentary Commissioner Act 1967 created the office usually called the Parliamentary Ombudsman, to investigate complaints of maladministration referred by Members of Parliament. It is the model most later ombudsman institutions copy.

Period four: the judicial revival, 1963 onwards

Between the wars the courts had narrowed their own jurisdiction. They had come to hold, on a reading of Lord Hewart's judgment in Rex v. Legislative Committee of the Church Assembly, [1928] 1 KB 411, that natural justice applied only where a body had a duty to act judicially superadded to its duty to decide. Since most modern statutes said nothing about acting judicially, most modern powers escaped.

Facts. Ridge v. Baldwin, [1964] AC 40, on appeal from [1963] 1 QB 539, arose out of the dismissal of a chief constable by the Watch Committee. He was given no notice of the charge against him and no hearing. It was argued that a hearing could have made no difference, because on the undeniable facts no reasonable body of men could have reinstated him.

Held. The dismissal was void. Lord Reid held that the supposed requirement of a superadded duty to act judicially rested on a misunderstanding of Atkin LJ's earlier observations and was contrary to the earlier authorities, so that the duty to act fairly arises from the nature of the power and its effect on the person affected. The argument that a hearing would have made no difference was rejected: had the Committee heard him it would not have acted unreasonably had it chosen a more lenient course. Lord Reid also rejected the objection that natural justice is too vague to have content, saying that the idea of negligence is equally insusceptible of exact definition.

Why it matters here. It restarted English administrative law. Everything after it, in England and in India, assumes that a power affecting a person carries a duty to act fairly unless the statute clearly excludes it. The Supreme Court of India treats it as the turning point in terms: Maneka Gandhi v. Union of India, AIR 1978 SC 597, calls it the epoch-making decision which marks a turning point in the history of the development of the doctrine of natural justice.

Three further decisions completed the modern structure, and each is worked in the chapter that owns it.

Anisminic (1969) held that a decision reached by asking the wrong question is a nullity, so an ouster clause does not protect it: Chapter [Judicial Control: Substantive Ultra Vires].

Padfield (1968) held that no statutory discretion is unfettered and that it must be exercised to promote the policy and objects of the Act: Chapter [Abuse of Discretion: Irrelevant Considerations and Non-Application of Mind].

The GCHQ case (1984) classified the grounds of review as illegality, irrationality and procedural impropriety: Chapter [Judicial Review of Administrative Discretion in India].

Period five, which most notes stop before

The Constitutional Reform Act 2005 ended the position under which the Lord Chancellor was simultaneously a minister, the Speaker of the House of Lords and the head of the judiciary, and moved the highest court out of the legislature into a separate Supreme Court of the United Kingdom, which began work in 2009. Chapter [Separation of Powers in the United Kingdom] returns to it.

The Tribunals, Courts and Enforcement Act 2007 replaced the scattered tribunals with a unified two tier structure, a First-tier Tribunal and an Upper Tribunal, with judicial office holders and an appeal on a point of law. It is the most complete modern answer to the Franks Committee.

A worked example

Trace one grievance through the four periods.

In 1900 a citizen whose property was taken for a public work under a special Act could complain to the department and could sue in the ordinary courts if a legal right was infringed. If the Crown itself was the defendant in tort, the action failed at the threshold. There was no tribunal, no ombudsman and no general duty to give reasons.

In 1935 the taking would be under a general Act, the details would be in a statutory rule, an objection would be heard at a local inquiry by an inspector, and the minister would decide. The citizen could not see the inspector's report, could not compel reasons, and could not sue the Crown in tort.

In 1960 the rule would be a numbered statutory instrument laid before Parliament, the inquiry would follow rules made under the Tribunals and Inquiries Act 1958, reasons would have to be given on request, and the Crown could be sued in tort under the Crown Proceedings Act 1947.

Today the citizen may in addition complain of maladministration to the ombudsman, appeal to a tribunal under the 2007 Act, and seek judicial review on the grounds of illegality, irrationality and procedural impropriety.

What this does NOT mean

It does not mean England now has a code. There is still no English equivalent of the American Administrative Procedure Act. The grounds of review remain judge-made.

It does not mean Dicey was simply a fool. His second proposition, that officials are subject to the ordinary law, remains the difference between the English system and the French one, and it is why England still has no separate hierarchy of administrative courts.

It does not mean the tribunals are courts. They are outside the ordinary hierarchy even after 2007, and their supervision by the High Court is what keeps them lawful.

Quick revision

1. Dicey in 1885 denied that England had administrative law; he was wrong, and conceded part of it later.
2. Between the wars powers expanded enormously; Hewart's The New Despotism (1929) attacked this and Robson's Justice and Administrative Law (1928) defended it.
3. The Donoughmore Committee on Ministers' Powers reported in 1932 on delegated legislation and administrative adjudication.
4. The Statutory Instruments Act 1946 standardised delegated legislation; the Crown Proceedings Act 1947 made the Crown suable.
5. The Franks Committee reported in 1957 and gave the standard of openness, fairness and impartiality; the Tribunals and Inquiries Act 1958 followed.
6. The Parliamentary Commissioner Act 1967 created the ombudsman.
7. Ridge v. Baldwin, [1964] AC 40, restarted the subject by removing the superadded duty to act judicially.
8. The Constitutional Reform Act 2005 and the Tribunals, Courts and Enforcement Act 2007 are the modern structural reforms.

Test yourself

1. Set out the four periods of English administrative law with a date for each. Denial, from Dicey in 1885 to about 1929. Expansion, 1914 to 1939, driven by war powers and the welfare statutes. The inquiries, 1929 to 1957, being Donoughmore in 1932 and Franks in 1957 with the Acts of 1946, 1947 and 1958. Judicial revival, from Ridge v. Baldwin in 1963 onwards.

2. What did the Donoughmore Committee and the Franks Committee each examine, and what is each remembered for? Donoughmore examined delegated legislation and administrative adjudication, and is remembered for accepting both as inevitable while recommending safeguards, in particular that the Henry VIII clause be used only exceptionally and be limited in time. Franks examined tribunals and inquiries and is remembered for the standard of openness, fairness and impartiality.

3. Why is the Crown Proceedings Act 1947 important to a citizen? Because before it the Crown could not be sued in tort at all and could be sued in contract only by petition of right, so a person injured by the negligence of a servant of the Crown had no action against the Crown itself.

4. State the holding in Ridge v. Baldwin and explain why it was a turning point. That the duty to act fairly arises from the nature of the power and its effect on the person affected, and does not require a superadded duty to act judicially, which Lord Reid held had been read into the earlier cases on a misunderstanding. It was a turning point because that supposed requirement had excluded natural justice from most modern statutory powers.

5. Name two English reforms after 2000 and say what each changed. The Constitutional Reform Act 2005, which separated the highest court from the legislature and reformed the office of Lord Chancellor; and the Tribunals, Courts and Enforcement Act 2007, which unified the tribunals into a First-tier Tribunal and an Upper Tribunal with an appeal on a point of law.

Period two: the New Deal, 1933 to 1945

The Depression produced agencies by the dozen, with powers over banking, securities, agriculture, labour relations, electricity and public works. The lawyers of the period divided exactly as English lawyers had, and the American equivalent of Lord Hewart's attack was the argument that the agencies combined functions that ought to be separated.

The response was a decade of study, culminating in the report of the Attorney General's Committee on Administrative Procedure in 1941, which is the direct ancestor of the 1946 Act.

Period three: the Administrative Procedure Act 1946

The Act is the thing India does not have, and an LL.M. answer on comparative administrative law should be able to say what is in it.

Rule-making. Section 553 requires an agency proposing a rule to publish notice of it in the Federal Register, to give interested persons an opportunity to submit comments, and to publish the final rule with a concise general statement of its basis and purpose. This is notice and comment rule-making, and it is the single feature of American practice most often recommended for India.

Adjudication. Sections 554 to 557 govern formal adjudication: notice, a hearing before an administrative law judge who is insulated from the agency's prosecuting side, a decision on the record, and separation of the investigating and deciding functions inside the agency.

Judicial review. Sections 701 to 706 make agency action reviewable and set out the grounds. Section 706 directs a reviewing court to set aside agency action found to be arbitrary, capricious, an abuse of discretion or otherwise not in accordance with law, contrary to a constitutional right, in excess of statutory authority, without observance of procedure required by law, or unsupported by substantial evidence.

The Freedom of Information Act 1966 was later inserted into the same Act, and is the ancestor of India's Right to Information Act 2005.

Period four: deference, 1984 to 2024

This is the part of American administrative law that changed inside the last three years, and a student writing in 2026 who states the old position states the law wrongly.

Facts. Chevron U.S.A. Inc. v. Natural Resources Defense Council Inc., 467 U.S. 837 (1984), concerned the Environmental Protection Agency's regulations under the Clean Air Act Amendments of 1977. Those Amendments required States that had not met national air quality standards to run a permit programme for new or modified major stationary sources. The agency's 1981 regulations let a State adopt a plantwide definition of stationary source, the so-called bubble concept, so that a plant could modify one device without a permit if total emissions did not rise. The Court of Appeals set the regulations aside as contrary to law.

Held. The regulations were upheld, and the Court laid down a two step method. First, always, is the question whether Congress has directly spoken to the precise question at issue; if the intent of Congress is clear, that is the end of the matter, and the court and the agency alike must give effect to it. If Congress has not directly addressed the precise question, the court does not simply impose its own construction, but asks whether the agency's answer is based on a permissible construction of the statute.

Why it matters here. For forty years it was the most cited case in American administrative law, and it stood for the proposition that where a statute is ambiguous the agency, and not the court, chooses among the permissible readings.

Facts. Loper Bright Enterprises v. Raimondo, decided on 28 June 2024, arose out of a rule made by the National Marine Fisheries Service under the Magnuson-Stevens Act requiring herring vessels to pay for the observers carried on board. The reviewing courts had applied the Chevron framework to uphold the rule. The Supreme Court took the cases on the single question whether Chevron should be overruled or clarified.

Held on Chevron. Chevron is overruled. The Administrative Procedure Act requires courts to exercise their independent judgment in deciding whether an agency has acted within its statutory authority, and courts may not defer to an agency's interpretation of the law simply because a statute is ambiguous. The Court rested this on Article III and on Marbury, quoting Chief Justice Marshall that it is emphatically the province and duty of the judicial department to say what the law is.

Why it matters here. It is the largest change in American administrative law in forty years, it happened after most Indian textbooks on this syllabus were printed, and it is directly useful in an Indian answer: it shows a system deciding that the reviewing court, and not the expert agency, is the final interpreter of the statute, which is the position Indian law has always taken.

A worked example: one rule, two systems

An Indian regulator and an American agency each decide to require a disclosure from every firm in a sector.

In the United States. The agency must publish the proposed rule in the Federal Register, receive and consider comments, publish the final rule with a statement of its basis and purpose, and defend it if challenged against the grounds in section 706. A court asked whether the statute authorises the rule now decides that question for itself, after Loper Bright.

In India. Whether the regulator must consult depends entirely on the particular Act. Some, such as the Telecom Regulatory Authority of India Act 1997, provide for consultation; many do not. There is no general requirement of notice and comment, no general requirement of a statement of reasons for a rule, and no single list of grounds of review: the grounds come from the case law and are gathered in Chapter [Judicial Control: Substantive Ultra Vires].

What this does NOT mean

It does not mean American agencies are unaccountable. They are subject to a code India lacks, to congressional oversight, and to a review that is now stricter than it was.

It does not mean Chevron was about deferring on facts. It was about deferring on the meaning of a statute. Deference to an agency's findings of fact, and to its policy choices, survives Loper Bright.

It does not mean India should copy the Act wholesale. The American separation of powers is rigid and the Indian one is not, and a code written for one will not simply transplant into the other.

Quick revision

1. The Interstate Commerce Act 1887 created the first independent regulatory commission and with it American administrative law.
2. The New Deal from 1933 multiplied the agencies and produced the objection that they combine legislative, executive and judicial power.
3. The Administrative Procedure Act 1946 is the code: notice and comment rule-making under section 553, formal adjudication under sections 554 to 557, and judicial review under sections 701 to 706.
4. Section 706 lists the grounds: arbitrary, capricious, abuse of discretion, not in accordance with law, unconstitutional, in excess of authority, without required procedure, or unsupported by substantial evidence.
5. Non-delegation is policed by the intelligible principle test, which has struck down a federal statute only twice, both in 1935.
6. Marbury v. Madison, 5 U.S. 137 (1803): it is the province and duty of the judicial department to say what the law is.
7. Chevron, 467 U.S. 837 (1984): two steps, clear congressional intent first, then permissible agency construction.
8. Loper Bright, decided on 28 June 2024: Chevron is overruled; courts must exercise independent judgment on whether an agency acted within its statutory authority.

Test yourself

1. Name the four periods of American administrative law and date each. The independent commission, from the Interstate Commerce Act 1887 to about 1932; the New Deal expansion, 1933 to 1945; the code, being the Administrative Procedure Act 1946; and the deference argument, from Chevron in 1984 to its overruling in Loper Bright in 2024.

2. What are the three main things the Administrative Procedure Act 1946 regulates? Rule-making, by notice and comment under section 553; formal adjudication, under sections 554 to 557, before an administrative law judge with the investigating and deciding functions separated; and judicial review, under sections 701 to 706, with the grounds listed in section 706.

3. State the two steps of Chevron and say what has happened to them. Step one, whether Congress has directly spoken to the precise question at issue, in which case that intent governs. Step two, if not, whether the agency's answer is based on a permissible construction of the statute. Loper Bright overruled the doctrine in 2024, holding that the Administrative Procedure Act requires courts to exercise independent judgment and that they may not defer merely because a statute is ambiguous.

4. Why is the American separation of powers a problem for the administrative agency, and how is it managed? Because an agency that makes rules, enforces them and adjudicates under them exercises all three powers that Articles I, II and III vest separately. It is managed by the non-delegation doctrine, which requires Congress to lay down an intelligible principle, and by procedural safeguards inside the agency, in particular the separation of the investigating and deciding functions in formal adjudication.

5. Name two features of American practice that India does not have, and say what follows. Notice and comment rule-making, and a single statutory list of grounds of review. It follows that in India whether a regulator must consult before making a rule depends on the particular Act, and that the grounds on which a rule or an order may be set aside have to be gathered from case law rather than read off a section.

It set the standards. Article 14 for equality, Article 19 for the freedoms and the reasonable restrictions on them, Article 21 for life and personal liberty, Article 265 for taxation, Article 300A after 1978 for property, Articles 309 to 311 for the services.

It stated the purpose. Part IV directed the State to build a welfare order, which is what created the administration that Parts III and the writ jurisdiction then had to control.

Period three: judicial expansion, about 1967 to 1980

This is the period that produced most of the doctrine an Indian student learns, and it can be told through four decisions.

Facts. A.K. Kraipak v. Union of India, AIR 1970 SC 150, arose out of selection to the Indian Forest Service. The Acting Chief Conservator of Forests sat on the Special Selection Board and was himself a candidate. He withdrew when his own name was taken up, but sat when his rivals' claims were considered and when the final list was prepared in order of preference.

Held. The selection was quashed. It is against all canons of justice to make a man a judge in his own cause, and the test is not whether he was actually biased but whether there was reasonable ground for believing he was likely to have been. The dividing line between administrative power and quasi-judicial power is thin and is being gradually obliterated.

Why it matters here. It ended the doctrine that natural justice applied only to a fenced-off class of quasi-judicial decisions, and so brought ordinary administrative action inside the subject.

Facts. Maneka Gandhi v. Union of India, AIR 1978 SC 597, concerned the impounding of a passport by the Regional Passport Officer under section 10(3)(c) of the Passports Act 1967, in the public interest, without giving the holder any reasons and without any hearing.

Held. The order could not stand as it was. Articles 14, 19 and 21 are not watertight compartments and must be read together, so that a procedure established by law under Article 21 must be right, just and fair and not arbitrary, fanciful or oppressive. Natural justice applies to administrative action entailing civil consequences, and the Court accepted the Attorney General's undertaking that the petitioner would be given a hearing.

Why it matters here. It is the case that made fairness a constitutional requirement of administrative action rather than a common law implication, and it is the bridge between administrative law and Part III.

Facts. E.P. Royappa v. State of Tamil Nadu, AIR 1974 SC 555, arose out of the transfer of a Chief Secretary to posts he said were inferior, alleged to have been made mala fide by the Chief Minister.

Held. The petition failed on the facts, the allegation of mala fides not being made out. But the Court held that equality is a dynamic concept, that equality and arbitrariness are sworn enemies, and that where an act is arbitrary it is implicit in it that it is unequal and therefore violative of Article 14.

Why it matters here. It converted Article 14 from a rule about classification into a general standard against arbitrary administrative action, which is the standard the rest of this book uses.

Facts. Ramana Dayaram Shetty v. International Airport Authority of India, AIR 1979 SC 1628, concerned the acceptance of a tender for a restaurant at Bombay airport from a party who did not satisfy the eligibility condition the authority itself had published.

Held. The State and its instrumentalities cannot act arbitrarily in the distribution of largesse. Where the State lays down a standard for the grant of a benefit it must adhere to it, and departure from a self-imposed standard without reason is arbitrary and offends Article 14.

Why it matters here. It brought contracts, licences, quotas and permits, which is where most citizens actually meet the State, inside the discipline of Article 14.

Period four: after 1991

The reforms of 1991 are MU's second printed topic and Chapter [The 1991 Reforms] onwards deals with them properly. What matters here is their effect on the shape of administrative law.

Ownership gave way to regulation. The State stopped licensing entry into most industries and stopped running many of them, and instead created independent statutory regulators for particular sectors: securities in 1992, telecommunications in 1997, insurance in 1999, electricity in 2003, competition across sectors in 2002.

A new kind of body appeared. These regulators make regulations, grant and cancel licences, and decide disputes, so the whole apparatus of this subject applies to them, and appellate tribunals were created above several of them.

Transparency became a statutory right. The Right to Information Act 2005 gave a citizen a legal claim to the file, which is the practical answer to the imbalance described in Chapter [From the Police State to the Welfare State].

Tribunals were reorganised twice. The Administrative Tribunals Act 1985 had created a parallel service adjudication system; L. Chandra Kumar v. Union of India, AIR 1997 SC 1125, restored the High Courts' supervisory jurisdiction over it; and the Tribunals Reforms Act 2021 rationalised the appellate tribunals again. Chapters [Articles 323A, 323B and the Administrative Tribunals Act 1985] and [Tribunals After L. Chandra Kumar] follow this through.

A worked example: one power across four periods

Consider the power to cancel a trading licence.

Before 1950, cancellation was an executive act. A trader outside the presidency towns had no writ remedy. If the statute gave no appeal, there was very little to be done.

After 1950, the trader could move the High Court under Article 226, and could argue that the cancellation offended Article 19(1)(g) unless it was a reasonable restriction under Article 19(6).

After Kraipak and Maneka Gandhi, the trader could argue in addition that the cancellation was void for want of a hearing, whether or not the statute provided one, because it entailed civil consequences.

After Royappa and Airport Authority, the trader could argue that the cancellation was arbitrary, that the authority had departed from its own published standard, and that it therefore offended Article 14 whatever the statute said.

Each period added a ground. None of them took one away.

What this does NOT mean

It does not mean administrative law began in 1950. The administration and the rules it made are far older; what 1950 supplied was enforceable control.

It does not mean the courts have been consistently expansive. Additional District Magistrate, Jabalpur v. Shivkant Shukla, AIR 1976 SC 1207, is in this period too, and Chapter [ADM Jabalpur and the Rule of Law in an Emergency] treats it honestly.

It does not mean India copied England. Article 226 is far wider than the English prerogative writs, Part III has no English counterpart, and India has tribunals under a constitutional provision, which England does not.

Quick revision

1. Four periods: pre-constitutional, the Constitution of 1950, judicial expansion about 1967 to 1980, and the regulatory State after 1991.
2. Before 1950 the writ jurisdiction existed only in the presidency High Courts' original jurisdiction, and there were no fundamental rights.
3. Article 13(3)(a) brings rules, regulations, bye-laws and notifications within the meaning of law, so delegated legislation is testable against Part III.
4. Article 226 is wider than Article 32 and wider than the English writs, because it runs for fundamental rights and for any other purpose.
5. Kraipak, AIR 1970 SC 150: the administrative and quasi-judicial line is being obliterated.
6. Maneka Gandhi, AIR 1978 SC 597: procedure under Article 21 must be right, just and fair, and Articles 14, 19 and 21 are read together.
7. Royappa, AIR 1974 SC 555: equality and arbitrariness are sworn enemies.
8. Airport Authority, AIR 1979 SC 1628: the State must adhere to its own published standards when distributing largesse.
9. After 1991: sectoral regulators, appellate tribunals, and the Right to Information Act 2005.

Test yourself

1. Name the four periods of Indian administrative law and give one landmark for each. Pre-constitutional, marked by the Government of India Act 1935 and the absence of a general writ remedy; the Constitution of 1950, with Articles 13, 14, 19, 21, 32 and 226; judicial expansion, marked by Kraipak in 1969 and Maneka Gandhi in 1978; and the regulatory State after 1991, marked by the sectoral regulators and the Right to Information Act 2005.

2. Why is Article 226 wider than the English writ jurisdiction? Because it empowers a High Court to issue the writs not only for the enforcement of fundamental rights but also for any other purpose, so it reaches an ordinary legal right as well as a constitutional one, and because it runs throughout the territories over which the High Court exercises jurisdiction rather than only in an original jurisdiction.

3. What did Article 13(3)(a) add to administrative law? It defines law to include an ordinance, order, bye-law, rule, regulation and notification, so subordinate legislation made by the executive is void under Article 13(2) if it takes away or abridges a fundamental right, exactly as a statute would be.

4. State the proposition in Royappa and explain why it changed the subject. That equality is a dynamic concept and that equality and arbitrariness are sworn enemies, so an arbitrary act is by that fact unequal and violates Article 14. It changed the subject because Article 14 had been a rule about reasonable classification, and it became a general standard against which any administrative decision can be tested.

5. What did 1991 change about the shape of Indian administrative law? The State moved from owning and licensing to regulating, so a new class of independent statutory regulators appeared with rule-making, licensing and adjudicatory powers, appellate tribunals were created above several of them, and the ordinary doctrines of this subject had to be applied to bodies that were neither departments nor courts.

Section 21 is the provision a student meets most often without being told what it is. It is why a licensing authority that can grant can usually also cancel, and it was the provision argued over in Indian National Congress (I) v. Institute of Social Welfare, AIR 2002 SC 2158.

Facts. The Election Commission registers political parties under section 29A of the Representation of the People Act 1951. The Act gives it no express power to cancel a registration. The question was whether it could de-register a party for violating the Constitution or breaking an undertaking given on registration, and whether section 21 of the General Clauses Act supplied the missing power.

Held. Registration under section 29A is a quasi-judicial act, and no power of review having been conferred, the Commission cannot de-register a party once registered, save in narrow exceptional situations the Court identified. Section 21 did not supply a general power to undo a quasi-judicial determination.

Why it matters here. It shows both the reach and the limit of a general statute as a source: section 21 fills gaps in the ordinary case, and does not fill this one.

Three: delegated legislation

Rules, regulations, bye-laws, notifications, orders and schemes are law, and are therefore a source. They are also the largest single body of Indian law by volume. Module III is about how they are made and controlled; here it is enough that they are a source, that they rank below the parent Act, and that they are void if they conflict with it.

Four: judicial decisions

This is the largest source of doctrine, and it is where a student should look first when a question asks for a principle rather than a provision.

Article 141 makes the law declared by the Supreme Court binding on all courts within India, so a proposition stated there is law for the whole country.

Almost every doctrine in this book is judge-made: the essential legislative function test, the grounds on which a rule is ultra vires, the reach of natural justice, the standard of unreasonableness, proportionality, legitimate expectation, promissory estoppel against the State, and the compensation awarded in a writ petition.

Five: executive instructions and manuals

Circulars, office memoranda, departmental manuals and executive instructions are not law in the strict sense, because they are not made under a statutory power. They matter for three reasons.

They are enforceable in part. Union of India v. Indo-Afghan Agencies Ltd, AIR 1968 SC 718, held that even a scheme that is only executive in character can be enforced against departmental authorities, and that Government cannot on some undefined ground of expediency fail to carry out a promise it has solemnly made.

Facts. The Export Promotion Scheme promised exporters of woollen goods import entitlement certificates equal to the full value of their exports. The respondents exported to Afghanistan and received a certificate for a reduced amount, without the enquiry the Scheme required.

Held. The Government is not exempt from liability to carry out a representation made as to its future conduct, and cannot claim to be the judge of its own obligation to the citizen. Whether a scheme is executive or legislative depends on its substance and not on its form or its method of publication.

Why it matters here. It is the reason an examiner's question about the sources cannot stop at statutes and rules: a great deal of what actually governs a citizen's dealings with a department is in a circular.

They bind the administration internally, and a departure from a published instruction without reason is arbitrary under Ramana Dayaram Shetty v. International Airport Authority of India, AIR 1979 SC 1628.

They cannot contradict a statute or a rule. An instruction may fill a gap; it may not override.

Six: reports and recommendations

The Law Commission of India has reported repeatedly on administrative law, on the writ jurisdiction, on government liability in tort and on tribunals. The Administrative Reforms Commission, first constituted in 1966 and again in 2005, produced the recommendations behind the Lokpal and Lokayukta institutions, the Right to Information Act and much of the machinery in Chapter [The Machinery of Accountability].

They are not law. They are persuasive, they explain why a statute took the shape it did, and an LL.M. answer that cites the report behind a provision reads better than one that does not.

A distinctions table

What this does NOT mean

It does not mean the Constitution answers every question. Most administrative law disputes are decided on the construction of a particular statute and its rules.

It does not mean a circular is worthless. It is frequently the only document that tells a citizen how a department will behave, and the promissory estoppel cases give it teeth.

It does not mean a Law Commission report can be cited as authority. It can be cited as reasoning and as history, never as a rule.

A worked example

A shopkeeper is refused a licence to store kerosene. She wants to know where the law that governs her case comes from, and the answer runs through all six sources.

The Constitution. Her right to carry on the trade is Article 19(1)(g), and the refusal must be a reasonable restriction under Article 19(6). The refusal must also satisfy Article 14, and if she goes to court her remedy is Article 226.

The statute. The power to require a licence at all comes from a parent Act, here the Essential Commodities Act 1955, and if the Act does not authorise the licensing of storage, no order can.

Delegated legislation. The conditions of the licence, the form of the application and the grounds of refusal are in a Control Order made under the Act. If the Order goes beyond the Act it is void, however sensible it is.

Judicial decisions. Whether she was entitled to a hearing before refusal, whether the officer had to record reasons, and whether an irrelevant consideration vitiates the order are not in the Act or the Order at all. They come from decided cases.

Executive instructions. A departmental circular may tell officers how to assess storage capacity. It binds the officer internally and it cannot add a ground of refusal the Order does not contain, but a departure from it without reason is arbitrary.

Reports. If the licensing requirement is later removed, the recommendation will have come from a committee report, and the report is where the reason for the change is stated.

The point of the exercise: no single source answers the question. A student who looks only at the Act misses the hearing, and a student who looks only at the cases misses the limit on the Order.

Quick revision

1. Six sources: the Constitution, statutes, delegated legislation, judicial decisions, executive instructions, and reports of expert bodies.
2. Articles 73 and 162 are sources of executive power; Articles 77 and 166 are how an officer's act becomes the Government's act.
3. Article 13(3)(a) makes rules, regulations, bye-laws and notifications law for the purpose of Part III.
4. General Clauses Act 1897, section 21: a power to make includes a power to amend, vary or rescind, in the same manner and subject to the same conditions.
5. Institute of Social Welfare, AIR 2002 SC 2158: section 21 does not supply a power to undo a quasi-judicial determination.
6. Judicial decisions are the largest source of doctrine, and Article 141 makes Supreme Court decisions binding on all courts.
7. Indo-Afghan Agencies, AIR 1968 SC 718: an executive scheme can be enforced against departmental authorities.
8. Reports of the Law Commission and the Administrative Reforms Commission are persuasive and are not law.

Test yourself

1. List the six sources of Indian administrative law with an example of each. The Constitution, for example Article 226; statutes, for example the Administrative Tribunals Act 1985; delegated legislation, for example a Drugs (Prices Control) Order; judicial decisions, for example the essential legislative function test; executive instructions, for example an Export Promotion Scheme; and reports of expert bodies, for example those of the Administrative Reforms Commission.

2. State section 21 of the General Clauses Act 1897 and give one practical consequence. Where an enactment confers a power to issue notifications, orders, rules or bye-laws, that power includes a power to add to, amend, vary or rescind them, exercisable in the same manner and subject to the same conditions. The practical consequence is that an authority which can grant a licence can ordinarily also modify or cancel it, following the same procedure.

3. Can an executive instruction be enforced against the Government? Support your answer. In part. Indo-Afghan Agencies, AIR 1968 SC 718, held that even a scheme executive in character can be enforced against departmental authorities and that the Government cannot fail to carry out a solemn promise on an undefined ground of expediency. But an instruction cannot override a statute or a rule.

4. Why is Article 13(3)(a) important to the sources of this subject? Because it defines law to include an ordinance, order, bye-law, rule, regulation and notification, so delegated legislation made by the executive is void under Article 13(2) if it takes away or abridges a fundamental right, exactly as a statute would be.

5. Which source supplies most of the doctrine, and why is that so? Judicial decisions, because India has no general code of administrative procedure, so the grounds of review, the reach of natural justice, the standards of unreasonableness and proportionality, legitimate expectation and promissory estoppel against the State have all had to be developed case by case.

The tests, and the honest position on them

The old test was the source of the duty. A body was quasi-judicial if the statute expressly or impliedly required it to act judicially. The English courts read this narrowly, requiring a duty to act judicially superadded to the duty to decide, and Ridge v. Baldwin, [1964] AC 40, destroyed that reading.

The Indian starting point was Kusaldas Advani.

Facts. Province of Bombay v. Kusaldas S. Advani, AIR 1950 SC 222, arose out of the requisition of a Bombay flat under section 3 of the Bombay Land Requisition Ordinance 1947, which allowed requisition if in the opinion of the Provincial Government it was necessary or expedient to do so for a public purpose. A refugee from Sind who had taken the tenancy had the flat requisitioned from under him and allotted to another refugee. The High Court issued certiorari.

Held. By a majority, the Government's decision that the property was required for a public purpose was an administrative act and not a judicial or quasi-judicial one, so certiorari did not lie. The Full Court agreed on the principle that certiorari lies where a body having legal authority to determine questions affecting the rights of subjects, and having the duty to act judicially, acts in excess of that authority, and does not lie against an order administrative or ministerial in nature. Mahajan and Mukherjea JJ dissented, holding that the Government did have to act judicially in deciding whether the land was required for a public purpose.

Why it matters here. It is the case that shows what the classification was for, and what it cost: a citizen dispossessed of his home lost because of a label, and the dissent is the beginning of the movement that Kraipak completed.

The modern test is the effect of the act. In A.K. Kraipak v. Union of India, AIR 1970 SC 150, the Court said that the dividing line between an administrative power and a quasi-judicial power is thin and is being gradually obliterated, that it is neither possible nor desirable to fix the limits of a quasi-judicial power, and that in matters like these public good is not advanced by a rigid adherence to precedents. It then assumed the selection board's power was administrative and struck the selection down anyway, for bias.

The current Indian formulation is that a duty to act judicially need not be superadded but may be spelt out from the nature of the power, the manner of exercising it and its impact on the person affected: Maneka Gandhi v. Union of India, AIR 1978 SC 597.

What survives the dissolution is the legislative category. It is still worth a great deal to know whether an act is rule-making, because if it is, no hearing is owed at all.

Facts. Union of India v. Cynamide India Ltd, AIR 1987 SC 1802, concerned notifications fixing the maximum prices of indigenously manufactured bulk drugs, made under paragraph 3 of the Drugs (Prices Control) Order 1979, itself made under section 3(2)(c) of the Essential Commodities Act 1955. Manufacturers moved the High Court, which quashed the notifications for want of a hearing.

Held. Price fixation of this kind is legislative activity and not quasi-judicial, so the principles of natural justice do not apply to it. A subordinate legislating body may determine the cost of production for itself, and the absence of a hearing does not vitiate the fixation.

Why it matters here. It is the cleanest modern Indian statement that the legislative category still does real work. The same point was made in Shri Sitaram Sugar Co Ltd v. Union of India, AIR 1990 SC 1277, where price fixation under section 3(3C) of the same Act was held legislative in character, done for the industry as a whole by costing a representative cross-section and not for any individual seller.

How to tell them apart, in practice

Two practical markers. A decision that names a person is almost never legislative. A decision that fixes a figure for a whole trade is almost never quasi-judicial.

A worked example

The Commissioner of a municipal corporation does four things in one morning.

He signs a bye-law fixing the hours during which shops of a class may remain open. General, prospective, applies to everybody in the class. Quasi-legislative. No shopkeeper is entitled to a hearing, although the Act may require the draft to be published for objections, and if it does, that requirement must be obeyed.

He hears and decides an objection by one shopkeeper that his premises have been wrongly assessed to property tax. A named person, a dispute, evidence. Quasi-judicial. Notice, hearing and reasons are owed.

He allots a market stall among applicants under a scheme. No dispute is being decided, but a choice is being made that affects identified people. Purely administrative. Fairness is owed: the scheme's own criteria must be applied and not departed from.

He issues a birth certificate to an applicant who has produced the prescribed proof. Ministerial. He has no choice, and if he refuses, mandamus lies.

What the classification does NOT mean

It does not mean the four boxes are watertight. One statutory power can produce action of more than one kind, and the same authority moves between categories through the day, as the example shows.

It does not mean that an administrative act is unreviewable. Since Kraipak and Maneka Gandhi it is reviewable for fairness, for arbitrariness under Article 14, and on all the grounds in Module IV.

It does not mean quasi-judicial always requires an oral hearing. What natural justice requires varies with the statute and the situation; often a written representation suffices.

It does not mean the label decides the remedy today. Article 226 is not confined to certiorari, and a High Court may issue any direction, order or writ, which is why the Kusaldas Advani problem is largely historical.

Limits and criticism

The dissolution has a cost. If everything attracts a duty to act fairly, the content of that duty has to be worked out case by case, and predictability suffers. English and American law answered this with codes and procedural rules; India has answered it with case law, and the result is that an authority often does not know in advance what it must do.

The legislative exception is doing heavy lifting. Cynamide and Sitaram Sugar together mean that a very large class of decisions with severe economic consequences, price fixation across an industry, carries no hearing at all. The justification is that the decision is not about any individual. The criticism is that the individual whose margin it destroys may reasonably think otherwise.

Quick revision

1. Four categories: quasi-legislative, quasi-judicial, purely administrative, ministerial.
2. The classification grew out of the writ jurisdiction, because certiorari lay only against a body with a duty to act judicially.
3. Kusaldas Advani, AIR 1950 SC 222: requisition on the Government's opinion of public purpose was administrative, so certiorari did not lie; two judges dissented.
4. Kraipak, AIR 1970 SC 150: the dividing line is thin and is being gradually obliterated.
5. Maneka Gandhi, AIR 1978 SC 597: the duty to act judicially may be spelt out from the nature of the power, the manner of exercise and the impact.
6. Cynamide, AIR 1987 SC 1802, and Sitaram Sugar, AIR 1990 SC 1277: price fixation is legislative, so no hearing is owed.
7. Markers: a decision naming a person is rarely legislative; a figure fixed for a whole trade is rarely quasi-judicial.
8. A ministerial act leaves no choice, and the remedy for refusal is mandamus.

Test yourself

1. Name the four categories of administrative action and state the safeguard attaching to each. Quasi-legislative, which owes no hearing; quasi-judicial, which owes notice, hearing, a decision on material and ordinarily reasons; purely administrative, which owes a duty to act fairly whose content varies; and ministerial, which owes nothing because no choice exists, the remedy for refusal being mandamus.

2. Why did the classification originally matter so much, and what reduced its importance? Because certiorari and prohibition lay only against a body having legal authority to determine questions affecting rights and having a duty to act judicially, so an administrative label defeated the writ. Its importance was reduced by Ridge v. Baldwin and Kraipak, which held that fairness attaches to administrative action as well, and by the width of Article 226, which is not confined to the named writs.

3. State the facts and the holding of Kusaldas Advani, and explain the significance of the dissent. A Bombay flat held by a refugee from Sind was requisitioned under section 3 of the Bombay Land Requisition Ordinance 1947 on the Provincial Government's opinion that it was needed for a public purpose, and allotted to another. The majority held the decision administrative, so certiorari did not lie. Mahajan and Mukherjea JJ held that the Government had to act judicially in deciding whether the land was required for a public purpose, and that view is the direction Indian law afterwards took.

4. Is price fixation quasi-judicial? Give authority. No. Union of India v. Cynamide India Ltd, AIR 1987 SC 1802, held that price fixation under a Drugs (Prices Control) Order is legislative activity to which natural justice does not apply, and Shri Sitaram Sugar Co Ltd v. Union of India, AIR 1990 SC 1277, held the same of levy sugar prices fixed for the industry as a whole.

5. Give one criticism of the modern position. That the dissolution of the quasi-judicial category has been replaced by a duty to act fairly whose content is decided case by case, so an authority frequently cannot know in advance what procedure it must follow, a problem that the American Administrative Procedure Act 1946 and the German code of administrative procedure both avoid.

Reasons are now the rule and not the exception.

Facts. S.N. Mukherjee v. Union of India, AIR 1990 SC 1984, arose out of a court martial and the confirmation of its finding and sentence. The question referred to a Constitution Bench was whether an administrative authority exercising quasi-judicial functions is required to record reasons for its decision.

Held on the general question. Except in cases where the requirement has been dispensed with expressly or by necessary implication, an administrative authority exercising judicial or quasi-judicial functions is required to record the reasons for its decision. The requirement introduces clarity, minimises arbitrariness, and enables the person affected to know why the decision went against them and the reviewing authority to test it.

Held on the Army Act. The Court then applied its own test and found that the Army Act 1950 and the Army Rules 1954 dispensed with the requirement by necessary implication, so the confirming authority was not bound to record reasons for confirming the finding and sentence of a court martial, and the appeal failed. That second half is why the case is worth reading rather than quoting: the general rule and the exception were both applied in one judgment.

Why it matters here. It converts what had been a matter of good practice into a rule of law, and it is the single safeguard that does most work in ordinary administration, because a decision that must be explained is a decision that must be thought about.

Administrative action proper

What it is. Everything else the authority does: allocating, inspecting, sanctioning, transferring, recommending, contracting, enforcing.

How to recognise it. It affects identified people, but it settles no dispute. There is a choice being made rather than a question being answered.

What is owed. A duty to act fairly where civil consequences follow, which after A.K. Kraipak v. Union of India, AIR 1970 SC 150, and Maneka Gandhi v. Union of India, AIR 1978 SC 597, is the general position. The content varies: sometimes a full hearing, often only an opportunity to represent, sometimes only that the authority apply its own published criteria honestly.

And a duty not to be arbitrary, which is Article 14 and E.P. Royappa v. State of Tamil Nadu, AIR 1974 SC 555, and which applies even where no hearing is owed at all.

A worked example: one file, three functions

The State Electricity Regulatory Commission has a file on rooftop solar.

It publishes Regulations prescribing the technical standard for connecting a rooftop installation to the grid and the maximum charge a distribution licensee may levy for the connection. No consumer is named. The Regulations apply to everyone who applies in the next five years. Rule-making. No hearing is owed to any consumer, though the Act may require a draft to be published for comment, and if it does that must be done.

It hears a complaint by one housing society that the licensee has refused to connect its installation, and after notice to the licensee and a hearing it orders the connection within thirty days and awards costs. A named party, a dispute, evidence, an order. Adjudication. Notice, hearing and reasons are owed, and S.N. Mukherjee means the reasons must be recorded.

It sanctions the appointment of a consultant to study grid stability, and allots office space in its own building. Administrative action. Nobody has a right to be heard about the consultant, but if the Commission had published a procedure for empanelling consultants it must follow it, because departing from a self-imposed standard without reason is arbitrary: Ramana Dayaram Shetty v. International Airport Authority of India, AIR 1979 SC 1628.

The distinctions, in one table

What beginners get wrong

Thinking the name of the document decides. A document called an order can be legislative and a document called a notification can be an adjudication. Substance governs, and Union of India v. Indo-Afghan Agencies Ltd, AIR 1968 SC 718, says so expressly: whether a scheme is executive or legislative depends not on its form, its method of publication or the source of its authority, but on its substance.

Thinking a hearing is always owed. It is not owed against a rule, and Cynamide is the authority.

Thinking reasons are only for courts. After S.N. Mukherjee they are the rule for quasi-judicial administrative decisions, and in practice most regulators give them for rule-making too.

Thinking the three functions must be separated. In India they are not, and the constitutional objection that would be made in the United States does not succeed here, because the Indian separation of powers is functional rather than rigid. Chapter [Separation of Powers in India] explains why.

Limits and criticism

The same officials do all three, and the safeguards are thin. In a department there is often no separation at all between the officer who investigates and the officer who decides. The American answer is the administrative law judge under sections 554 to 557 of the Administrative Procedure Act 1946. India has nothing equivalent outside the tribunals.

The duty to give reasons is not always honoured. A single line saying that the representation has been considered and rejected satisfies the letter and defeats the purpose, and the courts have had to say repeatedly that reasons must show the mind of the maker.

Quick revision

1. Three functions: rule-making, adjudication, administrative action proper.
2. Rule-making looks forward, names nobody, and owes no natural justice: Cynamide, AIR 1987 SC 1802.
3. Adjudication looks backward, names a person, and owes notice, hearing, an unbiased decision on material, and reasons.
4. S.N. Mukherjee, AIR 1990 SC 1984: an authority exercising quasi-judicial functions must record reasons unless the requirement is dispensed with expressly or by necessary implication.
5. Administrative action owes fairness where civil consequences follow, and owes non-arbitrariness under Article 14 always.
6. Substance and not form decides which function is being performed: Indo-Afghan Agencies, AIR 1968 SC 718.
7. One authority ordinarily performs all three, and administrative law manages the price of that combination.

Test yourself

1. You are handed a document. What three questions tell you which function it performs? Does it name anybody, or does it apply to a class? Does it look forward to future conduct, or backward at facts that have happened? Is it resolving a dispute on material, or making a choice within a policy? A document naming nobody and looking forward is rule-making; one naming a person and resolving a dispute is adjudication; one naming a person and making a choice is administrative action.

2. State the rule on reasons and its authority. S.N. Mukherjee v. Union of India, AIR 1990 SC 1984: except where the requirement is dispensed with expressly or by necessary implication, an administrative authority exercising quasi-judicial functions must record the reasons for its decision, because reasons introduce clarity, minimise arbitrariness and let the decision be tested.

3. Why is no hearing owed against a rule? Because a rule is not directed at any person, so there is nobody whose case is being decided and nothing for an individual to answer; the safeguards for rule-making are of a different kind, being publication, laying, and testing the rule against the parent Act and the Constitution.

4. Does the name of a document decide its character? Give authority. No. Union of India v. Indo-Afghan Agencies Ltd, AIR 1968 SC 718, held that whether a scheme is merely executive or is legislative depends not on its form, or the method of its publication, or the source of its authority, but on its substance.

5. Name one weakness of combining the three functions in one body, and the American answer to it. The officer who investigates often also decides, so the decision-maker is not independent of the case being made. The Administrative Procedure Act 1946 answers this by requiring formal adjudication before an administrative law judge insulated from the agency's prosecuting side, with the investigating and deciding functions separated inside the agency.

The question that decides everything: is the agency the State?

An agency that is the State within Article 12 is bound by the fundamental rights and can be sued under Article 32. An agency that is not may still be amenable to Article 226 if it discharges a public function, but it is not bound by Part III.

Facts. Ajay Hasia v. Khalid Mujib Sehravardi, AIR 1981 SC 487, concerned admissions to a regional engineering college run by a society registered under the Jammu and Kashmir Registration of Societies Act. The society was sponsored and largely funded by the State and the Central Government, and its governing body was dominated by their nominees. Candidates challenged the admission procedure, and the society said it was not the State at all.

Held. The society was an instrumentality or agency of the State and therefore an authority within Article 12. The Court set out the tests: the entire share capital held by government, financial assistance meeting almost the entire expenditure, a monopoly status conferred or protected by the State, deep and pervasive State control, functions of public importance closely related to governmental functions, and a department of government transferred to the corporation.

Why it matters here. It is the test a student applies whenever an agency denies that the fundamental rights bind it, and it settles that the form of the body, whether society, corporation or company, is not decisive.

Facts. Pradeep Kumar Biswas v. Indian Institute of Chemical Biology, (2002) 5 SCC 111, arose out of a claim by employees of a laboratory of the Council of Scientific and Industrial Research that the Council was the State, so that their service conditions were enforceable under Article 32. An earlier decision had held that it was not.

Held. A seven judge Bench overruled the earlier decision. The question is whether the body is financially, functionally and administratively dominated by, or under the control of, the Government, and that control must be particular to the body and pervasive rather than the regulatory control the State exercises over all activity. On that test the Council is the State.

Why it matters here. It is the current formulation, it is by a larger Bench than Ajay Hasia, and the phrase to reproduce is "financially, functionally and administratively dominated by or under the control of the Government", with the control being particular and pervasive.

The role agencies actually play

MU's question asks for the role, and the answer has five parts.

They translate policy into standards. A statute says drinking water shall be safe; an agency says what safe means in milligrams per litre.

They licence and allocate. Entry into a regulated activity is by permission, and the agency decides who gets it.

They supervise continuously. Returns, inspections, audits and disclosures, which no court could do.

They adjudicate at first instance. Most disputes in a regulated sector are decided by the regulator before any court sees them.

They absorb technical risk from the political executive. A decision taken by an expert body with a published reason is harder to attack, and easier to defend, than the same decision taken by a minister.

A worked example

A new class of small electric vehicles appears. Trace who does what.

Parliament enacts a short amendment to the Motor Vehicles Act creating a category and empowering the Central Government to prescribe standards for it.

The Ministry makes rules prescribing the standards, which is delegated legislation.

A statutory testing agency certifies particular models against those standards. Certification is administrative action; refusal must be for a reason.

The State transport authority registers vehicles and issues permits, which is administrative and in part quasi-judicial.

A regulator of electricity decides the tariff at which a charging station may sell, which is rule-making for the class and adjudication where a particular operator disputes it.

The consumer forum, and the High Court under Article 226, control all of it.

Six bodies, one activity, and every one of them an administrative agency in the sense of this chapter.

What this does NOT mean

Agency does not mean the same thing in India as in the United States. The American agency is a defined statutory category under the Administrative Procedure Act 1946. In India the word is descriptive.

Not every public body is the State. Ajay Hasia and Pradeep Kumar Biswas set a threshold, and a body that fails it is not bound by Part III, though it may still answer to Article 226 if it discharges a public duty.

Independence is not immunity. A statutory regulator is as subject to judicial review as a department, and Cellular Operators Association of India v. Telecom Regulatory Authority of India, AIR 2016 SC 2336, is the proof: the regulator's own regulation was struck down.

Limits and criticism

Accountability is genuinely harder. A minister answers to Parliament. A regulator answers to a statute, and the machinery for holding it to account, an annual report, an appellate tribunal and judicial review, is thinner than a question hour.

Appointments matter more than powers. Where the executive chooses the members, fixes their terms and controls their budget, independence exists on paper. That is the argument that runs through the tribunal cases in Chapter [Tribunals After L. Chandra Kumar].

Multiplication produces overlap. A single transaction can attract a sector regulator, the competition authority and a tax authority at once, and India has no general statute allocating jurisdiction between them.

Quick revision

1. An administrative agency is any authority other than the legislature and the courts empowered to affect rights by rule-making, adjudication or executive action.
2. Four Indian forms: departments and officers, statutory authorities and boards, statutory regulators, and public corporations and government companies.
3. Reasons for creating one: continuity, technicality, unsuitability for courts, and independence.
4. Ajay Hasia, AIR 1981 SC 487: tests for an instrumentality of the State, including share capital, funding, monopoly, deep and pervasive control, and public functions.
5. Pradeep Kumar Biswas, (2002) 5 SCC 111: the test is domination or control that is financial, functional and administrative, particular to the body and pervasive.
6. The role: translating policy into standards, licensing, continuous supervision, first instance adjudication, and absorbing technical risk.
7. Independence is not immunity: a regulator's regulation was struck down in Cellular Operators, AIR 2016 SC 2336.

Test yourself

1. Define an administrative agency and name the four Indian forms. An authority other than the legislature and the courts, empowered by the Constitution or by statute to affect rights, duties or privileges by making rules, deciding disputes or taking executive action. The four forms are government departments and their officers, statutory authorities and boards, statutory regulators, and public corporations and government companies.

2. State the test in Pradeep Kumar Biswas and say how it differs from Ajay Hasia. Whether the body is financially, functionally and administratively dominated by, or under the control of, the Government, the control being particular to the body and pervasive rather than general regulatory control. It differs from Ajay Hasia in being a single composite test stated by a larger Bench, rather than a list of indicative factors.

3. Give four reasons why a legislature creates an agency rather than acting itself. The work is continuous and the legislature is not; the work is technical and needs expertise; the work is unsuitable for courts, which act only after the event and only on what parties plead; and independence from the political executive is sometimes wanted.

4. Describe the role of administrative agencies in the development of the administrative process in India. They translate legislative policy into workable standards, they control entry to regulated activity by licensing and allocation, they supervise continuously through returns and inspections, they adjudicate disputes at first instance within their sector, and they take technical decisions that the political executive is not equipped to take.

5. Name two criticisms of the agency model and one case showing that independence is not immunity. Accountability is thinner than ministerial responsibility to Parliament, and independence depends on how members are appointed, paid and removed rather than on the words of the statute. Cellular Operators Association of India v. Telecom Regulatory Authority of India, AIR 2016 SC 2336, shows that a regulator's own regulation may be struck down as ultra vires the parent Act and as manifestly arbitrary.

Two: a statutory list of functions. Section 11 of the SEBI Act, section 11 of the TRAI Act, section 14 of the IRDA Act, section 18 of the Competition Act, sections 79 and 86 of the Electricity Act. The list is the outer boundary of everything the regulator may do.

Three: power to make regulations. Section 30 of the SEBI Act, section 36 of the TRAI Act, section 26 of the IRDA Act, section 64 of the Competition Act, sections 178 and 181 of the Electricity Act. These regulations are delegated legislation and everything in Module III applies to them.

Four: power to investigate and to enforce. Inspection, production of documents, summoning persons, interim directions and penalties.

Five: adjudication. The regulator decides disputes and imposes penalties, so natural justice and the duty to give reasons apply to it.

Six: an appellate tribunal, and beyond it the Supreme Court. This is the structural answer to the objection that the regulator is judge in its own cause.

The constitutional objection, and the Indian answer

The objection is the American one in Chapter [The Growth of Administrative Law in the United States]: a body that writes the rule, prosecutes the breach and tries the case exercises all three powers at once.

The Indian answer has three parts.

The separation of powers in India is functional and not rigid, so the combination is not by itself unconstitutional. Chapter [Separation of Powers in India] works this out.

The regulations remain subordinate legislation, so they must stay within the parent Act and may be struck down.

The adjudication remains subject to review. An appeal lies to a tribunal, and above everything sits Article 226, whose exclusion cannot be complete after L. Chandra Kumar v. Union of India, AIR 1997 SC 1125.

The proof that these are real controls and not formalities is that a regulation of the sector regulator has actually been struck down.

Facts. Cellular Operators Association of India v. Telecom Regulatory Authority of India, AIR 2016 SC 2336, concerned the Telecom Consumers Protection (Ninth Amendment) Regulations 2015, made under section 36(1) of the TRAI Act 1997, which required a service provider to credit one rupee to a subscriber for every call drop, up to three a day. The operators said the regulation was beyond the Act and was manifestly arbitrary; the High Court had upheld it on both grounds.

Held. The regulation was struck down. A regulation made by a statutory regulator is subordinate legislation, and is open to challenge both for being ultra vires the parent Act and for manifest arbitrariness. This one failed: it fixed liability without reference to fault, the material before the authority did not support it, and it was unreasonable.

Why it matters here. It is the answer to a student who thinks an expert regulator is beyond review, and it is the clearest modern authority that a regulation is tested exactly as any other piece of delegated legislation.

A worked example

A new payments technology appears and three regulators claim it.

The securities regulator says the instrument is a security, so its issue needs disclosure under regulations made under section 30 of the SEBI Act 1992.

The competition authority says the two firms that dominate the technology have agreed on pricing, which is an anti-competitive agreement it may investigate under the Competition Act 2002.

The telecommunications regulator says the service rides on a licensed network, so its quality of service regulations under section 36 of the TRAI Act 1997 apply.

All three may be right, because the statutes overlap and nothing allocates jurisdiction between them. The firm must comply with all three, and the disputes go to three different appellate tribunals. That is the strongest practical criticism of the Indian regulatory design, and it is what a good answer says after describing the model.

What this does NOT mean

It does not mean the regulators are uniform. Their powers differ substantially: the Competition Commission investigates conduct across every sector, while TRAI's most important function under section 11(1)(a) is only recommendatory.

It does not mean they replaced the departments. Ministries still make policy, still allocate scarce national resources in several sectors, and still hold the residual powers.

It does not mean the regulator is independent because the Act says so. Independence depends on who appoints, for how long, on what removal grounds and with what budget, and that is the argument running through the tribunal cases.

Quick revision

1. The Indian regulatory model dates from the SEBI Act 1992 and was largely complete by the Electricity Act 2003.
2. It replaced control by ownership and by entry licensing with control by an expert body at arm's length.
3. The common design: a body corporate with fixed tenure, a statutory list of functions, power to make regulations, power to investigate and enforce, adjudication, and an appellate tribunal.
4. The regulations are delegated legislation, so Module III applies to them entirely.
5. Cellular Operators, AIR 2016 SC 2336: a regulation of TRAI was struck down as ultra vires and manifestly arbitrary.
6. Article 226 cannot be wholly excluded from any of them after L. Chandra Kumar, AIR 1997 SC 1125.
7. The chief structural criticism is overlapping jurisdiction with no statute to allocate it.

Test yourself

1. Name five Indian statutory regulators with their Acts and their appellate forums. The Securities and Exchange Board of India under the SEBI Act 1992, appeal to the Securities Appellate Tribunal under section 15T; the Telecom Regulatory Authority of India under the TRAI Act 1997, appeal to the Telecom Disputes Settlement and Appellate Tribunal; the Insurance Regulatory and Development Authority under the IRDA Act 1999, appeal to the Securities Appellate Tribunal; the Competition Commission of India under the Competition Act 2002, appeal to the National Company Law Appellate Tribunal under section 53A; and the Electricity Regulatory Commissions under the Electricity Act 2003, appeal to the Appellate Tribunal for Electricity under section 111.

2. Set out the six common features of the design. A body corporate with members of fixed tenure; a statutory list of functions which bounds everything it may do; power to make regulations, which are delegated legislation; power to investigate and enforce; power to adjudicate and impose penalties; and an appeal to a specialised tribunal, with Article 226 behind it.

3. What is the constitutional objection to a regulator, and how does Indian law answer it? That one body legislates, prosecutes and adjudicates in the same field. Indian law answers that the separation of powers here is functional rather than rigid, that the regulations remain subordinate legislation testable against the parent Act, and that adjudication remains subject to appeal and to the High Court's jurisdiction under Article 226, which cannot be wholly excluded.

4. Give a case in which a regulator's own regulation was set aside, with its two grounds. Cellular Operators Association of India v. Telecom Regulatory Authority of India, AIR 2016 SC 2336: the call drop compensation regulation was ultra vires section 36 of the TRAI Act 1997 and was manifestly arbitrary, having fixed liability without reference to fault on material that did not support it.

5. State the chief practical criticism of the Indian regulatory landscape. That the statutes overlap and nothing allocates jurisdiction between the regulators, so one transaction can attract a sector regulator, the competition authority and a tax authority together, with appeals lying to three different tribunals.

The current formulation.

Facts. Pradeep Kumar Biswas v. Indian Institute of Chemical Biology, (2002) 5 SCC 111, arose from a claim by employees of a laboratory of the Council of Scientific and Industrial Research that the Council was the State, so that their service conditions could be enforced under Article 32. An earlier decision of the Court had held that it was not.

Held. A seven judge Bench overruled that earlier decision. The question is whether the body is financially, functionally and administratively dominated by, or under the control of, the Government, and that control must be particular to the body and pervasive, not the general regulatory control which the State exercises over every activity. On that test the Council is the State.

Why it matters here. It is the current test, by the largest Bench, and the words to reproduce are "financially, functionally and administratively dominated by or under the control of the Government", with the control "particular to it and pervasive".

Contract and the State

A corporation contracts in its own name. The Government contracts under Article 299, which requires that a contract made in the exercise of the executive power of the Union or a State be expressed to be made by the President or the Governor, and be executed on their behalf by a person authorised and in the manner directed. A contract not so made does not bind the Government, and the requirement has been held mandatory rather than directory.

Article 298 empowers the Union and the States to carry on any trade or business and to acquire, hold and dispose of property and make contracts for any purpose. It is the constitutional basis of the whole entrepreneurial function described in Chapter [From the Police State to the Welfare State].

Article 300 provides that the Government may sue and be sued in the name of the Union or the State. Chapter [Redress Against the State in India] deals with the liability that follows.

A worked example

Two bodies deliver electricity in a State.

A distribution company is registered under the Companies Act with the State Government holding all its shares, its directors nominated by the State, its tariff fixed by the State Regulatory Commission, and its losses met by State subsidy. A worker dismissed by it wants to argue that the dismissal offends Article 14.

Applying Pradeep Kumar Biswas: the shareholding is entirely governmental, the board is governmental, the finances depend on the State, and the control is particular to this body and pervasive. It is the State, so Article 14 runs and the worker may move under Article 32 or Article 226.

A private generating company holds a licence under the Electricity Act 2003 and sells to the same distribution company. Its shares are privately held, its board is private, and the only governmental control over it is the regulatory control that binds every generator. It is not the State. Its dismissal of a worker is a contractual matter, though a High Court may still reach it under Article 226 in respect of any public duty its licence imposes.

What this does NOT mean

It does not mean every body receiving government money is the State. Financial assistance is one indicium among several, and Pradeep Kumar Biswas requires domination or control that is financial, functional and administrative together.

It does not mean a company registered under the Companies Act cannot be the State. Form is not decisive, and Ajay Hasia says so.

It does not mean a body that is not the State escapes all public law. Article 226 runs against any person or authority in respect of a public duty, which is wider than Article 12.

It does not mean the corporation's employees are civil servants. They are not, so Articles 309 to 311 do not apply to them; their protection comes from Articles 14 and 16 once the body is held to be the State.

Limits and criticism

The Article 12 test is fact-heavy and therefore unpredictable. Two bodies with similar funding can fall on different sides, and the litigation to find out costs years.

Disinvestment has made the question harder. A company that was wholly government owned in 1995 and is now 51 per cent owned, or 26 per cent owned, moves across the line at some point, and the point is not marked.

Parliamentary control over government companies is weak. The shareholding ministry answers for the company, and the company's own decisions are commercial and confidential, so a citizen frequently cannot find out who decided what.

Quick revision

1. Two forms: the statutory corporation created by its own Act, and the government company registered under the Companies Act.
2. The statutory corporation has only the powers its Act confers; anything beyond them is ultra vires.
3. Article 298 permits the State to trade; Article 299 governs the form of a government contract; Article 300 makes the Government suable.
4. Ajay Hasia, AIR 1981 SC 487: the indicia of an instrumentality, and form is not decisive.
5. Pradeep Kumar Biswas, (2002) 5 SCC 111: financially, functionally and administratively dominated by or under the control of the Government, the control being particular and pervasive.
6. If the body is the State, Part III binds it and Article 32 lies; if not, Article 226 may still lie for a public duty.
7. Employees of such bodies are not civil servants, so Articles 309 to 311 do not apply.

Test yourself

1. Distinguish a statutory corporation from a government company on four points. Creation, by a special Act against registration under the Companies Act; constitution, fixed by statute against alterable by the shareholders; powers, limited to what the Act confers against the general powers of a company; and control, direct parliamentary control through the Act and the estimates against indirect control through the shareholding ministry.

2. Why does it matter whether a public corporation is the State within Article 12? Because if it is, Part III binds it, its acts are tested against Article 14 and its employees can enforce Articles 14 and 16 under Article 32; if it is not, the fundamental rights do not run against it, although Article 226 may still reach it in respect of a public duty.

3. State the test in Pradeep Kumar Biswas in the Court's own terms. Whether the body is financially, functionally and administratively dominated by, or under the control of, the Government, that control being particular to the body and pervasive, rather than the general regulatory control which the State exercises over all activity.

4. What does Article 299 require, and what follows if it is not observed? That a contract made in the exercise of the executive power of the Union or a State be expressed to be made by the President or the Governor and executed on their behalf by an authorised person in the manner directed. A contract not so made does not bind the Government.

5. Give two reasons why the Article 12 question has become harder since 1991. Disinvestment moves a company across the line by degrees, with no marked point at which government control ceases to be pervasive; and the growth of regulation means many private bodies are heavily controlled by the State in the general regulatory sense, which Pradeep Kumar Biswas expressly says is not enough.

The three tiers

The All India Services. The Indian Administrative Service, the Indian Police Service and the Indian Forest Service. Their distinguishing feature is that they are common to the Union and the States: an officer is recruited centrally, allotted to a State cadre, and serves both. Article 312 lets Parliament create a new All India Service, including an all-India judicial service, if the Council of States declares by a resolution supported by not less than two thirds of the members present and voting that it is necessary or expedient in the national interest, and clause (2) of the same Article expressly provides that the services known at the commencement of the Constitution as the Indian Administrative Service and the Indian Police Service are deemed to be services created by Parliament under it. No all-India judicial service has ever been created. The All India Services Act 1951 empowers the Central Government, after consultation with the State Governments, to make rules regulating recruitment and conditions of service, and its section 4 continues the rules in force before the Act.

The Central Services. Recruited and employed by the Union alone: revenue, audit and accounts, customs, foreign service, railways and the rest.

The State Services. Recruited by a State through its own Public Service Commission and serving that State.

The role of the civil service in governance

This is MU's actual question, and the answer has six parts. Chapter [The Role of the Civil Servant as an Administrator] works them out one by one; here they are stated so that the structure is visible.

Advice. The file goes up with the options, the precedents, the legal position and the financial implications before the minister decides.

Rule-making. The minister approves a policy; the officers draft the rules, regulations and notifications that carry it, which is Module III.

Implementation. Schemes are run, benefits paid, licences issued, inspections done.

Adjudication. Officers decide the individual case, which is where natural justice binds them.

Coordination. Between departments, between Union and State, and between the field and the secretariat.

Continuity and institutional memory. The service holds what the political executive cannot.

A worked example

A State decides to give a monthly allowance to a class of agricultural labourers.

The minister announces the policy. That is the political executive.

The department examines it. Is there legislative competence? Is a statute needed or will an executive scheme do, on the authority of Rai Sahib Ram Jawaya Kapur v. State of Punjab, AIR 1955 SC 549? What will it cost, and is there a budget line? Which existing scheme does it overlap? That is advice.

A scheme is issued, or rules are made under an existing Act. That is rule-making.

District officers register beneficiaries against criteria, which is implementation, and decide objections where an applicant is refused, which is adjudication and attracts a duty to act fairly.

An applicant refused registration moves the High Court under Article 226, arguing that the criteria were not applied to her as they were to others: Ramana Dayaram Shetty v. International Airport Authority of India, AIR 1979 SC 1628.

Every stage after the announcement is the work of the permanent executive, and every stage after the announcement is administrative law.

Facts, held, and the doctrine of pleasure

Facts. Union of India v. Tulsiram Patel, AIR 1985 SC 1416, was a group of appeals by government servants dismissed without the inquiry that Article 311(2) requires, the authorities having invoked the second proviso to that clause. The appeals raised the whole relationship between the doctrine of pleasure in Article 310 and the protections in Article 311.

Held. The pleasure doctrine has constitutional sanction in India by being enacted in Article 310(1), and Article 311 is not a separate source of protection but an exception carved out of that pleasure. Where one of the three situations in the second proviso to Article 311(2) genuinely exists, the inquiry is dispensed with by the Constitution itself; but the satisfaction is not beyond examination, and under clause (b) the reason must be recorded in writing.

Why it matters here. It explains why an Indian civil servant is simultaneously the most protected employee in the country and the holder of an office at pleasure, which looks like a contradiction until Article 311 is read as an exception to Article 310 rather than as a rival to it.

What this does NOT mean

It does not mean the civil service makes policy. It advises on policy and executes it. The distinction is easy to state and hard to police, and it is the source of most complaints about bureaucratic power.

It does not mean neutrality means silence. An officer's duty is to give frank advice and then to implement the decision loyally, whichever way it went.

It does not mean the services are one thing. An All India Service officer, a Central Service officer and a State Service officer have different recruiting authorities, different cadres and different rules.

It does not mean employees of public corporations are civil servants. They are not, and Articles 309 to 311 do not apply to them: Chapter [Public Corporations and Government Companies].

Limits and criticism

Frequent transfer defeats the design. A permanent service loses its value if the individual officer moves every eleven months, and the courts have repeatedly said that a fixed minimum tenure is part of good governance.

Generalism against specialism. The Indian model puts a generalist at the head of a technical department, which is efficient in coordination and weak in expertise, and it is the oldest criticism of the service made by every reform commission.

Accountability is diffused. The file passes through many hands, and when a decision goes wrong it is often impossible to say whose decision it was. Chapter [Responsibility and Accountability of Administrators] takes this up.

Quick revision

1. The civil services are the permanent, professional, politically neutral body of officials who staff the administration.
2. Three tiers: All India Services, Central Services, State Services.
3. Article 312: Parliament may create a new All India Service if the Council of States so resolves by two thirds; the IAS and the IPS are deemed created under it.
4. The All India Services Act 1951 empowers rules on recruitment and conditions of service after consultation with the States.
5. Articles 77 and 166 are how an officer's decision becomes an act of the Government.
6. Article 310 is the doctrine of pleasure; Article 311 is an exception carved out of it: Tulsiram Patel, AIR 1985 SC 1416.
7. Six functions: advice, rule-making, implementation, adjudication, coordination, continuity.
8. Criticisms: transfer instability, generalism, and diffused accountability.

Test yourself

1. Distinguish the political executive from the permanent executive on four points. How chosen, by election and appointment against open competition on merit; tenure, at political will against until retirement subject to Articles 310 and 311; function, policy and direction against advice, rule-making, implementation and adjudication; and accountability, political to the legislature against legal and disciplinary.

2. Name the three tiers of the Indian civil services and say what distinguishes the first. The All India Services, the Central Services and the State Services. The All India Services are distinguished by being common to the Union and the States, so an officer recruited centrally is allotted to a State cadre and serves both.

3. What does Article 312 provide? That if the Council of States declares by a resolution supported by not less than two thirds of the members present and voting that it is necessary or expedient in the national interest, Parliament may by law provide for the creation of one or more all-India services, including an all-India judicial service, common to the Union and the States, and regulate recruitment and conditions of service; and that the services known at the commencement of the Constitution as the Indian Administrative Service and the Indian Police Service are deemed to be services created by Parliament under the Article. The all-India judicial service may not include any post inferior to that of a district judge, and none has been created.

4. How does a decision taken by an officer become an act of the Government? Through Articles 77 and 166: executive action is expressed to be taken in the name of the President or the Governor, orders are authenticated in the manner specified by rules made by them, and an order so authenticated cannot be called in question on the ground that it is not an order made by the President or the Governor.

5. State the relationship between Articles 310 and 311, with authority. Article 310 enacts the doctrine of pleasure, so a government servant holds office during the pleasure of the President or the Governor. Article 311 is not an independent source of protection but an exception carved out of that pleasure, and where the second proviso to Article 311(2) applies the inquiry is dispensed with by the Constitution itself: Union of India v. Tulsiram Patel, AIR 1985 SC 1416.

Article 310: the doctrine of pleasure

The text. Except as expressly provided by the Constitution, every person who is a member of a defence service or of a civil service of the Union or of an all-India service, or holds any post connected with defence or any civil post under the Union, holds office during the pleasure of the President; and every person who is a member of a civil service of a State or holds any civil post under a State holds office during the pleasure of the Governor. Clause (2) permits a contract of appointment for a person not a member of those services to provide compensation if the post is abolished or the person is required to vacate it for reasons unconnected with misconduct.

What pleasure means here. It is inherited from English law, where all servants of the Crown hold at pleasure and may be dismissed at will. Its justification is public interest: the public is vitally interested in the efficiency and integrity of the services, so a servant who is inefficient, dishonest, corrupt or a security risk should not continue. Union of India v. Tulsiram Patel, AIR 1985 SC 1416, states that justification in terms and traces the doctrine from the United Kingdom into Article 310.

What pleasure does not mean in India. Three limits, and they are the difference between India and England.

It is constitutional, not prerogative. Because it is enacted in Article 310, it can be limited only by the Constitution itself, and it has been: the words "except as expressly provided by this Constitution" open the door to Article 311.

It is subject to Part III. A dismissal that is arbitrary offends Article 14, and Kumari Shrilekha Vidyarthi v. State of Uttar Pradesh, AIR 1991 SC 537, holds that arbitrariness is the very negation of the rule of law and that every State action must satisfy Article 14 even in a field that looks contractual.

It cannot be fettered by contract or by statute. Because Article 310 is constitutional, an ordinary Act or a contract cannot take the pleasure away, although Article 311 restricts how it may be exercised.

Article 311: the two safeguards

The next chapter works this Article through in full. In outline:

Clause (1). No person who is a member of a civil service of the Union or an all-India service or a civil service of a State, or holds a civil post under the Union or a State, shall be dismissed or removed by an authority subordinate to that by which he was appointed.

Clause (2). No such person shall be dismissed, removed or reduced in rank except after an inquiry in which he has been informed of the charges and given a reasonable opportunity of being heard in respect of those charges. The first proviso, inserted by the Forty-second Amendment, provides that where a penalty is proposed after such an inquiry it may be imposed on the evidence adduced at the inquiry, and that no further opportunity on the penalty need be given. The second proviso excludes clause (2) in three cases, which the next chapter sets out.

Article 312 and 312A: the all-India services

Article 312(1). If the Council of States declares by a resolution supported by not less than two thirds of the members present and voting that it is necessary or expedient in the national interest, Parliament may by law provide for the creation of one or more all-India services, including an all-India judicial service, common to the Union and the States, and regulate recruitment and conditions of service.

Article 312(2). The Indian Administrative Service and the Indian Police Service, as known at the commencement of the Constitution, are deemed to be services created by Parliament under the Article.

Article 312(3). The all-India judicial service may not include any post inferior to that of a district judge as defined in Article 236. No such service has ever been created.

Article 312A empowers Parliament to vary or revoke the conditions of service of officers who had served before independence, and is of historical interest only.

Article 313 and the omission of Article 314

Article 313 continues in force, so far as consistent with the Constitution, the law in force immediately before the commencement with respect to any service or post. It is why colonial service rules survived 1950.

Article 314 guaranteed the existing officers of certain services their existing conditions. It was omitted by the Constitution (Twenty-eighth Amendment) Act 1972 with effect from 29 August 1972, and a student who cites it as live law is wrong.

A distinctions table

What beginners get wrong

Reading Article 311 as the source of the officer's rights. It is an exception to Article 310, not a rival to it, and Tulsiram Patel says so.

Thinking service rules are ordinary delegated legislation. Rules under the proviso to Article 309 draw their force from the Constitution, not from a parent Act, though they yield to any Act the legislature makes.

Citing Article 314. It has been omitted since 1972.

Assuming Part XIV protects everyone who works for the State. It protects members of the civil services and holders of civil posts. Employees of public corporations and government companies are outside it, and their protection comes from Articles 14 and 16 once the body is held to be the State.

A worked example

A Deputy Collector in a State service is removed from service. Which provision of Part XIV answers which question?

Who made the rule under which he was appointed? Article 309. Until the appropriate legislature makes an Act, the Governor or a person directed by the Governor may make rules, and those rules operate until an Act displaces them.

Could he be removed at all? Article 310. He holds office during the pleasure of the Governor, so there is no contractual term to enforce and no notice period to claim.

Was the removal valid? Article 311. Being a member of a State service, he cannot be removed except by an authority not subordinate to the appointing authority, and not without an inquiry in which he has been informed of the charges and given a reasonable opportunity of being heard in respect of them.

Could the State abolish the safeguard by amending its service rules? No. Article 311 is a constitutional limit on the pleasure in Article 310, so a rule cannot cut it down.

Would the answer change if he belonged to the Indian Administrative Service? The safeguard in Article 311 would be the same, since it covers members of an all-India service, but the rule-making authority would be Parliament under Article 312 rather than the Governor under Article 309.

The trap: students say the removal is bad because he had a right to the post. He did not. The removal is bad, if it is bad, because the procedure in Article 311 was not followed.

Quick revision

1. Part XIV, Articles 308 to 323, contains the constitutional law of the civil services.
2. Article 309: the legislature may regulate recruitment and conditions of service; until it does, the President or Governor may make rules, which yield to any later Act.
3. Article 310: office is held during the pleasure of the President or the Governor, except as expressly provided by the Constitution.
4. Article 311(1): no dismissal or removal by an authority subordinate to the appointing authority.
5. Article 311(2): no dismissal, removal or reduction in rank except after an inquiry with notice of the charges and a reasonable opportunity of being heard, subject to three exceptions in the second proviso.
6. Article 312: all-India services on a two thirds Rajya Sabha resolution; the IAS and IPS are deemed created under it; an all-India judicial service is permitted and has never been created.
7. Article 313 saves pre-constitutional service law; Article 314 was omitted in 1972.

Test yourself

1. Set out Article 309 and explain the effect of its proviso. Subject to the Constitution, Acts of the appropriate Legislature may regulate the recruitment and conditions of service of persons appointed to public services and posts under the Union or a State. The proviso lets the President or the Governor, or a person they direct, make rules on the same subjects until the legislature provides otherwise, and such rules have effect subject to any such Act. The effect is that most Indian service conditions are governed by executive rules with constitutional force, which yield the moment the legislature legislates.

2. What is the doctrine of pleasure, and how is it limited in India? That a government servant holds office during the pleasure of the President or the Governor and may be removed at will. In India it is limited because it is enacted in Article 310 subject to express constitutional provision, so Article 311 restricts its exercise; because it is subject to Part III, so an arbitrary dismissal offends Article 14; and because it cannot be enlarged or defeated by ordinary statute or contract.

3. Name the two safeguards in Article 311 and say which was altered by amendment. That no person shall be dismissed or removed by an authority subordinate to that by which he was appointed, and that no person shall be dismissed, removed or reduced in rank except after an inquiry with notice of the charges and a reasonable opportunity of being heard. The second was altered by the Forty-second Amendment, whose proviso allows the penalty to be imposed on the evidence adduced at the inquiry without a further opportunity on the penalty proposed.

4. Which Article of Part XIV is no longer in force, and when did it go? Article 314, which protected the existing conditions of officers of certain services, omitted by the Constitution (Twenty-eighth Amendment) Act 1972 with effect from 29 August 1972.

5. Can Parliament create an all-India judicial service, and what is the constitutional condition? Yes. Article 312(1) as amended expressly includes an all-India judicial service, but Parliament may act only if the Council of States has first declared by a resolution supported by not less than two thirds of the members present and voting that it is necessary or expedient in the national interest, and by Article 312(3) such a service may not include any post inferior to that of a district judge.

What the inquiry must contain. A definite charge in writing, communicated. Evidence in support, recorded in the presence of the accused officer. An opportunity to cross-examine and to lead a defence. A finding on each charge. And, after S.N. Mukherjee v. Union of India, AIR 1990 SC 1984, reasons.

How the clause has changed twice.

The Fifteenth Amendment widened the reasonable opportunity at the inquiry stage and preserved a second opportunity to show cause against the proposed penalty.

The Forty-second Amendment, in force from 1 January 1977, inserted the first proviso, which states that where a penalty is proposed after such inquiry it may be imposed on the basis of the evidence adduced at the inquiry and that it shall not be necessary to give such person any opportunity of making representation on the penalty proposed. The second stage was abolished.

What the abolition of the second stage produced.

Facts. Managing Director, ECIL, Hyderabad v. B. Karunakar, AIR 1994 SC 1074, arose because the Forty-second Amendment removed the stage at which an employee had traditionally received the inquiry officer's report. Where the inquiry officer is a different person from the disciplinary authority, the question was whether the report must be given to the employee before the disciplinary authority acts on it, even where the rules are silent or forbid it.

Held. The report must be furnished, whether or not the employee asks for it, in all establishments, government and non-government, public and private, whatever the rules say and whatever the punishment, wherever an inquiry is required. The right to represent against the findings is an integral part of the opportunity of defence, and denying it breaches natural justice.

Held on relief. Non-supply does not automatically invalidate the punishment. To order reinstatement with back wages in every case would reduce the rules of justice to a mechanical ritual. Whether prejudice was in fact caused must be considered on the facts of each case.

Why it matters here. It is the practical content of the Article 311 inquiry as it now stands, and it is also the leading Indian authority on the proposition that a breach of natural justice is judged by its effect and not only by its occurrence.

The three exceptions: the second proviso

Clause (2) does not apply where:

(a) Conviction on a criminal charge. The person is dismissed, removed or reduced in rank on the ground of conduct which has led to conviction on a criminal charge. No fresh inquiry into the conduct is needed, because a court has already found it. The penalty itself must still be decided by the disciplinary authority.

(b) Not reasonably practicable to hold an inquiry. The authority empowered to dismiss, remove or reduce is satisfied that for some reason, to be recorded by that authority in writing, it is not reasonably practicable to hold the inquiry. The classic cases are where witnesses will not testify from fear, or where the officer has made an inquiry impossible.

(c) Security of the State. The President or the Governor is satisfied that in the interest of the security of the State it is not expedient to hold the inquiry.

How far the satisfaction is reviewable. Tulsiram Patel holds that where one of the three situations genuinely exists the inquiry is dispensed with by the Constitution itself. But the satisfaction is not beyond examination: under clause (b) the reason must be recorded in writing, and a recorded reason that discloses no reason at all, or is mala fide, or is based on no material, does not satisfy the proviso. A court does not sit in appeal on the satisfaction; it asks whether the condition for it existed.

A worked example

Sandeep Wagh is an Assistant Engineer in a State Public Works Department, appointed by the Chief Engineer. Four situations.

One. He is dismissed by the Executive Engineer. Clause (1) is breached: the Executive Engineer is subordinate to the appointing authority. The dismissal is void whatever its merits.

Two. He is dismissed by the Chief Engineer after a charge sheet, an inquiry and a finding, but the inquiry officer's report is never shown to him. Karunakar applies. He must show what he would have said and how it might have mattered. If he can show prejudice, the punishment goes; if the report is entirely against him on facts he has admitted, it may not.

Three. He is convicted of taking a bribe and is dismissed on that ground without any inquiry. Proviso (a) applies. No inquiry into the conduct is needed; but the authority must still consider what penalty the conviction warrants.

Four. Departmental witnesses refuse to depose because he has threatened them, and the Chief Engineer records in writing that an inquiry is not reasonably practicable and dismisses him. Proviso (b) applies, and the recorded reason is what a court will look at. If the file shows no threat and no attempt to hold an inquiry, the recorded reason will not save the order.

What beginners get wrong

Thinking Article 311 gives a right to the post. It regulates the manner of removal, not the entitlement to remain.

Thinking the second proviso removes the safeguard entirely. It removes the inquiry, not the requirement of a decision by the right authority under clause (1), and not the review of whether the condition existed.

Thinking a breach of natural justice always means reinstatement. Karunakar holds otherwise: prejudice must be shown.

Thinking employees of public sector undertakings are protected. They are not, because they hold no civil post under the Union or a State.

Limits and criticism

The Forty-second Amendment weakened the officer's position by abolishing the second opportunity, and Karunakar restored part of it by a different route, through natural justice rather than through the Article.

Proviso (b) is the one that is abused, because the satisfaction is the dismissing authority's own and the material behind it is on a file the officer cannot see. The written reason is the only check, and a formulaic reason is hard to attack.

The inquiry is slow. A departmental proceeding running for years is a punishment in itself, and neither the Article nor the rules impose a time limit.

Quick revision

1. Article 311 protects members of civil services of the Union and the States, members of all-India services, and holders of civil posts. Defence services and public sector employees are outside it.
2. Clause (1): no dismissal or removal by an authority subordinate to the appointing authority. It does not cover reduction in rank.
3. Clause (2): no dismissal, removal or reduction in rank except after an inquiry with notice of the charges and a reasonable opportunity of being heard.
4. The Forty-second Amendment, from 1 January 1977, abolished the second opportunity to represent against the proposed penalty.
5. Karunakar, AIR 1994 SC 1074: the inquiry report must be furnished whether or not asked for, in all establishments; but prejudice must be shown before the punishment falls.
6. The three exceptions: conviction on a criminal charge; not reasonably practicable, for reasons recorded in writing; security of the State.
7. Tulsiram Patel, AIR 1985 SC 1416: where a situation in the second proviso genuinely exists the Constitution itself dispenses with the inquiry, but the satisfaction is examinable.

Test yourself

1. Who is protected by Article 311 and who is not? Protected: a member of a civil service of the Union, a member of an all-India service, a member of a civil service of a State, and a person holding a civil post under the Union or a State. Not protected: members of the defence services, employees of statutory corporations and government companies, and persons engaged purely by contract who hold no post.

2. State the two safeguards and one difference between them. Clause (1), no dismissal or removal by an authority subordinate to the appointing authority; clause (2), no dismissal, removal or reduction in rank except after an inquiry with notice of the charges and a reasonable opportunity to be heard. The difference is that clause (1) does not cover reduction in rank while clause (2) does.

3. What did the Forty-second Amendment change, and what did Karunakar restore? It inserted the proviso allowing the penalty to be imposed on the evidence adduced at the inquiry and stating that no opportunity of representation on the proposed penalty need be given, so the second stage disappeared from 1 January 1977. Karunakar restored, through natural justice rather than through the Article, the right to receive the inquiry officer's report before the disciplinary authority acts on it.

4. Set out the three exceptions in the second proviso and say which is the most open to abuse. Conviction on a criminal charge; satisfaction, for reasons recorded in writing, that it is not reasonably practicable to hold the inquiry; and satisfaction of the President or the Governor that in the interest of the security of the State it is not expedient to hold one. The second is the most open to abuse, because the satisfaction is the dismissing authority's own and rests on material the officer cannot see, so the written reason is the only check.

5. An officer is dismissed without being given the inquiry report. Does the dismissal automatically fall? No. Karunakar holds that whether prejudice was in fact caused must be considered on the facts of each case, and that directing reinstatement with back wages in every case would reduce the rules of justice to a mechanical ritual. The officer must show what he would have represented and that it could have made a difference.

Removal. This is the heart of the independence. A member may be removed from office only by the President, and only on the ground of misbehaviour after the Supreme Court, on a reference by the President, has reported that the member ought to be removed. A member may also be removed if he is adjudged insolvent, engages in paid employment outside his duties, or is unfit by reason of infirmity of mind or body. The President may suspend a member pending the Supreme Court's report.

Note the structure: a State Commission's member is appointed by the Governor but removable only by the President, on a report of the Supreme Court. The removing authority is deliberately not the appointing authority.

Articles 318, 319 and 322: further independence

Article 318 empowers the President or the Governor to make regulations on the number of members, their conditions of service, and the staff of the Commission, but the conditions of service of a member may not be varied to his disadvantage after appointment.

Article 319 bars a member from further employment. The Chairman of the Union Commission is ineligible for further employment under the Government of India or a State. A member of the Union Commission other than the Chairman is eligible for appointment as Chairman of the Union Commission or of a State Commission, but not otherwise. The Chairman of a State Commission is eligible to be Chairman or a member of the Union Commission or Chairman of another State Commission, but not otherwise. The purpose is plain: a member deciding a selection should have nothing to gain from the government.

Article 322 charges the expenses of the Commission, including salaries and pensions, on the Consolidated Fund of India or of the State, so they are not voted annually and cannot be used as leverage.

Article 320: the functions

The duty to conduct examinations. It is the duty of the Union and the State Commissions to conduct examinations for appointments to the services of the Union and of the State respectively.

The duty to assist on joint recruitment. If requested by two or more States, the Union Commission shall assist those States in framing and operating schemes of joint recruitment for any services for which candidates possessing special qualifications are required.

The matters on which the Commission must be consulted. The Union or State Commission is consulted on all matters relating to methods of recruitment to civil services and posts; on the principles to be followed in making appointments, promotions and transfers between services, and on the suitability of candidates for such appointments, promotions and transfers; on disciplinary matters affecting a person serving in a civil capacity, including memorials or petitions relating to such matters; on claims for costs incurred by a civil servant in defending legal proceedings arising out of acts done in the execution of duty; and on claims for a pension in respect of injuries sustained in the course of service.

Regulations may exclude. The President or the Governor may make regulations specifying matters on which the Commission need not be consulted, and such regulations must be laid before the legislature.

The status of the Commission's advice

This is the point an examiner tests, and it is counter-intuitive.

The advice is not binding. The obligation in Article 320(3) is to consult, and the government may depart from what the Commission advises.

But departure has a cost. By Article 323, the Commission presents an annual report to the President or the Governor on the work done, and the report is laid before Parliament or the State Legislature together with a memorandum explaining, as respects the cases where the advice of the Commission was not accepted, the reasons for such non-acceptance. So a government that ignores the Commission must explain itself in public, to the legislature.

And failure to consult where consultation is required is not automatically fatal. The requirement has been treated as directory rather than mandatory in the sense that non-consultation does not by itself confer a right on an individual to have an action set aside, though it is a serious irregularity and a court will examine the consequences on the facts.

A worked example

A State proposes to promote a Deputy Collector to Collector out of turn.

Consultation. The principles on which promotions are made, and the suitability of this officer, are matters within Article 320(3), so the State Public Service Commission must be consulted unless a regulation made under the proviso excludes the matter.

Advice. The Commission advises against the promotion, preferring a senior officer.

Departure. The State may still promote the junior officer, because the advice does not bind.

Consequence. The case will appear in the Commission's annual report under Article 323, and the State must lay before the Legislature a memorandum explaining why the advice was not accepted. The passed-over officer may in addition challenge the promotion under Articles 14 and 16, and the recorded departure from the Commission's advice will be part of the material a court looks at.

What this does NOT mean

It does not mean the Commission appoints. It recommends; the appointing authority appoints.

It does not mean every recruitment goes through the Commission. Regulations under the proviso to Article 320(3) exclude classes of matters, and many posts are outside the Commission's field altogether.

It does not mean a member is irremovable. A member is removable, but only by the President and only after a report of the Supreme Court on a reference, which is a judicial process and not an executive one.

It does not mean the Commission is a tribunal. It advises; it does not adjudicate, and its recommendations are not orders.

Limits and criticism

The advice not binding is the weakest link. The safeguard is publicity through Article 323, and publicity works only if the legislature reads the memorandum.

Vacancies are a real problem. A Commission functioning below strength for long periods slows recruitment, and the appointment of members is entirely in the hands of the very executive the Commission is meant to be independent of.

Article 320(3) does not cover everything. Contractual and deputation appointments, and posts excluded by regulation, sit outside the scheme, and they have grown.

Quick revision

1. Article 315: a Commission for the Union, one for each State, or a Joint Commission for a group of States.
2. Article 316: six years from entering office, or sixty-five for the Union Commission and sixty-two for a State or Joint Commission, whichever is earlier; as nearly as may be half the members from those with ten years' government service; and no re-appointment to the same office.
3. Article 317: removal only by the President, on the ground of misbehaviour, after a report of the Supreme Court on a reference.
4. Article 318: conditions of service may not be varied to a member's disadvantage after appointment.
5. Article 319: bars on further employment, designed so that a member has nothing to gain from the government.
6. Article 320: duty to conduct examinations, and the matters on which the Commission must be consulted.
7. Article 322: expenses charged on the Consolidated Fund.
8. Article 323: annual report laid before the legislature with a memorandum explaining any non-acceptance of the Commission's advice.

Test yourself

1. How is the independence of a Public Service Commission secured? Give four devices. Removal only by the President on the ground of misbehaviour after a report of the Supreme Court on a reference, whoever appointed the member; conditions of service that may not be varied to a member's disadvantage after appointment; bars on further employment under the government; and expenses charged on the Consolidated Fund rather than voted annually.

2. On what matters must the Commission be consulted? Methods of recruitment to civil services and posts; the principles to be followed in appointments, promotions and transfers between services and the suitability of candidates for them; disciplinary matters affecting a person serving in a civil capacity, including memorials and petitions; claims for costs incurred in defending legal proceedings arising out of acts done in the execution of duty; and claims for a pension for injuries sustained in service.

3. Is the Commission's advice binding? What follows if it is rejected? It is not binding. But under Article 323 the Commission's annual report is laid before the legislature together with a memorandum explaining, in the cases where its advice was not accepted, the reasons for the non-acceptance, so a departure must be justified in public.

4. Who appoints and who removes a member of a State Public Service Commission? The Governor appoints; only the President removes, and then only on the ground of misbehaviour after the Supreme Court, on a reference by the President, has reported that the member ought to be removed. The separation of the two is deliberate.

5. Give two criticisms of the scheme. That the Commission's advice does not bind, so the only sanction for ignoring it is publicity through the annual report; and that appointments to the Commission are entirely in the hands of the executive it is meant to be independent of, which also means that prolonged vacancies can be left unfilled.

Held. The acceptance was invalid. The eligibility condition was an objective test which the Authority itself had treated as meaningful, and accepting a tender from a person who did not satisfy it excluded others similarly situated from tendering at all, which was discriminatory and arbitrary.

Why it matters here. It is the standard an officer implementing any scheme must meet: apply the published criteria, to everyone, or change the criteria openly.

Four: adjudicator

What it involves. Deciding the individual case: an objection to an assessment, a claim to a benefit, a proposal to cancel a licence, a departmental charge.

The legal duty. Natural justice, in the content the situation requires, and reasons. A.K. Kraipak v. Union of India, AIR 1970 SC 150, brings ordinary administrative decisions inside natural justice, and S.N. Mukherjee v. Union of India, AIR 1990 SC 1984, requires reasons unless the requirement is dispensed with expressly or by necessary implication.

The commonest failures. Deciding on material the person has not seen; deciding after hearing but on a different ground; letting the officer who investigated also decide; and a reasoned order that gives no reason, being a single line stating that the representation has been considered and rejected.

Five: coordinator

What it involves. No significant decision belongs to one department. A road needs land, forest clearance, environmental clearance, electricity diversion and finance. The officer's real work is very often getting five other officers to agree.

Why it matters legally. Where a statute requires consultation or concurrence, the failure is a ground of invalidity, and where it does not, an uncoordinated decision usually fails on the ground that relevant considerations were left out.

Six: keeper of continuity

What it involves. The file, the precedent, the manual and the record. This is the least visible role and the one that makes the other five possible.

Why it matters legally. Because in litigation the file is the evidence. An administrative decision that cannot be shown to have been taken on relevant material fails, and the only thing that can show it is the record made at the time.

The neutrality problem, stated honestly

The rule. An officer serves the government of the day, whichever it is, and does not take political sides. The Conduct Rules forbid taking part in politics and in elections.

The strain. Neutrality assumes that the officer's advice will be sought and taken seriously, and that transfers will not be used as punishment. Where neither holds, the officer who gives inconvenient advice pays for it, and the incentive is to give convenient advice instead.

The legal response has been thin. Courts have repeatedly said that a fixed minimum tenure and a written record of oral instructions are necessary for good administration, and the practical protection remains Article 311 and the disciplinary rules.

A worked example: one officer, one week

A Sub-Divisional Officer in Maharashtra.

Monday. A note goes up on whether a proposed cattle market can be located on a particular plot, setting out three sites, the cost of each, the objections received and the legal position on the land. Adviser.

Tuesday. She drafts a notification under the local Act declaring the market area, checking that the Act's section actually authorises the declaration. Rule-maker.

Wednesday. She issues fifteen licences to traders under published criteria, and refuses two applicants who do not meet them, recording why. Implementer.

Thursday. She hears a trader whose licence is proposed to be cancelled for adulteration, gives him the inspector's report, hears his answer, and passes a reasoned order. Adjudicator.

Friday. She meets the electricity utility and the police about power and traffic at the market. Coordinator.

Throughout. Everything is on the file, which is what will be produced if any of it is challenged. Keeper of continuity.

What this does NOT mean

It does not mean the officer makes policy. She advises on it and executes it.

It does not mean the officer can refuse a lawful instruction she disagrees with. She may record her view; she must then carry it out.

It does not mean the officer must obey an unlawful instruction. She may not, and the Conduct Rules and Article 311 exist so that refusing is survivable.

It does not mean the roles are performed by different people. In most of India the same officer performs all six, often in the same day, and the safeguards that apply differ from role to role, which is the whole difficulty of Chapter [Classification of Administrative Action].

Quick revision

1. Six roles: adviser, rule-maker, implementer, adjudicator, coordinator, keeper of continuity.
2. Advice must be frank, and Article 311 exists so that it can be.
3. Rule-making must stay inside the parent Act: Ganesh Kamath, AIR 1983 SC 550.
4. Implementation must not be arbitrary and must follow the published criteria: Royappa, AIR 1974 SC 555, and Airport Authority, AIR 1979 SC 1628.
5. Adjudication owes natural justice and reasons: Kraipak, AIR 1970 SC 150, and S.N. Mukherjee, AIR 1990 SC 1984.
6. Coordination matters legally because failure to consult where required invalidates, and failure to consult where not required usually means relevant considerations were missed.
7. The file is the evidence, so the record made at the time decides the litigation.
8. Neutrality is under strain because transfer is used as an instrument, and the legal answer has been thin.

Test yourself

1. Name the six roles of a civil servant as an administrator, with the legal duty attaching to each. Adviser, owing frankness and integrity; rule-maker, owing a rule within the parent Act; implementer, owing non-arbitrariness and adherence to published criteria; adjudicator, owing natural justice and reasons; coordinator, owing whatever consultation the statute requires; and keeper of continuity, owing a record that shows the decision was taken on relevant material.

2. What must an officer do when she disagrees with a lawful instruction? Record her view on the file and then implement the decision loyally. Neutrality means frank advice followed by faithful execution, not obstruction.

3. Give a case showing the limit on the officer as rule-maker, with its facts. State of Karnataka v. H. Ganesh Kamath, AIR 1983 SC 550. A Karnataka rule required years of driving experience before a heavy vehicle licence could be granted, although section 7 of the Motor Vehicles Act 1939 made an applicant entitled to the licence on passing the prescribed test. The rule was ultra vires, because a rule-making power does not permit a rule travelling beyond or inconsistent with the enabling Act.

4. What are the four commonest failures of an officer acting as adjudicator? Deciding on material the affected person has not seen; deciding on a ground different from the one on which the hearing was given; allowing the officer who investigated to decide; and passing an order that states a conclusion without any reason.

5. Why is neutrality under strain, and what has the legal response been? Because it assumes advice will be sought and taken seriously and that transfer will not be used as punishment, so where those assumptions fail the officer who advises inconveniently pays for it. The legal response has been limited to judicial observations that a fixed minimum tenure and a record of oral instructions are necessary, with the officer's real protection remaining Article 311 and the disciplinary rules.

The role of tribunals in adjudication

MU's question asks for the role, and it has five parts.

They take the primary decision out of the department. A departmental appeal is decided inside the organisation that made the order. A tribunal is not.

They provide an accessible forum. Lower fees, simpler pleadings, benches in more places, and often no need for counsel.

They combine law and expertise on one bench. A judicial member for the law and a technical or administrative member for the subject matter.

They develop a specialised jurisprudence. A body deciding only service matters, or only electricity tariffs, builds a consistent body of doctrine faster than generalist courts can.

They relieve the High Courts. That was the express purpose of the Forty-second Amendment which inserted Articles 323A and 323B.

The objections, stated at full strength

Independence. Members are appointed by the executive, for short terms, on salaries and conditions the executive fixes, and are frequently eligible for reappointment. The body reviewing the government's decisions therefore depends on the government for its tenure. This is the objection that has produced the whole line of cases from S.P. Sampath Kumar v. Union of India, AIR 1987 SC 386, to the Tribunals Reforms Act 2021.

Expertise can become capture. A technical member drawn from the regulated industry, or from the department, brings knowledge and also brings a point of view.

Procedural informality can defeat fairness. Relaxing the rules of evidence helps a citizen without a lawyer and hurts a citizen facing a government with a file.

Fragmentation. Many tribunals with overlapping jurisdictions and different appellate routes make the system harder to navigate than the courts it replaced.

Access can be worse, not better. A single tribunal bench for a whole State can be further from a litigant than the District Court was.

A worked example

Anjali Kulkarni, a State government clerk, is reduced in rank.

Before 1985 her only remedy outside the department was a writ petition in the High Court under Article 226, filed through counsel, listed among constitutional matters, and decided years later.

After the Administrative Tribunals Act 1985, if her State has established a Tribunal, she applies to it under section 19, having first exhausted her departmental remedies as section 20 requires, and within the limitation in section 21. The Tribunal has a judicial member and an administrative member, is not bound by the Code of Civil Procedure but is guided by the principles of natural justice under section 22, and may make interim orders subject to section 24.

After L. Chandra Kumar, if she loses, she may take the decision to a Division Bench of the High Court under Articles 226 and 227, and thereafter by special leave to the Supreme Court under Article 136.

What she gains is a forum that hears service matters all day and knows the rules. What she risks is a bench whose members hold short terms at the government's pleasure, which is exactly the objection the next two chapters follow.

What this does NOT mean

It does not mean tribunals are inferior courts. They are not part of the court hierarchy at all; the relationship is supervisory, not appellate, unless a statute provides an appeal.

It does not mean that anything called a tribunal is one. A departmental appellate authority deciding an appeal against its own organisation's order is an administrative authority, whatever it is called.

It does not mean tribunalisation is settled policy. The Tribunals Reforms Act 2021 abolished several appellate tribunals and sent their work back to the High Courts, so the movement runs in both directions.

Quick revision

1. A tribunal is a statutory body outside the ordinary courts, deciding one defined class of dispute, with judicial and expert members and simplified procedure.
2. Reasons for tribunals: volume, expertise, speed and cost, unsuitable court procedure, and policy sensitivity.
3. Role in adjudication: taking the decision out of the department, accessibility, combining law and expertise, building specialised jurisprudence, and relieving the High Courts.
4. Objections: dependence on the executive for tenure, capture by expertise, informality defeating fairness, fragmentation, and worse geographical access.
5. A tribunal is not a court, not a department, and not free of Articles 226 and 227.
6. Appeal by special leave to the Supreme Court lies under Article 136.
7. The Tribunals Reforms Act 2021 abolished several tribunals, so the policy is not one way.

Test yourself

1. Define a tribunal and give three features that distinguish it from a court. A statutory body outside the hierarchy of ordinary courts, invested with judicial or quasi-judicial power over a defined class of disputes. It is created by a particular statute rather than by the Constitution and the general law; its jurisdiction is confined to one field instead of being general; and it sits with expert members alongside judicial ones and follows a simpler procedure than the Code of Civil Procedure.

2. Give five reasons why a legislature creates a tribunal instead of leaving the work to the courts. The volume of disputes the administrative process generates; the technical expertise many of them require; the need for speed and low cost; the unsuitability of civil procedure to a dispute in which one side holds the file; and the need for a decision-maker who can consider the effect on a whole sector.

3. State the role of tribunals in adjudication in five points. They take the decision out of the department that made the original order; they provide a cheaper and simpler forum; they put law and technical expertise on the same bench; they build a specialised body of doctrine; and they relieve the High Courts, which was the express purpose of the Forty-second Amendment.

4. State the strongest objection to tribunals and name the case line it produced. That the members are appointed by the executive on terms the executive fixes, often for short and renewable terms, so the body reviewing the government's decisions depends on the government for its tenure. That objection produced the line running from S.P. Sampath Kumar v. Union of India, AIR 1987 SC 386, through L. Chandra Kumar v. Union of India, AIR 1997 SC 1125, to the Tribunals Reforms Act 2021.

5. Is a departmental appellate authority a tribunal? No. Deciding an appeal inside the organisation that made the order is administrative adjudication, however the authority is described. A tribunal is constituted outside the department whose decisions it reviews.

Establishment. Section 4 provides for the establishment by the Central Government of a Central Administrative Tribunal, and of State Administrative Tribunals on receipt of a request from a State, and of Joint Administrative Tribunals for two or more States.

Composition. Section 5 deals with the composition of Tribunals and their Benches, section 6 with the qualifications for appointment as Chairman, Vice-Chairman and other Members, and section 8 with the term of office.

Jurisdiction. Section 14 confers on the Central Administrative Tribunal jurisdiction, powers and authority over service matters of the Union and of specified authorities and corporations. Section 15 does the same for a State Administrative Tribunal and section 16 for a Joint Administrative Tribunal. On the appointed day the Tribunal takes over what the courts had.

Contempt. Section 17 gives the Tribunal the power to punish for contempt, which a body without it cannot enforce its own orders.

Procedure. Section 19 governs applications to the Tribunal. Section 20 provides that an application shall not ordinarily be admitted unless the applicant has availed of all remedies available under the relevant service rules. Section 21 prescribes limitation. Section 22 provides that the Tribunal shall not be bound by the procedure in the Code of Civil Procedure 1908 but shall be guided by the principles of natural justice, subject to the other provisions of the Act and any rules, and gives it the powers of a civil court for specified purposes.

Interim orders. Section 24 imposes conditions on the making of interim orders, requiring notice and an opportunity to the other side except where the Tribunal records reasons for immediate relief.

Execution. Section 27 provides that an order of a Tribunal shall be executable as a decree of a civil court.

Exclusion. Section 28 excluded the jurisdiction of the courts in respect of the matters within the Tribunal's jurisdiction. As originally enacted it went further than Article 323A(2)(d) permitted and excluded even the Supreme Court's own jurisdiction under Article 32. That was corrected while Sampath Kumar was pending: the Administrative Tribunals (Amendment) Ordinance 1986, replaced by Act 19 of 1987, saved the Supreme Court's jurisdiction both under Article 32 in original proceedings and under Article 136 on appeal. What remained excluded was the High Courts under Articles 226 and 227, and that is what L. Chandra Kumar struck down.

Transfer. Section 29 transferred cases pending before courts to the Tribunal on the appointed day.

Why the exclusion was thought necessary

The purpose of the Forty-second Amendment was to relieve the High Courts. If a litigant could still go to the High Court under Article 226 after losing before the Tribunal, nothing would be relieved, and the Tribunal would simply add a tier. So the Amendment and the Act tried to make the Tribunal a substitute for the High Court rather than an addition to it, with only the Supreme Court above.

The price of that design is that the substitute must be as good as the thing it replaces. That was the argument in the first of the great tribunal cases.

Facts. S.P. Sampath Kumar v. Union of India, AIR 1987 SC 386, was a challenge to the Administrative Tribunals Act 1985 itself, on the ground that excluding the High Court's jurisdiction under Article 226 in service matters destroyed judicial review, which is part of the basic structure.

Held. The Act was upheld, but only on the footing that the Tribunal is a real substitute for the High Court. The exclusion of the Supreme Court's own jurisdiction under Article 32, which section 28 as first enacted had attempted, had already been removed by the 1986 Ordinance replaced by Act 19 of 1987, and the Court proceeded on the Act as so amended. The Court required changes to the provisions on appointment and tenure so that the Tribunal would have the independence and competence of the forum it replaced, and read the Act accordingly. Exclusion was permissible because an equally effective alternative institutional mechanism had been provided.

Why it matters here. It is the theory on which tribunalisation was allowed to proceed, and it is the theory the next chapter reports the Court abandoning ten years later.

A distinctions table

What this does NOT mean

It does not mean every tribunal in India is under Article 323A or 323B. Most are not. The Securities Appellate Tribunal, the Appellate Tribunal for Electricity and the National Company Law Tribunal are creatures of ordinary legislative power under the relevant entries, not of these Articles.

It does not mean the exclusion clauses still work. They do not, to the extent they exclude Articles 226, 227 and 32.

It does not mean a State must have a Tribunal. Section 4 requires a request from the State, and several States have never made one; some that did have since had their Tribunals abolished.

It does not mean the Tribunal can be approached first in every case. Section 20 requires departmental remedies to be exhausted first.

A worked example

An Assistant Engineer in a State Public Works Department is compulsorily retired. He wants to challenge it. Where does he go, and why?

Not to the High Court first. The dispute is a service matter of a person appointed to a public service of the State, so it falls within the Administrative Tribunals Act 1985 if the State has an Administrative Tribunal, and within the Central Administrative Tribunal's jurisdiction if he were a Union servant.

The Act's own design was to end there. Section 28 excluded the jurisdiction of all courts except the Supreme Court under Article 136, so on the statute as enacted the Tribunal was the first and last court of fact and of law.

The constitutional permission for that is Article 323A(2)(d), which allows Parliament to exclude the jurisdiction of all courts except the Supreme Court under Article 136 with respect to the disputes referred to the tribunal.

What actually happens now is worked in Chapter [Tribunals After L. Chandra Kumar]: the Tribunal decides first, and its decision is open to challenge before a Division Bench of the High Court, because the exclusion of the High Courts could not survive.

Read the two chapters together. This chapter is what the Constitution and the Act permitted; the next is what the Constitution turned out not to permit.

Quick revision

1. Articles 323A and 323B were inserted by the Forty-second Amendment in 1976.
2. Article 323A: Parliament alone, service matters, tribunals for the Union, the States and jointly.
3. Article 323B: the appropriate Legislature, for the eight subjects in clause (2).
4. Both permitted exclusion of all courts except the Supreme Court under Article 136, in clauses 2(d) and 3(d).
5. Administrative Tribunals Act 1985: section 4 establishment, sections 5, 6 and 8 composition and tenure, sections 14 to 16 jurisdiction, section 17 contempt, section 19 applications, section 20 exhaustion of remedies, section 21 limitation, section 22 procedure and natural justice, section 24 interim orders, section 27 execution as a decree, section 28 exclusion, section 29 transfer.
6. Section 28 as first enacted excluded even Article 32; the Ordinance of 1986, replaced by Act 19 of 1987, restored the Supreme Court's jurisdiction under Articles 32 and 136.
7. Sampath Kumar, AIR 1987 SC 386: exclusion is permissible only because an equally effective alternative institutional mechanism has been provided.
8. Most Indian tribunals are not under these Articles at all.

Test yourself

1. Which Amendment inserted Articles 323A and 323B, and what was its purpose? The Constitution (Forty-second Amendment) Act 1976. Its purpose was to relieve the High Courts by permitting the creation of tribunals which would substitute for, rather than be added to, the existing hierarchy in the subjects covered.

2. Distinguish Article 323A from Article 323B on three points. Article 323A may be used only by Parliament while Article 323B may be used by the appropriate Legislature; Article 323A covers service matters only while Article 323B covers the eight listed subjects; and Article 323A contemplates tribunals for the Union, the States and groups of States, while Article 323B contemplates a hierarchy of tribunals for its subjects.

3. Set out five provisions of the Administrative Tribunals Act 1985 with their section numbers. Section 4, establishment of the Central, State and Joint Tribunals; section 14, jurisdiction of the Central Administrative Tribunal; section 20, no application to be admitted unless other remedies are exhausted; section 22, the Tribunal is not bound by the Code of Civil Procedure but is guided by natural justice; and section 28, exclusion of the jurisdiction of courts except the Supreme Court under Article 136.

4. On what footing was the Act upheld in Sampath Kumar? On the footing that the Tribunal is a genuine substitute for the High Court and not merely an additional forum, so that excluding Article 226 is permissible only because an equally effective alternative institutional mechanism has been provided, and the Court required the provisions on appointment and tenure to be changed so the substitute would have the necessary independence and competence.

5. Are the Securities Appellate Tribunal and the Appellate Tribunal for Electricity constituted under Article 323B? No. They are created by ordinary legislation under the relevant legislative entries, not under Articles 323A or 323B, and most Indian tribunals are in the same position.

Why it matters here. It fixed the relationship between every Indian tribunal and the High Courts, and it is why no Indian statute can shut a High Court out of a subject however specialised.

What changed, in four consequences

The tribunal became an additional tier, not a substitute. The relief to the High Courts that the Forty-second Amendment sought was not achieved, and the honest position is that tribunalisation added a step for the litigant who loses.

Every exclusion clause in the country was cut down at once. The holding was not confined to the Administrative Tribunals Act; it applies to the exclusion clauses in all legislation enacted under Articles 323A and 323B.

Tribunals gained a power they had been denied. They may test the constitutional validity of statutory provisions and rules, subject to the two member Bench requirement, which a body deciding service or tax matters plainly needs.

The bypass was closed. A litigant may not go straight to the High Court in a matter within a tribunal's jurisdiction, so the tribunal remains the court of first instance.

The composition line: what the courts have insisted on since

After L. Chandra Kumar the argument moved from jurisdiction to composition. If a tribunal takes over work that a High Court did, its members must resemble the judges they replace.

Facts. Union of India v. R. Gandhi, President, Madras Bar Association, decided on 11 May 2010, concerned the National Company Law Tribunal and the National Company Law Appellate Tribunal, created by Parts 1B and 1C inserted into the Companies Act 1956, taking over the company jurisdiction of the High Courts.

Held. Creating the Tribunal and the Appellate Tribunal, and vesting in them the powers the High Court had exercised in company matters, is not unconstitutional. But Parts 1B and 1C as then structured were declared unconstitutional and could be made operational only by suitable amendment. Members must as nearly as possible have the same position and status as High Court judges, which is achieved not by paying them a judge's salary but by appointing persons nearly equal in rank, experience or competence. Provisions qualifying officers of the rank of Joint Secretary, or persons with fifteen years in a Group A post, were invalid; only Secretaries and Additional Secretaries could be considered as technical members. A technical member presupposes expertise in the tribunal's own field, so an officer who had incidentally dealt with some aspect of company law was not an expert. And where benches are constituted, the number of technical members shall not exceed the judicial members.

Why it matters here. It converts L. Chandra Kumar's principle into concrete requirements about who may sit, and it is the direct ancestor of every later tribunal composition case.

The Tribunals Reforms Act 2021

The most recent statutory intervention, and the one that shows the policy running the other way.

What it did with the tribunals themselves. It abolished several appellate tribunals and transferred their functions to existing courts, principally the High Courts, so that work sent out of the courts in earlier decades came back.

What it did with the members. It laid down a uniform code for the tribunals it retained: section 3 on qualifications, appointment and the Search-cum-Selection Committee; section 4 on removal; section 5 on the term of office; section 6 on eligibility for re-appointment; and section 7 on salary and allowances.

Why the Act is contested. Its provisions on tenure and on the minimum age for appointment reproduced provisions that the Supreme Court had already struck down in earlier rounds of litigation, and the constitutional argument about how far Parliament may re-enact what has been invalidated is live. A student writing on this should present it as a continuing dispute rather than as settled law.

A distinctions table: the position before and after

What this does NOT mean

It does not mean tribunals are unconstitutional. They are not, and R. Gandhi upholds their creation expressly. What is unconstitutional is excluding the High Court.

It does not mean a litigant may choose between the tribunal and the High Court. The tribunal is the court of first instance and must be approached first.

It does not mean every tribunal decision goes to a Division Bench as of right. It goes by way of the High Court's supervisory jurisdiction under Articles 226 and 227, which is discretionary, not by appeal.

It does not mean the composition problem is solved. It has produced litigation in every decade since, and the Tribunals Reforms Act 2021 is the latest round rather than the end of it.

A worked example

A Central Government servant is dismissed. Trace her route through the system as it now stands, and notice at each step what L. Chandra Kumar changed.

Step one, the Tribunal. She applies to the Central Administrative Tribunal. This is unchanged: the Tribunal is the court of first instance for her service dispute, and she cannot bypass it by going straight to the High Court.

Step two, the High Court. If she loses, she may move the High Court under Article 226. Under section 28 of the Act as enacted she could not have. After L. Chandra Kumar she can, because the jurisdiction of the High Courts under Articles 226 and 227 over the decisions of tribunals is part of the basic structure and could not be excluded.

Step three, the Bench that hears it. The petition goes before a Division Bench of the High Court, not a single judge. That is a direction of the judgment and it is the detail most often missed.

Step four, the Supreme Court. Only after the High Court, by special leave under Article 136. The direct appeal from the Tribunal to the Supreme Court that the Act contemplated is gone.

And one thing that did not change. The Tribunal may still decide the constitutional validity of a statutory rule or provision, except the validity of its own parent statute. It is a court of first instance, not a body forbidden to look at the Constitution.

The trap: to say that L. Chandra Kumar abolished tribunals or made them advisory. It did neither. It made them the first step in a route that now ends where every other route ends.

Quick revision

1. L. Chandra Kumar, AIR 1997 SC 1125, seven judges: Articles 323A(2)(d) and 323B(3)(d), and section 28 and every similar clause, are unconstitutional so far as they exclude Articles 226, 227 and 32.
2. Judicial review by the High Courts and the Supreme Court is part of the inviolable basic structure.
3. Tribunals act as courts of first instance, may test the vires of statutory provisions and rules, and their decisions go before a Division Bench of the High Court.
4. A litigant may not bypass the tribunal, except to challenge the statute creating it.
5. A question of vires before a single member Bench must be referred to a Bench of at least two, one a judicial member: the proviso to section 5(6).
6. R. Gandhi, 11 May 2010: creating the NCLT is valid; Parts 1B and 1C as structured were unconstitutional; members must be nearly equal in rank and competence to High Court judges; technical members must have expertise in the tribunal's own field; and technical members shall not exceed judicial members on a Bench.
7. The Tribunals Reforms Act 2021 abolished several appellate tribunals and laid down a uniform code in sections 3 to 7 for those retained.

Test yourself

1. State the holding in L. Chandra Kumar in the Court's own terms. That clause 2(d) of Article 323A and clause 3(d) of Article 323B, to the extent they exclude the jurisdiction of the High Courts and the Supreme Court under Articles 226, 227 and 32, are unconstitutional, as are section 28 of the Administrative Tribunals Act 1985 and the exclusion of jurisdiction clauses in all other legislation under those Articles; that the jurisdiction so conferred is part of the inviolable basic structure; and that tribunals may perform a supplemental role and test the validity of statutory provisions and rules, all their decisions being subject to scrutiny before a Division Bench of the High Court within whose jurisdiction they fall.

2. Did the decision achieve the purpose of the Forty-second Amendment? Explain. No. The purpose was to relieve the High Courts by substituting tribunals for them. Since the High Court's jurisdiction cannot be excluded, the tribunal became an additional tier below the High Court rather than a replacement for it, so a litigant who loses now has one more step than before.

3. May a litigant approach the High Court directly in a matter within a tribunal's jurisdiction? No, except where the legislation creating the tribunal is itself challenged. The tribunal continues to act as the court of first instance in the areas for which it was constituted.

4. What did R. Gandhi decide about who may sit on a tribunal? That members must as nearly as possible have the same position and status as High Court judges, achieved by appointing persons nearly equal in rank, experience or competence rather than by paying a judge's salary; that only Secretaries and Additional Secretaries could be considered as technical members of the NCLT, the qualification of Joint Secretaries and of persons with fifteen years in a Group A post being invalid; that a technical member must have expertise in the tribunal's own field; and that technical members shall not exceed judicial members on a Bench.

5. What does the Tribunals Reforms Act 2021 show about the direction of policy? That it runs in both directions. The Act abolished several appellate tribunals and returned their work to the High Courts, which is the opposite of the movement begun by the Forty-second Amendment, while laying down a uniform code of qualifications, removal, tenure, re-appointment and salary in sections 3 to 7 for the tribunals it retained.

Its limits. It is reactive, it requires a litigant with money and years, it reviews the decision rather than the wisdom of it, and it rarely reaches the officer personally. A quashed order is a defeat for the State, not for the person who made it.

Channel three: financial accountability

The theory. Money is the one thing every administration must account for, and the Constitution builds a chain for it. Article 148 creates the Comptroller and Auditor General with the tenure of a Supreme Court judge and removal only in the same manner; Article 149 provides for the duties and powers; Article 151 requires the reports to be laid before Parliament or the State Legislature.

The instruments. Audit, and the committees that read the audit: the Public Accounts Committee, the Committee on Public Undertakings and the Estimates Committee.

Its strength. It is systematic and continuous rather than dependent on a complainant, and it produces a public document.

Its limits. It comes after the money is spent, it reports rather than punishes, and its findings are only as useful as the committee that reads them.

Channel four: public accountability

The theory. An administration whose file can be read by any citizen behaves differently from one whose file cannot.

The instrument. The Right to Information Act 2005. Its section 3 confers the right on all citizens; section 4 imposes a duty of proactive disclosure so that the citizen need not ask; section 6 governs the request; section 8 lists the exemptions; and section 19 provides the appeals, ending with the Information Commission.

Its strength. It is the only channel that a citizen with no money and no lawyer can operate.

Its limits. Section 8 exemptions, delays, and the practical reality that a document not created cannot be disclosed, which encourages oral decision-making.

The Indian difficulty: the file

Facts. The chain of responsibility inside an Indian department runs through the file, and the file is written by many hands. A note is put up by a Section Officer, examined by an Under Secretary, commented on by a Deputy Secretary, and approved by a Joint Secretary, sometimes after an oral instruction from above that nobody records.

The consequence. When a decision turns out to be wrong, the question who decided it frequently has no clean answer. Everyone contributed and nobody decided.

The legal answer, so far as there is one. Articles 77 and 166 make the order the Government's, whoever wrote it, so the citizen is never left without a defendant. But the internal question, which officer bears the responsibility, is answered only by the disciplinary rules, and they require a charge, an inquiry and proof of misconduct rather than of error.

A worked example

A State buys medical equipment at a price later found to be four times the market rate.

Political. A question is asked in the Assembly. The minister answers that the purchase followed the prescribed procedure. Unless the House pursues it, that is the end of the political channel.

Legal. A public interest petition under Article 226 may be filed. The court can quash the contract and direct an inquiry. It cannot ordinarily order the officer to repay.

Financial. The Comptroller and Auditor General audits the purchase and reports it. The report goes to the Public Accounts Committee, which examines the Secretary and publishes its findings. This is usually where the facts actually come out, two or three years later.

Public. A citizen files a request under section 6 of the Right to Information Act 2005 for the file, the comparative statement and the approvals. If it is not exempt under section 8, the file itself becomes public, and this is frequently how a scandal reaches the other three channels in the first place.

Personal. Departmental proceedings against the purchasing officer under the Conduct and Discipline rules, with the safeguards of Article 311 and Karunakar fully applicable. This is the only channel that touches the individual, and it is the slowest.

What this does NOT mean

It does not mean accountability equals punishment. Rendering an account is the primary idea; a consequence follows only if the account is bad.

It does not mean the four channels are alternatives. They run together and they feed each other, and the example shows a transparency request setting the others in motion.

It does not mean an accountable administration is a timid one. An officer protected by Article 311 and required to record reasons is better placed to refuse an unlawful instruction, not worse.

It does not mean more oversight is always better. An administration that fears audit more than it fears failure stops taking decisions at all, which is the standard official complaint and is not a trivial one.

Quick revision

1. Responsibility is a duty owed; accountability is a liability to render an account to a forum with power to examine it.
2. Four channels: political, legal, financial and public.
3. Political: Articles 75(3) and 164(2), collective responsibility, weakened by scale, by the absence of individual ministerial resignation practice, and by a government majority.
4. Legal: Articles 226 and 32, the only channel giving an enforceable individual remedy, but reactive and rarely reaching the officer personally.
5. Financial: Articles 148, 149 and 151, the Comptroller and Auditor General and the Public Accounts Committee; systematic but after the event.
6. Public: the Right to Information Act 2005, sections 3, 4, 6, 8 and 19; the only channel a citizen can work alone.
7. The Indian difficulty is the file: many hands, no single decision-maker, and Articles 77 and 166 answer the citizen's problem without answering the internal one.

Test yourself

1. Distinguish responsibility from accountability and give the practical consequence of the distinction. Responsibility is the obligation to perform assigned duties honestly, efficiently and lawfully, and looks forward. Accountability is the liability to render an account of that performance to a competent forum, and looks backward. The practical consequence is that responsibility can be created by writing a rule while accountability requires an institution, so an administrator may be fully responsible in law and wholly unaccountable in fact.

2. Name the four channels of accountability with one constitutional or statutory provision for each. Political, under Articles 75(3) and 164(2); legal, under Articles 226 and 32; financial, under Articles 148, 149 and 151; and public, under the Right to Information Act 2005.

3. Why is political accountability weak in India? Because a minister answers for a department of thousands and cannot know what each officer did; because the convention of individual ministerial resignation for departmental failure has almost no Indian practice behind it; and because a government with a majority controls the House that is meant to hold it to account.

4. What is the strength and what is the limit of the financial channel? Its strength is that audit is systematic and continuous and does not depend on a complainant, and that it produces a public report laid before the legislature. Its limits are that it operates after the money is spent, that it reports rather than punishes, and that its value depends on the committee that reads it.

5. Explain the problem of the file, and say what Articles 77 and 166 do and do not solve. A decision inside a department passes through many officers and often incorporates unrecorded oral instructions, so when it goes wrong there is often no single person who decided it. Articles 77 and 166 solve the citizen's problem by making the order an act of the Government whoever wrote it, so there is always a defendant. They do not solve the internal problem of which officer bears responsibility, which is left to disciplinary proceedings that require proof of misconduct rather than of error.

Why it matters here. It is the clearest Indian example of a court building an accountability institution because the political process would not, and the Act of 2003 is the direct product.

The Act. Section 3 constitutes the Commission with a Central Vigilance Commissioner and Vigilance Commissioners. Section 4 provides for appointment by the President on the recommendation of a committee. Section 5 fixes the terms and conditions of service. Section 6 provides for removal, which requires a reference to the Supreme Court on the ground of misbehaviour. Section 8 sets out the functions and powers, including supervision over the Delhi Special Police Establishment in respect of offences under the Prevention of Corruption Act. Section 11 gives the Commission, while conducting an inquiry, the powers of a civil court in specified matters.

The Lokpal and the Lokayuktas

Origin. Recommended by the first Administrative Reforms Commission in 1966, and enacted only in 2013 after eight failed Bills.

The Act. Section 3 establishes the Lokpal. Section 4 provides for appointment of the Chairperson and Members on the recommendation of a Selection Committee. Section 14 defines the jurisdiction, which includes the Prime Minister subject to safeguards, Ministers, members of Parliament and officers of all groups of the Central Government, and extends to bodies substantially financed by the Government. Section 20 governs complaints, preliminary inquiry and investigation. Section 25 gives the Lokpal supervisory powers over an investigating agency in a matter referred by it. Section 63 requires every State to establish a Lokayukta by law.

Its distinctive feature. It is an ombudsman with investigative and prosecutorial reach rather than a body that merely reports, which is what distinguishes it from the Scandinavian model and from the British Parliamentary Commissioner.

Its weakness. It depends on appointments made by a committee dominated by the executive and the ruling party, and long vacancies have repeatedly reduced it to a shell.

The Right to Information Act 2005

The right. Section 3: subject to the provisions of the Act, all citizens shall have the right to information. Section 2 defines the key terms, including public authority and information.

Proactive disclosure. Section 4 obliges every public authority to maintain its records properly and to publish, on its own motion, a long list of categories, so that a citizen has to ask for as little as possible.

Procedure. Section 6 governs the request, section 7 the disposal within the prescribed time.

Exemptions. Section 8 lists them, and its clause (1)(j), which deals with personal information, was substituted with effect from 13 November 2025 by the Digital Personal Data Protection Act 2023, so a student citing the older wording is citing repealed text.

Institutions. Section 12 constitutes the Central Information Commission and section 15 the State Information Commissions. Section 18 sets out their powers and functions and section 19 the appeals.

Teeth. Section 20 provides penalties on a Public Information Officer who refuses without reasonable cause, which is the only place in this machinery where an individual officer pays personally and quickly.

Reach. Section 22 gives the Act overriding effect, and section 24 excludes certain intelligence and security organisations, with an exception for allegations of corruption and human rights violation.

A distinctions table

A worked example

A road built at public expense fails within a year.

The CAG audits the contract, finds the specification was diluted after the tender, and reports it. The Public Accounts Committee examines the Secretary.

The CVC receives a reference, and because the allegation involves an offence under the Prevention of Corruption Act it exercises supervision over the investigating agency under section 8.

The Lokpal, on a complaint under section 20, may order a preliminary inquiry, and if satisfied, an investigation, and may supervise it under section 25.

A citizen files a request under section 6 of the Right to Information Act 2005 for the tender file and the approvals, and if the Public Information Officer refuses without reasonable cause, section 20 makes him personally liable to a penalty.

Four institutions, four different starting points, and only two of them reach the officer.

What this does NOT mean

It does not mean India lacks accountability institutions. It has more than most comparable systems. What it lacks is the habit of acting on their findings.

It does not mean these bodies replace the courts. They supplement judicial review, and their own decisions are subject to it.

It does not mean the Lokpal is a court. It inquires, investigates and sanctions prosecution; trial is by the special court.

It does not mean the RTI Act reaches everything. Section 8 exempts, section 24 excludes named organisations, and a decision never written down cannot be disclosed.

Quick revision

1. Four standing institutions: the CAG, the CVC, the Lokpal and Lokayuktas, and the Information Commissions.
2. CAG: Articles 148, 149 and 151; appointed by the President, removable like a Supreme Court judge, reports laid before the legislature.
3. CVC Act 2003, sections 3, 4, 5, 6, 8 and 11; the Act followed the directions in Vineet Narain, AIR 1998 SC 889.
4. Lokpal and Lokayuktas Act 2013, sections 3, 4, 14, 20, 25 and 63; section 63 requires every State to establish a Lokayukta.
5. RTI Act 2005: section 3 the right, section 4 proactive disclosure, sections 6 and 7 procedure, section 8 exemptions, sections 12 and 15 the Commissions, sections 18 and 19 powers and appeals, section 20 penalties, section 22 overriding effect, section 24 excluded organisations.
6. Section 8(1)(j) was substituted with effect from 13 November 2025 by the Digital Personal Data Protection Act 2023.
7. Only the RTI Act and the Lokpal reach the individual officer directly.

Test yourself

1. Set out the constitutional position of the Comptroller and Auditor General. Article 148: appointed by the President, removable only in like manner and on the like grounds as a judge of the Supreme Court, with salary and conditions not variable to his disadvantage after appointment and ineligibility for further office under the Union or a State afterwards. Article 149: duties and powers prescribed by Parliament. Article 151: reports submitted to the President or the Governor and laid before the legislature.

2. What did Vineet Narain decide, and what statute followed? It directed that the Central Vigilance Commission be given statutory status and supervision over the Central Bureau of Investigation in corruption matters, that the Director have a fixed minimum tenure of two years, and that appointment follow a specified selection process, the directions to hold the field until Parliament legislated. The Central Vigilance Commission Act 2003 followed.

3. Name five sections of the Right to Information Act 2005 and say what each does. Section 3, the right of all citizens to information; section 4, the obligation of proactive disclosure; section 6, the request; section 8, the exemptions; and section 20, the penalty on a Public Information Officer who refuses without reasonable cause.

4. Which of the four institutions reach the individual officer, and how? The Right to Information Act, through the personal penalty on a Public Information Officer under section 20; and the Lokpal, through inquiry, investigation and sanction for prosecution under sections 20 and 25. The CAG reports without punishing, and the CVC acts through the department and the investigating agency.

5. Give one recent change to the RTI Act that a student citing older material would get wrong. Section 8(1)(j) was substituted with effect from 13 November 2025 by the Digital Personal Data Protection Act 2023, so the older wording of the personal information exemption, with its public activity and unwarranted invasion of privacy tests inside the clause, is no longer the text.

Article 227. Every High Court has superintendence over all courts and tribunals throughout its territories, which is how it reaches a tribunal that has gone wrong without any writ being asked for.

Article 136. Special leave to appeal to the Supreme Court from any judgment, decree, determination, sentence or order of any court or tribunal, which is discretionary and not a right.

The five writs

Habeas corpus, meaning "you shall have the body". Issued to produce a person detained and to test the legality of the detention. It is the remedy against unlawful arrest, preventive detention and any custody without authority of law.

Mandamus, meaning "we command". Issued to compel the performance of a public duty. Chapter [Duty and the Writ of Mandamus] works it out, including the requirement of a demand and refusal and the rule in Praga Tools Corporation v. C.A. Imanual, AIR 1969 SC 1306, that there must be a legal right in the applicant to the performance of a legal duty by the respondent.

Prohibition. Issued to a body exercising judicial or quasi-judicial functions, while a proceeding is still pending, to stop it exceeding its jurisdiction.

Certiorari. Issued to quash an order already made by such a body, on the ground of want or excess of jurisdiction, error of law apparent on the face of the record, violation of natural justice, or fraud.

Quo warranto, meaning "by what authority". Issued to ask a person holding a public office to show the authority by which he holds it, and to oust him if there is none.

What the court will and will not do

It reviews the decision-making process, not the decision. Tata Cellular v. Union of India, AIR 1996 SC 11, states this in terms, adopting Lord Diplock's threefold classification of the grounds as illegality, irrationality and procedural impropriety.

Facts. Tata Cellular concerned the evaluation of tenders for cellular mobile telephone licences in the four metropolitan cities, which an unsuccessful tenderer challenged.

Held. Judicial review of an administrative decision is review of the manner in which the decision was made and not an appeal against the decision itself. The Court set out the grounds as illegality, irrationality in the Wednesbury sense and procedural impropriety, and held that the Government must have freedom of contract subject to those limits.

Why it matters here. It is the Indian judgment that reproduces the whole English apparatus of review, including the facts and language of Associated Provincial Picture Houses Ltd v. Wednesbury Corporation, (1948) 1 KB 223, and Lord Diplock's speech in Council of Civil Service Unions v. Minister for the Civil Service, 1988 AC 858, and it is the authority an Indian answer should use for both.

It will not substitute its own view of the merits, of policy, or of the wisdom of an administrative choice: Divisional Manager, Aravali Golf Club v. Chander Hass, (2008) 1 SCC 683, is the modern warning against judicial overreach.

Facts. Two workmen employed as tractor drivers claimed regularisation against posts of malis, and the courts below effectively created posts for them.

Held. Judges must exercise restraint and not encroach into the executive or the legislative domain, and the creation of a post is not a judicial function.

Why it matters here. It is the answer to the examiner who expects an uncritical celebration of judicial activism, and it belongs in any honest answer on the courts as a check.

Public interest litigation

The rule that only a person whose right was infringed could move a court was relaxed from the late 1970s, so that any public spirited person may move for a class unable to move for itself. The gain is access for people who would otherwise have none; the cost is a docket carrying disputes that are not really disputes, and a court drawn into administration. Vineet Narain v. Union of India, AIR 1998 SC 889, is public interest litigation at its most productive, having produced the Central Vigilance Commission Act 2003.

The limits, stated honestly

It is reactive. No litigant, no remedy. The administration that nobody sues is unreviewed.

It costs money and years. The citizen most likely to be a victim of administrative lawlessness is the least able to litigate.

It reaches the order and rarely the officer. A quashed order costs the State; it usually costs the officer nothing.

It cannot supply what it strikes down. A court can quash a refusal of a licence; it cannot run the licensing system.

Judicial review is not appeal. An unwise decision lawfully made survives.

A worked example

A municipal officer seals a shop without notice, claiming a power under a bye-law that in fact says nothing about sealing. What can a court actually do, and by which writ?

Certiorari to quash the sealing order, because the order was made without jurisdiction: the bye-law confers no such power.

Mandamus to command the Corporation to unseal the premises, because once the order is quashed the officer is under a public duty to restore the position.

Prohibition would lie if the Corporation had begun proceedings to seal a second shop on the same footing and had not yet made the order, since prohibition stops what is still going on.

Quo warranto would lie only if the officer's own appointment to the office were in question, which it is not.

Habeas corpus does not arise, since nobody is detained.

What the court will not do. It will not decide whether sealing the shop was a good idea, nor substitute its own view of the public interest, nor make the decision the Corporation should have made. It confines itself to the question of legality.

The pattern to carry away: identify the defect first, then choose the writ, never the other way round.

Quick revision

1. Judicial review rests on Article 13, Article 32, Articles 226 and 227, and Article 136.
2. Article 226 is wider than Article 32 because it runs for fundamental rights and for any other purpose.
3. The five writs: habeas corpus, mandamus, prohibition, certiorari, quo warranto.
4. Tata Cellular, AIR 1996 SC 11: review is of the decision-making process, on the grounds of illegality, irrationality and procedural impropriety.
5. Aravali Golf Club, (2008) 1 SCC 683: judicial restraint, and the creation of a post is not a judicial function.
6. Public interest litigation relaxed standing; it buys access and costs focus.
7. Judicial review is part of the basic structure and cannot be excluded: L. Chandra Kumar, AIR 1997 SC 1125.
8. Limits: reactive, slow and costly, reaches the order rather than the officer, and cannot administer what it strikes down.

Test yourself

1. On what constitutional provisions does judicial review of administrative action rest? Article 13, which voids law inconsistent with fundamental rights and includes rules, regulations and notifications within law; Article 32, which makes the right to move the Supreme Court for enforcement of Part III itself a fundamental right; Articles 226 and 227, which give the High Courts the writ and supervisory jurisdictions; and Article 136, which allows special leave to appeal.

2. Why is Article 226 wider than Article 32? Because the High Court may issue writs both for the enforcement of fundamental rights and for any other purpose, so it reaches an ordinary legal right as well as a constitutional one, while Article 32 is confined to the enforcement of Part III.

3. Name the five writs and say when each is used. Habeas corpus, to test the legality of a detention; mandamus, to compel performance of a public duty; prohibition, to stop a judicial or quasi-judicial body exceeding jurisdiction while the proceeding is pending; certiorari, to quash an order already made for want of jurisdiction, error of law on the face of the record, breach of natural justice or fraud; and quo warranto, to require the holder of a public office to show his authority.

4. State the distinction between review and appeal, with authority. Review examines the manner in which a decision was made, not the decision itself, so an unwise decision lawfully made survives. Tata Cellular v. Union of India, AIR 1996 SC 11, states this and lists the grounds as illegality, irrationality in the Wednesbury sense and procedural impropriety.

5. Give three limits on the courts as a check on administrative lawlessness. Review is reactive, so an administration nobody sues goes unreviewed; litigation costs money and years, which excludes the citizens most exposed to administrative lawlessness; and the remedy reaches the order rather than the officer, so a quashed decision usually costs the individual decision-maker nothing.

Standard setting. Prescribing what the product or the service must be: purity, safety, disclosure, quality of service.

Disclosure. Requiring information to be published so that the market can judge, which is the principal technique of securities regulation.

Conduct rules. Forbidding particular behaviour, as competition law does.

The Essential Commodities Act 1955 as the model

It is worth knowing one regulatory statute properly, and this is the one MU's own cases are built on.

Section 2 defines the working terms of the Act, including notified order and order.

Section 2A is where the scope of the Act now sits. For the purposes of the Act, essential commodity means a commodity specified in the Schedule; the Central Government may add a commodity if satisfied that it is necessary in the public interest, for reasons specified in the notification, and may remove one only in consultation with the State Governments. The asymmetry is deliberate: it is easier to bring something under control than to release it.

Section 3 is the engine. If the Central Government is of opinion that it is necessary or expedient so to do for maintaining or increasing supplies of any essential commodity, or for securing their equitable distribution and availability at fair prices, or for securing any essential commodity for the defence of India or the efficient conduct of military operations, it may by order provide for regulating or prohibiting the production, supply and distribution of that commodity and trade and commerce in it. Its sub-sections then deal with compulsory sale to the Government and the price payable.

Section 5 allows the Central Government to delegate its powers to a State Government or an officer, which is why most orders under the Act are administered by State officials.

Section 6 gives an order under section 3 effect notwithstanding anything inconsistent in any other enactment.

Section 6A provides for confiscation of an essential commodity seized for contravention.

Section 7 provides the penalties.

The two leading cases on it are both about price fixation and both hold it legislative: Union of India v. Cynamide India Ltd, AIR 1987 SC 1802, and Shri Sitaram Sugar Co Ltd v. Union of India, AIR 1990 SC 1277.

Facts of the second. Notifications under section 3(3C) of the Act fixed the price of levy sugar on a zonal basis. Producers said the Government had failed to have regard to the four factors the sub-section lists and had given them no hearing.

Held. The notifications were upheld. Price fixation under the sub-section is legislative in character and is done for the industry as a whole by costing a representative cross-section of manufacturing units, not for any individual seller. The words having regard to are a legislative instruction for general guidance, directory rather than strictly mandatory.

Why it matters here. It shows what judicial review of a regulatory measure actually consists of: not whether the price was right, but whether the power existed and the relevant matters were considered.

Regulation, ownership and prohibition distinguished

A worked example

The State decides that a common antibiotic is being sold at unaffordable prices.

Ownership would mean the State manufacturing the drug itself. Expensive, slow, and it does not touch the private manufacturers.

Prohibition would mean forbidding its sale above a price on pain of the activity ceasing. That is not really prohibition, it is price control.

Regulation is what actually happens. Under section 3 of the Essential Commodities Act 1955 the Government makes a Drugs (Prices Control) Order. The Order fixes a formula, an authority calculates a ceiling price, and a notification publishes it. A manufacturer who sells above it commits an offence under section 7 and may have his stock confiscated under section 6A.

The legal questions that follow are the whole of this book. Is the Order within section 3? Was the price fixation legislative, so that no hearing was owed, as Cynamide holds? Was the ceiling so low that it destroys the business and therefore fails Article 19(6)? Was the formula applied to this manufacturer as it was to others, under Article 14?

What this does NOT mean

Regulation is not the opposite of a free market. Securities regulation exists so that a market can function, not to replace it.

Regulation is not the same as nationalisation. The regulated firm is privately owned and takes the profit and the risk.

Regulation is not always in the public interest in fact. Capture, in which the regulator comes to see the industry's interest as the public interest, is a standing risk and is the strongest argument for the transparency requirements in Chapter [E-Governance: Administration by Electronic Means].

Deregulating is not the same as abolishing law. It changes the instrument, as the next chapters show.

Quick revision

1. Regulation is sustained public control over a private activity, by rules made under statutory authority and enforced by licence, inspection, direction and penalty.
2. Reasons: market failure, protection of the weaker party, distribution, safety and public health, and in India the Directive Principles, especially Article 39(b) and (c).
3. Instruments: entry control, price control, quantity and distribution control, standard setting, disclosure and conduct rules.
4. Industries (Development and Regulation) Act 1951: section 10 registration, section 11 licence for a new undertaking.
5. Essential Commodities Act 1955: section 2 definitions, section 2A essential commodity means a commodity in the Schedule and the asymmetric power to amend it, section 3 the power to make orders, section 5 delegation, section 6 overriding effect, section 6A confiscation, section 7 penalties.
6. Cynamide, AIR 1987 SC 1802, and Sitaram Sugar, AIR 1990 SC 1277: price fixation is legislative, so no hearing is owed and the words having regard to are directory.
7. The constitutional limit is Article 19(6): only reasonable restrictions in the interests of the general public.

Test yourself

1. Define regulation and distinguish it from ownership and prohibition. Regulation is sustained and focused control by a public agency over a lawful activity carried on by a private person, imposed by rules made under statutory authority and enforced by licensing, inspection, direction and penalty. Ownership means the State performs the activity itself; prohibition means the activity may not be carried on at all. In regulation the private person keeps the activity, the profit and the risk.

2. Name the four standard cases of market failure and give an Indian example of each. Natural monopoly, as in electricity distribution; asymmetric information, as in medicines, where the buyer cannot judge the product; externalities, as in industrial pollution, where the cost falls outside the transaction; and public goods, which nobody will supply because nobody can be excluded.

3. Set out section 3 of the Essential Commodities Act 1955. If the Central Government is of opinion that it is necessary or expedient so to do for maintaining or increasing supplies of any essential commodity, or for securing their equitable distribution and availability at fair prices, or for securing any essential commodity for the defence of India or the efficient conduct of military operations, it may by order provide for regulating or prohibiting the production, supply and distribution of that commodity and trade and commerce in it.

4. Is a hearing owed before a price is fixed under that Act? Give authority. No. Union of India v. Cynamide India Ltd, AIR 1987 SC 1802, held price fixation under a Drugs (Prices Control) Order to be legislative activity to which natural justice does not apply, and Shri Sitaram Sugar Co Ltd v. Union of India, AIR 1990 SC 1277, held the same of levy sugar prices fixed for the industry as a whole by costing a representative cross-section.

5. Which constitutional provisions justify and which limit regulation in India? Article 246 with the relevant entries supplies the legislative power, and Article 39(b) and (c) supply the stated justification, directing that material resources be distributed to subserve the common good and that the economic system not result in concentration of wealth. Article 19(1)(g) and Article 19(6) supply the limit, since a restriction on the freedom to practise any profession or carry on any occupation, trade or business must be reasonable and in the interests of the general public.

Four: the Foreign Exchange Regulation Act 1973. It made dealings in foreign exchange unlawful unless permitted, treated contravention as a criminal offence, and placed the burden of proof on the accused. It was replaced by the Foreign Exchange Management Act 1999, whose very name records the change: section 3 prohibits dealing in foreign exchange except as provided, but section 5 makes current account transactions generally free subject to reasonable restrictions, section 6 deals with capital account transactions, section 10 with authorised persons, and section 13 makes contravention punishable by penalty rather than by imprisonment as the primary sanction. Regulation replaced regulation, but a civil regime replaced a criminal one.

What the system produced as administrative law

A very large volume of discretionary decisions. Every licence, every expansion, every change of product and every import was a decision by an official, so the whole of Module IV had material to work on.

A body of case law about the reach of review. Barium Chemicals Ltd v. Company Law Board, AIR 1967 SC 295, and Rohtas Industries Ltd v. S.D. Agarwal, AIR 1969 SC 707, are both about investigations into companies, and both hold that a statutory power exercisable when an authority is of opinion that circumstances exist is not beyond review: the circumstances must actually exist and the court may examine whether there was material.

A body of case law about promises. Because so much depended on assurances given by departments, promissory estoppel against the State grew here: Union of India v. Indo-Afghan Agencies Ltd, AIR 1968 SC 718, and Motilal Padampat Sugar Mills Co Ltd v. State of Uttar Pradesh, AIR 1979 SC 621.

Facts of the second. Relying on a government announcement of a three year sales tax holiday for new industrial units, and on a written confirmation from the Director of Industries, the appellant set up a vanaspati plant. The State then resiled and offered only partial concessions.

Held. Promissory estoppel binds the Government. Where a promise is made intending it to be acted on and it is acted on, the promisor is bound unless equity requires otherwise; executive necessity is no defence unless the facts justifying it are placed before the court. The plea of waiver, not having been pleaded, could not be raised.

Why it matters here. In a system where a business is built on a departmental assurance, the enforceability of that assurance is the difference between a legal system and a bazaar.

The criticism, stated fairly on both sides

Against the system. Delay, because every decision took months. Rent seeking, because a scarce permission is worth paying for. Protection of the incumbent, because a licensed firm faces no new entrant. Misallocation, because the official rather than the market chose who produced what. Concentration despite the MRTP Act, because only large firms could afford the process.

For the system. It was a deliberate choice made by an elected government of a poor country with almost no domestic capital, seeking to build heavy industry, to avoid dependence on foreign capital and to prevent the concentration of wealth that Article 39(c) names. The Directive Principles are in the Constitution, and the licence system was an attempt to give them effect. A student writing only the first list has written a pamphlet, not an answer.

A worked example

Vijay Sathe wants to make sewing machines in Nashik in 1985.

Registration and licence. Sewing machines are in the First Schedule, so he needs a licence under section 11.

Capacity. The licence states a capacity. Producing above it requires permission for substantial expansion under section 13.

Product. He may not begin making bicycle parts in the same plant without a licence under section 11A.

Machinery. Importing a machine needs an import licence, and the foreign exchange to pay for it needs permission under the Foreign Exchange Regulation Act 1973.

Size. If his group's assets exceed the MRTP threshold, his expansion needs approval under that Act as well.

Raw material. If steel is under distribution control, his allocation comes from an order under section 3 of the Essential Commodities Act 1955.

Six permissions for one factory, from four departments, under four statutes. That is the licence permit raj, and every one of those six decisions is an administrative decision reviewable on the grounds in this book.

What this does NOT mean

It does not mean the statutes were repealed in 1991. The Industries (Development and Regulation) Act 1951 and the Essential Commodities Act 1955 are both still in force. What changed was the Schedule, the notifications and the policy.

It does not mean there was no law. There was a great deal of law, and much of the Indian administrative law a student learns was made in litigation about it.

It does not mean control has gone. The Foreign Exchange Management Act 1999 still prohibits dealing in foreign exchange except as provided, and section 3 of the Essential Commodities Act is still available and has been used.

Quick revision

1. Four pillars: the IDRA 1951, the Essential Commodities Act 1955, the MRTP Act 1969 and the FERA 1973.
2. IDRA: section 10 registration, section 11 licence for a new undertaking, section 11A licence for a new article, section 13 substantial expansion, sections 15 and 16 investigation and directions, section 18A takeover of management, section 29B exemption, and the First Schedule.
3. The MRTP Act regulated size and was replaced by the Competition Act 2002, which regulates conduct.
4. FERA was replaced by FEMA 1999: section 3 the prohibition, section 5 current account transactions generally free, section 6 capital account, section 13 penalty rather than imprisonment.
5. The system produced the Indian case law on subjective satisfaction, Barium Chemicals, AIR 1967 SC 295, and Rohtas Industries, AIR 1969 SC 707.
6. And on promissory estoppel against the State, Indo-Afghan Agencies, AIR 1968 SC 718, and Motilal Padampat, AIR 1979 SC 621.
7. Criticisms: delay, rent seeking, protection of incumbents, misallocation. Defence: a deliberate development strategy under Part IV, with almost no domestic capital available.

Test yourself

1. Name the four statutes on which the licence permit raj rested and say what each controlled. The Industries (Development and Regulation) Act 1951, controlling entry, expansion and product; the Essential Commodities Act 1955, controlling production, distribution and price of essential commodities; the Monopolies and Restrictive Trade Practices Act 1969, controlling the expansion, merger and takeover of large undertakings; and the Foreign Exchange Regulation Act 1973, controlling every dealing in foreign exchange.

2. Set out the licensing scheme of the IDRA 1951 by section. Section 10 requires registration of an existing industrial undertaking in a scheduled industry; section 11 a licence for a new one; section 11A a licence to produce a new article in an existing undertaking; section 13 a licence or permission for substantial expansion and change of location; sections 15 and 16 provide for investigation and directions; section 18A for the Government to assume management; and section 29B for exemption in special cases.

3. What changed when the MRTP Act was replaced by the Competition Act 2002? The principle changed from regulating size to regulating conduct. The MRTP Act treated concentration of economic power as an evil in itself and required approval for the expansion, merger and takeover of large undertakings. The Competition Act regulates anti-competitive agreements, abuse of dominance and combinations by their effect on competition, not by the size of the enterprise as such.

4. Which two lines of Indian case law grew out of this period? The law on subjective satisfaction, in which Barium Chemicals, AIR 1967 SC 295, and Rohtas Industries, AIR 1969 SC 707, held that a power exercisable when the authority is of opinion that circumstances exist requires those circumstances actually to exist and is reviewable for the absence of material; and the law of promissory estoppel against the State, in Indo-Afghan Agencies, AIR 1968 SC 718, and Motilal Padampat, AIR 1979 SC 621.

5. State the case for the licence permit raj, as its designers would have put it. That a poor country with almost no domestic capital, seeking to build heavy industry within a democratic framework, had to direct scarce capital and foreign exchange to the uses the plan preferred; that leaving the choice to the market would have concentrated wealth and production in a few hands, which Article 39(c) of the Constitution directs the State to prevent; and that the Directive Principles in Part IV are a constitutional instruction to which the licensing system was an attempt to give effect.

Competition law changed principle. The Monopolies and Restrictive Trade Practices Act 1969 controlled size; the Competition Act 2002 controls conduct. Its section 7 establishes the Competition Commission of India, section 18 sets out its duties, section 19 its power of inquiry into agreements and abuse of dominance, section 27 its orders after inquiry and section 64 its power to make regulations. Bigness ceased to be an offence.

The public sector was opened. Areas reserved for the State were progressively opened to private participation, and government shareholdings were reduced by disinvestment.

And the regulator appeared. Chapter [The Regulatory Agencies of the Indian State] sets out the design. The Securities and Exchange Board of India Act 1992, the Telecom Regulatory Authority of India Act 1997, the Insurance Regulatory and Development Authority Act 1999 and the Electricity Act 2003 are the legislative record of the change, and they are Acts of Parliament rather than executive policy.

Regulation to de-regulation: the shift described precisely

The single sentence that carries this table: the State stopped deciding who may enter and started deciding how those who enter must behave.

What this did to administrative law

The subject did not shrink; it moved. Disputes about licences were replaced by disputes about regulations, tariffs, disclosures and penalties.

The new bodies were harder to control politically and easier to control judicially. A regulator is at arm's length from Parliament and squarely inside Article 226.

The volume of delegated legislation rose sharply. Every regulator makes regulations, and Module III applies to all of them.

Transparency became necessary. A State that no longer allocates but supervises has to publish, and the Right to Information Act 2005 belongs to this period.

A new question appeared: who regulates the regulator? The answer, in Indian law, is the appellate tribunal and the High Court, and the proof that the answer is real is Cellular Operators Association of India v. Telecom Regulatory Authority of India, AIR 2016 SC 2336, in which a regulation of TRAI was struck down as ultra vires the parent Act and manifestly arbitrary.

A worked example: the same factory, thirty years later

Take Vijay Sathe's sewing machine factory from the previous chapter and put it in the present.

Entry. No licence under section 11 is needed unless the product is on the short compulsory licensing list. He registers, files, and starts.

Capacity and product. He decides both.

Machinery and foreign exchange. He imports under the trade policy and pays under the Foreign Exchange Management Act 1999, section 5 treating the payment as a current account transaction.

Size. No MRTP approval. If he later acquires a competitor, the Competition Commission examines the combination for its effect on competition under the Competition Act 2002.

What he now faces instead. Product standards, environmental clearance and consent to operate, labour compliances, goods and services tax registration and returns, and consumer law. The number of interactions with the State has not fallen. Their nature has changed from asking permission to demonstrating compliance.

What this does NOT mean

It does not mean the State withdrew. It changed instrument. The regulatory statutes passed after 1991 are longer and more detailed than the ones they replaced.

It does not mean control disappeared. Section 3 of the Essential Commodities Act 1955 remains available, and has been used since.

It does not mean the reforms were uncontested. They were, and are, a live political argument. An answer that treats liberalisation as self-evidently correct is as one sided as one that treats it as self-evidently wrong.

It does not mean the change was made by legislation alone. Most of the immediate liberalisation was policy and notification; the legislation came afterwards, in the regulator statutes.

Quick revision

1. The trigger was a balance of payments crisis in 1991, with reserves sufficient for only a few weeks of imports.
2. The content was liberalisation, privatisation and globalisation.
3. The method was not repeal: the IDRA 1951 and the Essential Commodities Act 1955 remain in force, and section 11 is still in the IDRA.
4. What changed was the First Schedule, the exemptions under section 29B and the notifications.
5. FERA was replaced by FEMA 1999: section 3 prohibition, section 5 current account generally free, section 6 capital account, civil penalty instead of imprisonment.
6. MRTP was replaced by the Competition Act 2002: sections 7, 18, 19, 27 and 64; conduct rather than size.
7. The institutional consequence was the independent statutory regulator, and with it a rise in delegated legislation and a new question about who regulates the regulator.
8. Cellular Operators, AIR 2016 SC 2336, answers that question: the appellate tribunal and the High Court do.

Test yourself

1. What triggered the 1991 reforms, and what were their three components? A balance of payments crisis in which foreign exchange reserves fell to a level sufficient for only a few weeks of imports. The three components were liberalisation, the removal of internal controls on industry and trade; privatisation, the reduction of the State's own economic role; and globalisation, the opening of the economy to foreign trade and capital.

2. Were the controlling statutes repealed in 1991? Explain the legal method actually used. No. The Industries (Development and Regulation) Act 1951 and the Essential Commodities Act 1955 both remain in force, and section 11 of the former still requires a licence for a new undertaking in a scheduled industry. Liberalisation was effected by pruning the First Schedule, by exemptions under section 29B and by withdrawing notifications, that is by policy and subordinate action rather than by repeal.

3. State the change of principle in foreign exchange law and in competition law. In foreign exchange, from FERA 1973, under which every transaction was forbidden unless permitted and contravention was a crime, to FEMA 1999, where section 3 retains a prohibition but section 5 makes current account transactions generally free and section 13 makes contravention punishable by penalty. In competition, from the MRTP Act 1969, which controlled the size of undertakings, to the Competition Act 2002, which controls anti-competitive conduct whatever the size.

4. In one sentence, how did the State's role change? The State stopped deciding who may enter an industry and started deciding how those who enter must behave.

5. Did administrative law shrink after 1991? Justify your answer. No, it moved. Disputes about licences were replaced by disputes about regulations, tariffs, disclosures and penalties; the volume of delegated legislation rose because every regulator makes regulations; and a new question arose about controlling the regulators themselves, answered by the appellate tribunals and by Article 226, as Cellular Operators, AIR 2016 SC 2336, demonstrates.

Competition has to be created and then protected. An opened sector needs interconnection rules, licensing conditions, universal service obligations and a competition authority, none of which a monopoly needed. The Competition Act 2002 is itself a product of liberalisation, and its sections 18, 19 and 27 gave India a conduct regulator it had not had before.

A network cannot be left to the market. Wires, pipes and spectrum are natural monopolies even where the services over them are competitive, so tariff regulation replaces price control rather than abolishing it.

Consumers who used to deal with a department now deal with a company. The protection previously implicit in ministerial responsibility has to be rebuilt as a right, which is why consumer and disclosure regulation grew in the same period.

And the regulator itself has to be controlled. Cellular Operators Association of India v. Telecom Regulatory Authority of India, AIR 2016 SC 2336, is the demonstration.

Facts. TRAI made a regulation under section 36(1) of the TRAI Act 1997 requiring a service provider to credit one rupee to a subscriber for every call drop, up to three a day. The operators said it was beyond the Act and manifestly arbitrary. The High Court upheld it.

Held. The regulation was struck down. A regulation made by a statutory regulator is subordinate legislation and is open to challenge for being ultra vires the parent Act and for manifest arbitrariness; this one fixed liability without reference to fault and was not supported by the material before the authority.

Why it matters here. It is the answer to the examiner's implied question, whether de-regulation has left the citizen or the firm without protection. It has not; it has changed who supplies the protection.

A distinctions table

The Indian record, stated carefully

Where de-regulation went furthest. Industrial licensing, foreign investment in most sectors, and the pricing of most manufactured goods.

Where it went partly. Telecommunications, insurance and electricity, all of which were opened to private entry and then handed to regulators rather than to the market.

Where it did not go. Agriculture and food distribution remain heavily controlled, and section 3 of the Essential Commodities Act 1955 is still available for stock limits and movement restrictions. Land, labour and small industry protections remain largely in place. So the Indian State is not a de-regulated State; it is a State that has de-regulated in some sectors and re-regulated in others.

What this does NOT mean

De-regulation is not the same as no law. The obligations become general rules instead of individual permissions.

It is not irreversible, and the clearest proof is on the face of the Essential Commodities Act 1955 itself. A sub-section (1A) was inserted into section 3 in 2020 to confine stock control on foodstuffs such as cereals, pulses, oilseeds, onion and potato to extraordinary circumstances. The Act as it now stands prints that sub-section as omitted by Act 40 of 2021 with effect from 30 November 2021, and the Act's own list of amending Acts names Act 40 of 2021 as the Farm Laws Repeal Act 2021. So the most recent movement on India's oldest control statute was back towards control, undoing a liberalisation that had lasted about eighteen months. Appellate tribunals have likewise been abolished and their work returned to the High Courts by the Tribunals Reforms Act 2021.

It is not automatically good or bad. It transfers a decision from an official to a firm, which improves speed and reduces rent seeking, and it removes a protection some people relied on. Both are true.

It is not the same as the police State returning. Chapter [From the Police State to the Welfare State] explains that the direction of travel is in the instrument, not in the ambition.

A worked example

Take one field, the manufacture of a drug, and watch de-regulation happen to it.

Before. A manufacturer needed an industrial licence to make the drug at all, a separate approval to expand capacity, an import licence for the equipment, and a price approval before selling. Four permissions, four discretions, four officers.

After. The industrial licence goes. In its place stand a registration requirement, a set of published good manufacturing practice standards, an inspection regime, and a penalty for breach. The price approval survives for a listed set of essential drugs and disappears for the rest.

What was removed. The requirement of prior permission, and with it the discretion to say no to one applicant and yes to another.

What replaced it. A rule of general application, published in advance, that everyone must satisfy, enforced after the event.

What did not change. The State is still in the field, and arguably more heavily: it now inspects, it publishes standards, it penalises, and it regulates prices for essential drugs.

The examinable point: de-regulation moved the control from the front of the process to the back. It did not remove it. An answer that equates de-regulation with the withdrawal of the State is describing something that did not happen in India.

Quick revision

1. De-regulation is the reduction or removal of governmental restrictions on an economic activity.
2. Its four Indian forms: delicensing, decontrol, disinvestment and re-regulation.
3. Delicensing was done by pruning the First Schedule of the IDRA 1951 and by exemptions under section 29B, not by repeal.
4. Re-regulation is the form most often missed: the Electricity Act 2003, sections 61, 62, 79 and 86, hands tariff to a commission.
5. Reasons: obsolete controls, compliance cost, capture, technological change, and the need for private capital.
6. The paradox: de-regulation produces more law, because competition must be created and protected, networks must still be regulated, consumer protection must be rebuilt, and the regulator itself must be controlled.
7. Cellular Operators, AIR 2016 SC 2336: the regulator's own regulation was struck down as ultra vires and manifestly arbitrary.
8. India has de-regulated in some sectors and re-regulated in others; agriculture and food distribution remain controlled.
9. De-regulation is reversible: section 3(1A) of the Essential Commodities Act 1955, inserted in 2020 to limit stock control on foodstuffs, was omitted by the Farm Laws Repeal Act 2021 with effect from 30 November 2021.

Test yourself

1. Define de-regulation and name its four Indian forms. The reduction or removal of governmental restrictions on the conduct of an economic activity, so that decisions previously requiring permission are left to the person carrying it on, subject to rules of general application. Its four Indian forms are delicensing, decontrol, disinvestment and re-regulation.

2. Explain the de-regulation paradox with two illustrations. De-regulation produces more law rather than less. Opening a monopoly sector requires interconnection rules, licensing conditions and a competition authority that a monopoly never needed, which is why the Competition Act 2002 is itself a product of liberalisation; and a network such as wires or spectrum remains a natural monopoly whatever happens to the services over it, so tariff regulation under sections 61 and 62 of the Electricity Act 2003 replaces price control instead of abolishing it.

3. How was industrial delicensing actually achieved in law? Not by repealing the Industries (Development and Regulation) Act 1951, which remains in force with section 11 intact, but by pruning the First Schedule of scheduled industries and by exempting industries from compulsory licensing, section 29B being the statutory power to exempt in special cases.

4. Give a case showing that de-regulation has not left the firm or the citizen unprotected. Cellular Operators Association of India v. Telecom Regulatory Authority of India, AIR 2016 SC 2336. A regulation of the sector regulator requiring compensation for call drops was struck down as ultra vires section 36 of the TRAI Act 1997 and as manifestly arbitrary, which shows that the new regulators are subject to the same controls as any other maker of delegated legislation.

5. Is India a de-regulated State? Justify your answer. No. It has de-regulated industrial entry, most foreign investment and the pricing of most manufactured goods; it has re-regulated telecommunications, insurance and electricity by handing them to statutory commissions; and it has not de-regulated agriculture and food distribution, where section 3 of the Essential Commodities Act 1955 remains available and has been used.

Section 5 allows the power to be delegated to a State Government or an officer, which is why in practice the control order is administered by a District Supply Officer and not by Delhi.

Sections 6A to 6C provide for confiscation of a seized commodity, a show cause notice before confiscation of foodgrains, and an appeal. Section 7 provides the penalties.

Judicial review of a control order

The question is never whether the price was right.

Facts. Shri Sitaram Sugar Co Ltd v. Union of India, AIR 1990 SC 1277, concerned notifications under section 3(3C) of the Act fixing the price of levy sugar on a zonal basis. The producers argued that the Government had not properly had regard to the four factors the sub-section lists and that they had been given no hearing.

Held. The notifications were intra vires. Price fixation of this kind is legislative in character; it is done for the industry as a whole by a process of costing a representative cross-section of manufacturing units and not with reference to any individual seller; the order is notified in the Official Gazette and laid before both Houses; and the words having regard to are a legislative instruction for the general guidance of the Government, in essence directory rather than strictly mandatory.

Why it matters here. It is the standard by which every control order is reviewed. The court asks whether the power existed, whether the statutory considerations were before the authority, and whether the exercise was rational. It does not ask whether the price was correct, because that is not a judicial question.

And the same holds for drug prices. Union of India v. Cynamide India Ltd, AIR 1987 SC 1802, held price fixation under paragraph 3 of the Drugs (Prices Control) Order 1979, made under section 3(2)(c) of the same Act, to be legislative activity to which natural justice does not apply.

The Indian record, in both directions

Decontrol. Over three decades many commodities were removed from the Schedule and many orders were withdrawn: most manufactured goods, most industrial raw materials, and a long list of items that no longer required rationing. Sugar levy obligations were ended; petroleum product pricing was progressively freed.

Recontrol, and this is the part a current answer must have. In 2020 a sub-section (1A) was inserted into section 3 to provide that the supply of foodstuffs, including cereals, pulses, potato, onion, edible oilseeds and oils, could be regulated only under extraordinary circumstances such as war, famine, extraordinary price rise and natural calamity, with stock limits imposable only on a stated price trigger and with an exemption for value chain participants and exporters. That amendment was one of the three farm laws.

The Act as it now stands prints the result. The footnote to section 3 reads that sub-section (1A) was omitted by Act 40 of 2021 with effect from 30 November 2021, and the Act's own list of amending Acts names Act 40 of 2021 as the Farm Laws Repeal Act 2021. So the liberalisation lasted about eighteen months and was repealed with the rest of the farm laws, and the general power in section 3(1) stands unqualified again.

That is the single most useful fact in this chapter. It shows a student, from the statute itself, that the movement from control to decontrol is not a one way historical process but a policy choice that a government can make and unmake by legislation, and that the administrative law question is always the same: does the power exist, and was it exercised rationally on the statutory considerations.

A worked example

The price of onions triples in a season.

Before decontrol. An order under section 3(2)(c) fixes a maximum price; an order under section 3(2)(ii) imposes a stock limit on traders; movement across State borders is restricted; and a trader holding more than the limit has his stock seized and faces confiscation under section 6A, a show cause notice under section 6B and an appeal under section 6C.

Under the 2020 amendment. Stock limits on onions could be imposed only on a stated price trigger, and value chain participants and exporters were exempt, so most of the enforcement machinery could not be used unless the trigger was met.

After 30 November 2021. Section 3(1A) is gone. The general power in section 3(1) is available again on the ordinary test of the Central Government's opinion, so the machinery of the first paragraph is once more the law.

What a court would ask in each case is the same: was the commodity in the Schedule; was there material on which the opinion could be formed; were the statutory purposes the ones actually pursued; and was the order rational. It would not ask whether the price chosen was the best one.

What this does NOT mean

Decontrol is not the absence of law. The Act, the Schedule and the power remain; only the order is withdrawn.

Control is not confined to food. Drugs, fertiliser, petroleum products, coal and cement have all been controlled commodities at different times.

A control order is not a punishment. It is a regulatory measure, and the criminal consequences follow only from contravention.

Recontrol is not necessarily a failure of policy. It is a political choice, and an administrative law answer describes the legal mechanism rather than grading the politics.

Quick revision

1. Control regulates price, quantity, stock and movement of a commodity; de-regulation removes the requirement of permission to carry on an activity.
2. Section 2A: essential commodity means a commodity in the Schedule; adding needs only the Central Government's satisfaction and reasons, removing needs consultation with the States.
3. Section 3(1) is the power; section 3(2) lists what an order may do, including licensing production, controlling price, regulating storage and movement, and requiring sale to the Government.
4. Section 5 permits delegation to a State Government or an officer, which is how control is actually administered.
5. Sections 6A, 6B and 6C: confiscation, show cause notice for foodgrains, and appeal. Section 7: penalties.
6. Sitaram Sugar, AIR 1990 SC 1277, and Cynamide, AIR 1987 SC 1802: price fixation is legislative, no hearing is owed, and having regard to is directory.
7. Section 3(1A), inserted in 2020 to limit control over foodstuffs, was omitted by the Farm Laws Repeal Act 2021 with effect from 30 November 2021.
8. The movement between control and decontrol is made by notification and by short amendment, so it is reversible.

Test yourself

1. Distinguish control from de-regulation. Control is the direct regulation of the price, quantity, stock and movement of a commodity, imposed by an order under section 3 of the Essential Commodities Act 1955. De-regulation is the removal of the requirement of official permission to carry on an activity or enter an industry, effected by pruning the schedule of a licensing statute and by exemption. One is about a commodity, the other about an activity.

2. What does section 2A provide, and what is asymmetric about it? That for the purposes of the Act essential commodity means a commodity specified in the Schedule, and that the Central Government may amend the Schedule by notification. The asymmetry is that a commodity may be added if the Government is satisfied that it is necessary in the public interest, for reasons specified, while a commodity may be removed only in consultation with the State Governments.

3. Name five things an order under section 3(2) may provide for. Regulating by licences or permits the production or manufacture of an essential commodity; controlling the price at which it may be bought or sold; regulating its storage, transport, distribution, disposal, acquisition, use and consumption; prohibiting the withholding of stock from sale; and requiring a producer or dealer to sell the whole or part of his stock to the Government at a stated price.

4. On what basis does a court review a price fixed under this Act? On whether the power existed, whether the statutory considerations were before the authority and whether the exercise was rational. Sitaram Sugar, AIR 1990 SC 1277, holds that price fixation is legislative, that it is done for the industry as a whole by costing a representative cross-section, and that the words having regard to are directory, so no hearing is owed and the correctness of the price is not a judicial question.

5. Give the clearest statutory proof that decontrol is reversible. Section 3(1A) of the Essential Commodities Act 1955, inserted in 2020 to confine control over foodstuffs to extraordinary circumstances, is printed in the current Act as omitted by Act 40 of 2021 with effect from 30 November 2021, and the Act's own list of amending Acts identifies Act 40 of 2021 as the Farm Laws Repeal Act 2021. The liberalisation lasted about eighteen months and the general power in section 3(1) now stands unqualified again.

Foreign investment. Entry into most sectors moved to the automatic route, with sectoral caps and conditions in policy rather than in statute, which is itself an administrative law point: a great deal of the law that actually governs foreign investment is executive policy, enforced through FEMA regulations.

What it did to the administrative process

Entry control became conduct regulation. Chapter [De-regulation and the Retreat of the Licensing State] sets this out.

The regulator replaced the ministry. Chapter [The Regulatory Agencies of the Indian State] describes the design that resulted.

Discretion became rule. An international investor cannot price risk against an official's discretion, so published criteria, reasoned orders and appeal rights became necessary. This is the most important effect for administrative law, and it is the one most answers miss.

Transparency became a legal requirement. Disclosure regulation in securities, tariff orders published with reasons in electricity, and ultimately the Right to Information Act 2005.

National discretion narrowed. A State that has accepted treaty disciplines has less room to regulate as it pleases, and its administrative decisions can be challenged internationally as well as domestically.

Speed became a legal value. Time limits for approvals, deemed approvals, and single window clearances are administrative law devices produced by competition for investment.

The internal market, and what the Supreme Court did with it

Globalisation is not only external. India has an internal common market that Part XIII of the Constitution protects, and the leading modern decision on it is the largest Bench of this generation.

Facts. Jindal Stainless Ltd v. State of Haryana, (2017) 12 SCC 1, decided on 11 November 2016, was a reference to nine judges arising out of entry taxes levied by several States on goods entering a local area. The challenge was that such taxes offended the freedom of trade, commerce and intercourse guaranteed by Article 301 and were not saved by Article 304(b) for want of the President's previous sanction. The Court had for decades applied a compensatory tax theory built up in earlier decisions, under which a tax that merely recompensed the State for facilities provided fell outside Article 301.

Held. By majority the Court answered the reference in eight propositions. Taxes simpliciter are not within the contemplation of Part XIII, and the word free in Article 301 does not mean free from taxation. Only discriminatory taxes are prohibited by Article 304(a), so a non-discriminatory tax does not infringe Article 301. Clauses (a) and (b) of Article 304 are to be read disjunctively. A levy that violates Article 304(a) cannot be saved even if the procedure under Article 304(b) is satisfied. The compensatory tax theory has no juristic basis and is rejected. The earlier decisions are overruled to the extent of that reliance. A tax on the entry of goods into a local area is permissible although similar goods are not produced in the taxing State. And Article 304(a) frowns on discrimination of a hostile nature in the protectionist sense and not on mere differentiation, so incentives and set-offs granted to a class of dealers for a limited period to develop economically backward areas do not violate it.

Why it matters here. It is the current law on the internal common market, it replaced a doctrine that had stood for over fifty years, and it shows that the constitutional question about economic regulation in India is discrimination rather than burden.

A worked example

A foreign company wants to manufacture and sell medical devices in India.

Entry. No industrial licence for most products; registration and the ordinary compliances.

Investment. Foreign direct investment under the automatic route subject to the sectoral policy, with reporting to the Reserve Bank under FEMA regulations made under section 47.

Money in and out. Section 6 governs the capital account transaction bringing the money in; section 5 treats the payment of royalties and dividends as current account transactions, generally free.

Product regulation. Standards, licensing of manufacture and price control for devices notified under the Drugs (Prices Control) Order, which is an order under section 3 of the Essential Commodities Act 1955.

Competition. If it acquires an Indian competitor, the combination is examined by the Competition Commission under the Competition Act 2002.

Movement inside India. A State entry tax on its goods is valid if non-discriminatory, on Jindal Stainless.

And every one of those is an administrative decision, reviewable in a High Court under Article 226 on the grounds in Module IV. Globalisation did not remove the administrative process from the transaction; it changed what the process is about.

The criticism, on both sides

Against. That liberalisation reduced the State's capacity to protect the weak; that regulators are more easily captured by international capital than ministries were by domestic capital; that treaty disciplines constrain a democratically elected legislature; and that the benefits have been unequally distributed.

For. That the previous system had produced shortage, rent seeking and stagnation; that competition and openness have raised output and choice; and that regulation by published rule is more accountable, and more reviewable, than allocation by official discretion.

The administrative law point that both sides accept is that the volume of law has increased and the character of it has changed from discretionary allocation to rule based supervision, which is precisely what MU's 2026 question asks the student to describe.

What this does NOT mean

Globalisation is not the same as liberalisation. One is external, one internal.

A treaty is not Indian law. Article 253 exists because implementation requires legislation.

Opening does not mean deregulating everything. Foreign investment is still capped in several sectors, and the caps are policy rather than statute.

Article 301 does not forbid taxation. Jindal Stainless says so expressly, and a student citing the compensatory tax theory is citing an overruled doctrine.

Quick revision

1. Liberalisation is internal loosening; globalisation is external opening. They are separable and India did both after 1991.
2. Article 51(c) directs respect for treaty obligations and Article 253 empowers Parliament to legislate to implement a treaty; a treaty alone does not change Indian law.
3. FEMA 1999: section 3 prohibition, section 5 current account generally free, section 6 capital account, section 10 authorised persons, section 13 penalty, sections 46 and 47 rules and regulations.
4. The Competition Act 2002 reaches conduct with an appreciable adverse effect on competition in India whoever commits it.
5. The effects on administrative law: conduct regulation replaces entry control, regulators replace ministries, discretion becomes rule, transparency becomes a legal requirement, national discretion narrows, and speed becomes a legal value.
6. Jindal Stainless, (2017) 12 SCC 1, nine judges, 11 November 2016: taxes are not within Part XIII, only discriminatory taxes are barred by Article 304(a), clauses (a) and (b) are disjunctive, and the compensatory tax theory is rejected and the earlier cases overruled to that extent.
7. Much of the law actually governing foreign investment is executive policy enforced through FEMA regulations, not statute.

Test yourself

1. Distinguish liberalisation from globalisation and give a consequence of each for administrative law. Liberalisation is the reduction of internal governmental controls, so that production, pricing and investment decisions pass from officials to markets; its administrative consequence is that entry control gives way to conduct regulation. Globalisation is the integration of the national economy with the world economy, accompanied by treaty disciplines; its administrative consequence is that national regulatory discretion narrows and decisions must be justified against international commitments as well as domestic law.

2. How does a treaty obligation become enforceable Indian law? Not by ratification alone. Article 51(c) directs the State to foster respect for international law and treaty obligations, and Article 253 empowers Parliament to make any law for implementing a treaty, agreement or convention with any other country. Until Parliament legislates, the obligation binds India internationally but does not alter domestic law.

3. What changed in foreign exchange law, section by section? FEMA 1999 replaced FERA 1973. Section 3 retains a general prohibition on dealing in foreign exchange except as provided; section 5 makes current account transactions generally free subject to reasonable restrictions; section 6 governs capital account transactions; section 10 provides for authorised persons; section 13 makes contravention punishable by penalty rather than imprisonment; and sections 46 and 47 confer the rule and regulation making powers on the Central Government and the Reserve Bank.

4. State the propositions in Jindal Stainless on Articles 301 and 304. Taxes simpliciter are outside Part XIII and free in Article 301 does not mean free from taxation; only discriminatory taxes are prohibited by Article 304(a), so a non-discriminatory tax does not infringe Article 301; clauses (a) and (b) of Article 304 are disjunctive; a levy violating 304(a) cannot be saved by complying with 304(b); the compensatory tax theory has no juristic basis and is rejected, the earlier decisions being overruled to that extent; entry tax is permissible although similar goods are not produced in the taxing State; and 304(a) forbids hostile protectionist discrimination, not mere differentiation.

5. Give the administrative law point that both critics and defenders of liberalisation accept. That the volume of law has increased rather than decreased, and that its character has changed from discretionary allocation of scarce permissions to rule based supervision of conduct, with published criteria, reasoned orders and rights of appeal.

Four things follow, and the second and fourth are the ones students miss.

One. The restriction must be reasonable, and reasonableness is for the court to decide.

Two. It must be in the interests of the general public, which is a wider expression than the grounds in Article 19(2) and is what gives economic regulation its constitutional room.

Three. Qualification requirements are expressly protected, so licensing a profession is not a difficulty.

Four. A State monopoly is expressly permitted, complete or partial. Sub-clause (ii) is the provision that made the nationalisations of the 1950s to 1970s constitutionally straightforward, and it is still there.

What reasonableness means in a trade case. Cooverjee B. Bharucha v. Excise Commissioner, Ajmer, AIR 1954 SC 220, held that in determining reasonableness regard must be had to the nature of the business and the conditions prevailing in the particular trade, that no hard and fast rule can be laid down for all trades, and that the State has power to prohibit trades which are illegal or immoral or injurious to the health and welfare of the public.

And the corrective. Krishna Kumar Narula v. State of Jammu and Kashmir, AIR 1967 SC 1368, held that dealing in liquor is business and that a citizen has a fundamental right to carry it on under Article 19(1)(g), subject to reasonable restrictions in the public interest under Article 19(6). So even a trade the State may heavily restrict is a trade, and the restriction still has to be justified.

Standard four: the internal common market, Part XIII

Article 301. Subject to the other provisions of Part XIII, trade, commerce and intercourse throughout the territory of India shall be free.

Article 302. Parliament may by law impose such restrictions as may be required in the public interest.

Article 303. Neither Parliament nor a State Legislature may give preference to one State over another or discriminate between States by virtue of a trade and commerce entry, except that Parliament may do so where it declares by the law that it is necessary to deal with a situation arising from scarcity of goods.

Article 304. Notwithstanding Articles 301 and 303, a State Legislature may by law (a) impose on goods imported from other States or Union territories any tax to which similar goods manufactured or produced in that State are subject, so as not to discriminate between them; and (b) impose such reasonable restrictions on the freedom of trade, commerce or intercourse with or within that State as may be required in the public interest, with a proviso that no Bill or amendment for the purposes of clause (b) may be introduced without the previous sanction of the President.

Article 305 saves existing laws and laws providing for State monopolies, and Article 307 lets Parliament appoint an authority to carry out the purposes of Articles 301 to 304, which it has never done.

The current law is Jindal Stainless Ltd v. State of Haryana, (2017) 12 SCC 1, decided by nine judges on 11 November 2016: taxes simpliciter are not within Part XIII, only discriminatory taxes are prohibited by Article 304(a), clauses (a) and (b) are read disjunctively, and the compensatory tax theory is rejected. Chapter [Globalization and Liberalization Policy] works the case in full.

The Directive Principles: justification, not authority

Article 39(b) directs that the ownership and control of the material resources of the community be so distributed as best to subserve the common good, and Article 39(c) that the operation of the economic system does not result in the concentration of wealth and means of production to the common detriment.

They are not enforceable, Article 37 excluding enforceability, but they are declared fundamental in the governance of the country. In practice they do two things: they supply the public interest that Article 19(6) requires, and they are the argument a government makes when defending a regulatory measure.

A worked example: the same measure tested four ways

A State makes a law requiring every private hospital to reserve a proportion of beds for patients below a stated income, at prices the State fixes.

Competence. Public health and hospitals are in the State List, so the State may legislate. If the price control extended to drugs, that is a different entry and might not be the State's.

Article 14. Is the classification of hospitals rational, and is it applied to all of them? If the reservation binds one class of hospital and not a comparable class without a reason, it fails.

Article 19(6). Running a hospital is an occupation under Article 19(1)(g). The restriction is in the interests of the general public, so the question is reasonableness: the proportion reserved, the price fixed, whether the loss is compensated and whether a less restrictive means exists. A price so low that it makes the activity impossible is not a regulation of the trade but the destruction of it.

Part XIII. If the law taxed medical supplies from other States more heavily than those made in the State, it would fail Article 304(a) after Jindal Stainless.

Article 39(b) and (c). The State cites them as the public interest, and the court may take them into account, but the citizen cannot be answered merely by naming them.

What this does NOT mean

These standards do not decide policy. They decide legality. A court asking whether a restriction is reasonable is not asking whether it is wise.

De-regulation is tested too. A withdrawal of protection can itself be challenged as arbitrary under Article 14, and a decontrol notification that treats one class of dealer differently without reason is as reviewable as a control order.

Article 19 protects citizens only. A company is not a citizen for Article 19, although its shareholders' rights have been used to reach the same result.

Article 39(b) and (c) are not a source of power. They justify the exercise of a power that must be found in Article 246.

Quick revision

1. Four standards: competence under Article 246 and Article 265; non-arbitrariness under Article 14; reasonableness under Article 19(6); and the internal common market under Part XIII.
2. Article 19(6) permits reasonable restrictions in the interests of the general public, and expressly protects laws on professional or technical qualifications and laws providing for a State monopoly, complete or partial.
3. Cooverjee, AIR 1954 SC 220: reasonableness depends on the nature of the business and the conditions of the trade, and the State may prohibit trades that are illegal, immoral or injurious to public health and welfare.
4. Krishna Kumar Narula, AIR 1967 SC 1368: dealing in liquor is business and Article 19(1)(g) applies, subject to Article 19(6).
5. Royappa, AIR 1974 SC 555, and Airport Authority, AIR 1979 SC 1628: arbitrariness offends Article 14, and a self-imposed standard must be followed.
6. Part XIII: Article 301 freedom, Article 302 Parliament's power to restrict, Article 303 no inter-State preference, Article 304(a) non-discriminatory tax and 304(b) reasonable restrictions with the President's previous sanction, Article 305 savings, Article 307 an authority never appointed.
7. Jindal Stainless, (2017) 12 SCC 1: only discriminatory taxes are barred, the clauses are disjunctive, and the compensatory tax theory is rejected.
8. Article 39(b) and (c) justify regulation and do not authorise it, and are unenforceable by Article 37.

Test yourself

1. Name the four constitutional standards and the provision behind each. Legislative competence, under Article 246 with the Seventh Schedule and, for taxation, Article 265; non-arbitrariness, under Article 14; reasonableness of the restriction on trade, under Article 19(6) read with Article 19(1)(g); and the freedom of the internal market, under Part XIII, Articles 301 to 307.

2. Set out Article 19(6), including its two particular clauses. Nothing in Article 19(1)(g) shall affect the operation of any existing law in so far as it imposes, or prevent the State from making any law imposing, in the interests of the general public, reasonable restrictions on the exercise of the right; and in particular nothing in that sub-clause shall affect a law relating to the professional or technical qualifications necessary for practising any profession or carrying on any occupation, trade or business, or to the carrying on by the State, or by a corporation owned or controlled by the State, of any trade, business, industry or service, whether to the exclusion, complete or partial, of citizens or otherwise.

3. Which clause of Article 19(6) made nationalisation constitutionally simple, and why? Sub-clause (ii), which expressly saves a law relating to the carrying on by the State, or by a State owned or controlled corporation, of any trade, business, industry or service, whether to the complete or partial exclusion of citizens. Because it is express, a State monopoly does not have to be justified as a reasonable restriction in the ordinary way.

4. Can de-regulation itself be challenged? On what ground? Yes. The withdrawal of a control or a protection is State action and must satisfy Article 14, so a decontrol notification that treats one class of dealer differently from a comparable class without a reason, or that departs from a published policy without explanation, is arbitrary and reviewable.

5. What role do Articles 39(b) and 39(c) play, and what role do they not play? They supply the public interest that Article 19(6) requires and are the justification a government offers for a regulatory measure, being declared fundamental in the governance of the country. They are not enforceable in a court, because Article 37 excludes enforceability, and they are not a source of legislative power, which must still be found in Article 246.

Section 11B empowers the Board, after an enquiry, to issue directions and levy penalty where it is satisfied that this is necessary in the interest of investors or the orderly development of the securities market, or to prevent an intermediary's affairs being conducted detrimentally, or to secure proper management. This is the workhorse provision.

Section 12 requires registration of intermediaries, and it is registration that gives the Board its grip: a body that must be registered to operate can be controlled by conditions on the registration.

Section 15T provides the appeal to the Securities Appellate Tribunal, and section 20 provides appeals in the specified cases.

Section 30 confers the power to make regulations, which is the Board's legislative arm and the reason Module III applies to it.

The three functions in one body

Legislative. Regulations under section 30 on disclosure, insider trading, substantial acquisition, listing obligations and intermediaries. These are delegated legislation and are void if beyond the Act.

Executive. Registration under section 12, inspection, investigation, and directions under section 11B, including interim directions restraining a person from accessing the market.

Adjudicatory. Penalty proceedings before an adjudicating officer, which are quasi-judicial and attract natural justice and the duty to give reasons under S.N. Mukherjee v. Union of India, AIR 1990 SC 1984.

The combination is the objection Chapter [The Regulatory Agencies of the Indian State] answers: the regulations are testable against the Act, the adjudication is appealable to the Tribunal, and behind everything sits Article 226, which after L. Chandra Kumar v. Union of India, AIR 1997 SC 1125, cannot be excluded.

A worked example

A listed company's promoters sell a large block of shares two days before the company announces a fall in profits.

Rule-making. The prohibition on insider trading is in regulations made under section 30, not in the Act itself. The first question in any dispute is whether the regulation is within the Act, which section 11(2)(e) and section 11A make straightforward here.

Investigation. The Board investigates under its powers in section 11, calling for trading records and communications.

Interim direction. Under section 11B the Board may direct the promoters not to deal in securities pending the enquiry. That is executive action with civil consequences, so a duty to act fairly attaches: A.K. Kraipak v. Union of India, AIR 1970 SC 150.

Adjudication. A penalty is imposed after notice and hearing. This is quasi-judicial and reasons must be recorded.

Appeal. To the Securities Appellate Tribunal under section 15T, then to the Supreme Court.

And judicial review. If the regulation itself is said to be beyond section 30, that challenge goes to the High Court under Article 226 or to the Supreme Court, because a tribunal deciding an appeal cannot be the only forum for the validity of the rule it applies.

What this does NOT mean

Section 11(1) is not unlimited. The words by such measures as it thinks fit describe the choice of measure, not the scope of the duty, and a measure unconnected with investor protection or market regulation is outside the section.

Registration is not a formality. It is the instrument of control, and conditions attached to it are the practical regulation.

The Board is not a court. Its adjudication is administrative adjudication, subject to appeal and to review.

An appeal is not the only route. A challenge to the vires of a regulation is not confined to the Tribunal.

Quick revision

1. Section 3 establishes the Board as a body corporate.
2. Section 11(1): the duty is to protect investors, promote the development of the securities market, and regulate it, by such measures as it thinks fit.
3. Section 11(2) lists the measures: stock exchanges, intermediaries, depositories and foreign institutional investors, collective investment schemes and mutual funds, self-regulatory organisations, and the prohibition of fraudulent and unfair trade practices.
4. Section 11A: issue of capital, transfer of securities and disclosure, including prospectus and advertisement.
5. Section 11B: directions and penalty after enquiry, in the interest of investors or the orderly development of the market.
6. Section 12: registration of intermediaries, which is the instrument of control.
7. Section 15T: appeal to the Securities Appellate Tribunal. Section 30: power to make regulations.
8. Legislative, executive and adjudicatory power in one body, controlled by ultra vires, by appeal, and by Article 226 which cannot be excluded.

Test yourself

1. State the duty of the Board in the words of section 11(1). Subject to the provisions of the Act, it shall be the duty of the Board to protect the interests of investors in securities and to promote the development of, and to regulate, the securities market, by such measures as it thinks fit.

2. Name five categories of person the Board registers and regulates under section 11(2). Stock brokers and share transfer agents; bankers to an issue, trustees of trust deeds, registrars to an issue, merchant bankers, underwriters, portfolio managers and investment advisers; depositories, participants and custodians of securities; foreign institutional investors and credit rating agencies; and venture capital funds, collective investment schemes and mutual funds.

3. What does section 11B allow, and on what satisfaction? It allows the Board, after making or causing to be made an enquiry, to issue directions and levy penalty where it is satisfied that this is necessary in the interest of investors or the orderly development of the securities market, or to prevent the affairs of an intermediary or other person being conducted in a manner detrimental to investors or to the market, or to secure the proper management of such a person.

4. Identify the legislative, executive and adjudicatory functions of the Board with a section for each. Legislative, making regulations under section 30; executive, registration under section 12 and directions under section 11B; adjudicatory, penalty proceedings, with an appeal to the Securities Appellate Tribunal under section 15T.

5. Where does a challenge to the validity of a SEBI regulation go, and why not only to the Tribunal? To a High Court under Article 226 or to the Supreme Court, because a tribunal deciding an appeal under the regulation cannot be the only forum for testing the validity of the rule it is applying, and because after L. Chandra Kumar v. Union of India, AIR 1997 SC 1125, the High Court's jurisdiction under Articles 226 and 227 is part of the basic structure and cannot be excluded.

The appellate tribunal

Section 14 establishes the Telecom Disputes Settlement and Appellate Tribunal, to adjudicate disputes between a licensor and a licensee, between two or more service providers, and between a service provider and a group of consumers, and to hear appeals against a decision, direction or order of the Authority.

This is a structural point worth making in an answer. In the SEBI model the Board adjudicates and an appeal lies. In the telecommunications model adjudication was taken out of the Authority altogether and given to a separate tribunal, which answers the combination of functions objection more completely than any other Indian regulator.

The regulation that was struck down

Facts. Cellular Operators Association of India v. Telecom Regulatory Authority of India, AIR 2016 SC 2336, concerned the Telecom Consumers Protection (Ninth Amendment) Regulations 2015, made under section 36(1) of the Act. The regulation required a service provider to credit one rupee to a calling consumer for every call drop, subject to a maximum of three a day. The operators challenged it as beyond the Act and as unreasonable and manifestly arbitrary. The High Court upheld it on both grounds, holding that the power in section 36(1) was wide and pervasive and that a transparent consultative process had been followed.

Held. The Supreme Court struck the regulation down. A regulation made by a statutory regulator is subordinate legislation and is open to challenge both for being ultra vires the parent Act and on the ground of manifest arbitrariness. This regulation fixed liability without reference to fault, so that an operator paid even where the call drop was caused by the consumer's own handset or by circumstances beyond the operator's control; the material before the Authority did not support the measure; and it was therefore unreasonable and arbitrary.

Why it matters here. Three things. It settles that a regulator's regulation is ordinary delegated legislation, however expert its maker. It shows that consultation, however transparent, does not save a regulation that is beyond the Act or arbitrary. And it is the concrete answer to the question whether the new regulators are effectively controlled.

A distinctions table: two regulator designs

A worked example

Calls on a network drop repeatedly in a city.

What the Authority may do by itself. Lay down a quality of service standard, require reporting against it, and make a regulation under section 36 imposing obligations on operators, subject to the limits Cellular Operators states.

What it may only recommend. That a licence be revoked for non-compliance, or that the licence terms be changed, or that another operator be admitted. Those are section 11(1)(a) matters, so the Authority advises and the licensor decides.

Where a consumer goes. Not to the Authority as a court. A dispute between a service provider and a group of consumers goes to the Tribunal under section 14.

Where an operator goes against a regulation it says is beyond the Act. To the High Court under Article 226, and ultimately to the Supreme Court, which is how Cellular Operators itself reached the Court.

What this does NOT mean

A recommendation is not worthless. The licensor must consider it, and departing from it without reason is open to challenge as arbitrary under Article 14, on the reasoning of Ramana Dayaram Shetty v. International Airport Authority of India, AIR 1979 SC 1628.

A wide rule-making power is not an unlimited one. Cellular Operators rejected exactly that argument.

Consultation does not cure invalidity. A regulation beyond the Act is void however carefully it was consulted on.

The Tribunal is not a substitute for the High Court. After L. Chandra Kumar v. Union of India, AIR 1997 SC 1125, Article 226 cannot be excluded.

Quick revision

1. Section 3 establishes the Authority; section 11 states its functions; section 14 establishes the Tribunal; section 36 confers the power to make regulations.
2. Section 11(1)(a) functions are recommendations only, made suo motu or on a request from the licensor: new service providers, licence terms, revocation, competition measures, technological improvements, equipment types, and development of telecommunications.
3. Regulatory functions bind: licence compliance, quality of service standards, universal service obligations, and interconnection terms.
4. Tariff notification is price fixation and is legislative in character.
5. Section 14 removes adjudication from the Authority to a separate tribunal, which is the strongest structural answer to the combination of functions objection.
6. Cellular Operators, AIR 2016 SC 2336: a regulator's regulation is subordinate legislation, testable for ultra vires and for manifest arbitrariness, and the call drop compensation regulation failed both.
7. Consultation does not save a regulation that is beyond the parent Act.

Test yourself

1. Set out the three classes of function under section 11 and say which bind. Recommendations under section 11(1)(a), which are advisory and made suo motu or on a request from the licensor; regulatory functions, including licence compliance, quality of service standards, universal service obligations and interconnection terms, which bind; and tariff notification, which is legislative price fixation and binds.

2. Name four matters on which the Authority can only recommend. The need and timing for the introduction of a new service provider; the terms and conditions of a licence; revocation of a licence for non-compliance with its terms; and measures to facilitate competition and promote efficiency so as to facilitate growth in telecommunication services.

3. What is structurally distinctive about the TRAI model compared with SEBI? Adjudication was taken out of the regulator altogether. Section 14 establishes a separate Telecom Disputes Settlement and Appellate Tribunal to decide disputes between the licensor and licensees, between service providers, and between a service provider and a group of consumers, and to hear appeals against the Authority. SEBI, by contrast, adjudicates itself with an appeal to a tribunal.

4. State the facts and holding of Cellular Operators. TRAI made a regulation under section 36(1) requiring a service provider to credit one rupee to a consumer for every call drop, up to three a day. The Supreme Court struck it down: a regulation of a statutory regulator is subordinate legislation and may be challenged both as ultra vires the parent Act and for manifest arbitrariness, and this one fixed liability without reference to fault, was unsupported by the material before the Authority, and was unreasonable.

5. Does a transparent consultative process save a regulation? Give the reason. No. Consultation goes to the fairness of the process, not to the source or the content of the power, so a regulation that is beyond the parent Act or manifestly arbitrary is void however carefully it was consulted on, as Cellular Operators holds.

Appeal. Section 111 provides an appeal to the Appellate Tribunal for Electricity and section 121 confers the Tribunal's power to issue orders, instructions or directions to a Commission for the performance of its statutory functions.

Regulations. Section 178 for the Central Commission and section 181 for the State Commissions.

The Competition Commission

Why a competition authority. Liberalisation removed the entry controls that had limited what a firm could do. The risk that replaced them was private restraint: firms agreeing on prices, a dominant firm excluding rivals, or a merger removing a competitor. The Monopolies and Restrictive Trade Practices Act 1969 had regulated size; the Competition Act 2002 regulates conduct.

Constitution. Section 7 establishes the Commission and section 18 states its duty, which is to eliminate practices having an adverse effect on competition, to promote and sustain competition, to protect the interests of consumers and to ensure freedom of trade.

The three prohibitions. Section 3 prohibits anti-competitive agreements. Section 4 prohibits abuse of a dominant position. Section 5 defines a combination and section 6 regulates it, so that a combination causing or likely to cause an appreciable adverse effect on competition is void and must be notified.

Procedure. Section 19 confers the power to inquire into agreements and dominance, section 20 into a combination, and section 26 prescribes the procedure for an inquiry under section 19, beginning with a prima facie opinion and a direction to the Director General to investigate.

Orders. Section 27 for orders after inquiry into agreements or abuse of dominance, including cease and desist directions, penalties and modification of agreements; section 31 for orders on combinations.

Appeal. Section 53A provides for the Appellate Tribunal, section 53B for the appeal to it and section 53T for an appeal to the Supreme Court.

Regulations. Section 64 confers the power to make regulations.

What makes the Competition Commission different

It has no sector. Every other regulator in this book owns an industry. The Commission's jurisdiction is behaviour, wherever it occurs, which produces the overlap problem in Chapter [The Regulatory Agencies of the Indian State]: a telecommunications operator's conduct can attract both TRAI and the Commission.

Its test is effect, not form. An agreement is judged by its appreciable adverse effect on competition, not by whether the parties are large.

It combines investigation and adjudication in an unusual way. The Director General investigates and the Commission decides, which is a separation of function inside the body, closer to the American design in Chapter [The Growth of Administrative Law in the United States] than anything else in Indian regulation.

A worked example

Two distribution licensees in a State agree not to bid against each other for power from a new generator.

Under the Electricity Act. The State Commission regulates electricity purchase and procurement by distribution licensees under section 86, determines the tariff under section 62 on terms specified by regulations under section 61, and adjudicates disputes between the licensees and the generating company. If the tariff had been discovered by a transparent bidding process under guidelines, section 63 requires the Commission to adopt it.

Under the Competition Act. The agreement between the two licensees is a horizontal arrangement and is examined under section 3. The Commission may form a prima facie opinion under section 26, direct the Director General to investigate, and pass orders under section 27.

Both may apply, and which prevails where they conflict has been contested. The point for an administrative law answer is that India has created two regulators with concurrent reach and has not enacted a rule allocating jurisdiction between them.

What this does NOT mean

The electricity commissions do not fix every tariff. Section 63 requires adoption of a tariff discovered by competitive bidding under guidelines, so the Commission's role there is confirmatory.

The Competition Commission does not regulate size. That was the MRTP Act, and it was repealed.

Neither body is beyond review. Appeals lie under section 111 and section 53B respectively, and Article 226 sits behind both.

Section 121 does not make the Tribunal a super-regulator. It empowers directions to a Commission for the performance of its statutory functions, not the substitution of the Tribunal's own view of policy.

Quick revision

1. Electricity Act 2003: section 76 the Central Commission, section 82 a State Commission, section 79 and section 86 their functions.
2. Section 61 specifies terms and conditions of tariff by regulations, which is legislative; section 62 determines the tariff itself, which is closer to adjudication; section 63 requires adoption of a tariff discovered by transparent bidding under guidelines.
3. Section 111 appeal to the Appellate Tribunal for Electricity; section 121 the Tribunal's power to direct a Commission; sections 178 and 181 the regulation making powers.
4. Competition Act 2002: section 7 the Commission, section 18 its duty.
5. Section 3 anti-competitive agreements, section 4 abuse of dominant position, sections 5 and 6 combinations.
6. Section 19 inquiry into agreements and dominance, section 20 into combinations, section 26 the procedure with a prima facie opinion and reference to the Director General.
7. Section 27 orders after inquiry, section 31 orders on combinations, sections 53A, 53B and 53T the appeals, section 64 regulations.
8. The Competition Commission has no sector, tests by effect rather than form, and separates investigation from decision inside the body.

Test yourself

1. Distinguish sections 61, 62 and 63 of the Electricity Act 2003. Section 61 requires the Commission to specify by regulations the terms and conditions for the determination of tariff, which is legislative. Section 62 provides for the determination of tariff for a particular supply, which is closer to adjudication. Section 63 provides that where a tariff has been determined through a transparent process of bidding in accordance with Central Government guidelines, the Commission shall adopt that tariff.

2. Name four functions of a State Electricity Regulatory Commission under section 86. Determining the tariff for generation, supply, transmission and wheeling within the State; regulating electricity purchase and procurement by distribution licensees; issuing licences; and adjudicating disputes between licensees and generating companies. It also promotes cogeneration and generation from renewable sources.

3. Set out the three prohibitions of the Competition Act 2002 with their sections. Section 3, anti-competitive agreements; section 4, abuse of a dominant position; and sections 5 and 6, combinations, section 5 defining a combination and section 6 providing that a combination causing or likely to cause an appreciable adverse effect on competition is void and must be notified.

4. Describe the procedure of an inquiry under section 26. The Commission forms a prima facie opinion on whether a contravention of section 3 or section 4 exists, and if it does, directs the Director General to cause an investigation and to submit a report; the Commission then considers the report, gives the parties an opportunity, and passes orders under section 27.

5. What is structurally distinctive about the Competition Commission, and what problem does it create? It has no sector of its own: its jurisdiction is conduct wherever it occurs. That creates overlapping jurisdiction with the sector regulators, so a single course of conduct in telecommunications or electricity can attract both the sector regulator and the Commission, with appeals lying to different tribunals, and no Indian statute allocates jurisdiction between them.

Section 6 is the whole of e-governance in one section. Filing, licensing and payment are the three things a citizen does with a government, and all three are covered.

Section 6A, delivery of services by service provider. It permits the appropriate Government to authorise service providers to set up, maintain and upgrade the computerised facilities and to deliver services electronically, and to collect service charges. This is the statutory basis of the common service centre model by which government services are delivered through intermediaries.

Section 7, retention of electronic records, and section 7A, audit of documents maintained in electronic form. Records must be kept and must be auditable, which is the accountability point of Chapter [The Machinery of Accountability] carried into the electronic setting.

Section 8, publication of rule, regulation and so on in the Electronic Gazette. Where any law provides for publication of a rule, regulation, order, bye-law, notification or other matter in the Official Gazette, that requirement is deemed satisfied by publication in the Electronic Gazette. This connects directly to Chapter [Publication, and the Rule That an Unpublished Rule Binds Nobody]: the requirement of publication survives, and only the medium changes.

Section 9: no right to insist. Sections 6, 7 and 8 do not confer a right upon any person to insist that a document should be accepted or issued in electronic form. So the Act enables electronic administration; it does not compel it. A citizen cannot demand an electronic licence where the Government has not prescribed one.

Section 10A, validity of contracts formed through electronic means. A contract is not unenforceable solely on the ground that an electronic form or means was used for the communication of proposals, acceptances and revocations.

What e-governance changes for administrative law

The record improves. An electronic file has a time stamp and an audit trail, which is exactly what the file problem in Chapter [Responsibility and Accountability of Administrators] lacked.

Discretion narrows. A portal that will not accept an incomplete application applies the criteria mechanically, which reduces both delay and favour.

Delay becomes visible. A system that records when an application was received makes inaction measurable, and measurable inaction is actionable.

Reasons become harder to avoid. A rejection generated by a system usually carries a stated ground, whereas a rejection endorsed on a file often did not.

But new problems appear, and an LL.M. answer must name them.

Exclusion. A person without a device, a connection or literacy is excluded from a service that has moved online, and a right that can only be exercised electronically is not available to everybody.

Opacity of the system. A citizen can challenge an officer's reasons; she cannot cross-examine a program. Chapter [Technology and Discretion] takes this up as a question about discretion.

Proof. The reliability of an electronic record is a question of evidence, and a citizen disputing the system's record of what she filed is in a weaker position than one disputing a clerk.

Section 9 cuts both ways. It protects a citizen who cannot go online from being compelled to, and it denies a citizen who wants to go online any right to insist.

A worked example

Ravi Deshmukh applies for a trade licence from a municipal corporation through its portal.

Filing. Section 6(1)(a) makes the electronic filing valid, if the Corporation has prescribed the electronic form.

Signature. Section 5 makes his electronic signature satisfy any requirement that the application be signed.

Fee. Section 6(1)(c) makes the electronic payment satisfy any requirement of payment in a particular manner.

Licence. Section 6(1)(b) makes the electronic issue of the licence valid.

Rules. The rules under which the licence is granted are validly published if published in the Electronic Gazette, by section 8.

Refusal. If the portal rejects his application, the decision is still an administrative decision. It must be within the rules, must not be arbitrary under Article 14, and must satisfy whatever duty of fairness the situation requires: the medium does not change the law that governs the decision.

And if he has no computer. Section 9 means he cannot be told that the electronic route is the only one, unless the law itself has been changed to require it.

What this does NOT mean

E-governance is not a separate branch of administrative law. It is the ordinary administrative process conducted differently, and every doctrine in this book applies to it unchanged.

The Act does not digitise the statute book. It deems requirements satisfied; it does not repeal them.

Section 8 does not abolish publication. It changes the medium, and an unpublished rule still binds nobody.

A portal is not an authority. The decision remains that of the officer or body the statute names, whatever machine communicates it.

Quick revision

1. E-governance is the delivery of government by electronic means; its legal foundation is Chapter III of the Information Technology Act 2000.
2. Section 4: a requirement of writing is satisfied by an electronic record accessible for subsequent reference.
3. Section 5: a requirement of signature is satisfied by an electronic signature affixed as prescribed.
4. Section 6: filing, issue of a licence or approval, and receipt or payment of money may all be done electronically as the appropriate Government prescribes.
5. Section 6A: service providers may be authorised to deliver services electronically and to collect service charges.
6. Sections 7 and 7A: retention and audit of electronic records. Section 8: publication in the Electronic Gazette.
7. Section 9: no right to insist that a document be accepted or issued in electronic form.
8. Section 10A: a contract is not unenforceable merely because electronic means were used.
9. Gains: better record, narrower discretion, visible delay, more reasons. Costs: exclusion, an opaque system, questions of proof.

Test yourself

1. Why did e-governance require legislation at all? Because the statute book assumed paper. Existing laws required information to be in writing, documents to be signed, forms to be filed, licences to be issued and money to be paid in particular ways, and none of those requirements could be satisfied electronically until a statute deemed them satisfied. Chapter III of the Information Technology Act 2000 does that without amending each statute.

2. Set out section 6 and explain why it is the central provision. Where any law provides for the filing of a form, application or other document with a government office, authority, body or agency; or the issue or grant of a licence, permit, sanction or approval; or the receipt or payment of money, in a particular manner, then notwithstanding anything in any other law the requirement is deemed satisfied if effected in such electronic form as the appropriate Government prescribes. It is central because filing, licensing and payment are the three things a citizen does with a government.

3. What does section 9 provide, and what are its two effects? That sections 6, 7 and 8 confer no right on any person to insist that a document should be accepted or issued in electronic form. Its first effect is protective: a citizen without access cannot be compelled to use the electronic route unless the law itself requires it. Its second is limiting: a citizen who wants an electronic transaction cannot demand one where the Government has not prescribed it.

4. How does section 8 relate to the rule about publication of delegated legislation? It changes only the medium. Where a law requires a rule, regulation, order, bye-law or notification to be published in the Official Gazette, publication in the Electronic Gazette satisfies that requirement. The requirement of publication itself survives, so an unpublished rule still binds nobody.

5. Name three problems e-governance creates for administrative law. Exclusion, because a service that has moved online is unavailable to a person without a device, connection or literacy; opacity, because a citizen can challenge an officer's reasons but cannot cross-examine a program; and proof, because the reliability of the system's electronic record becomes an evidentiary question in which the citizen is the weaker party.

Time limits on the administration. Section 7 of the Right to Information Act 2005 is the model, and it is enforced by section 20's personal penalty.

Four: fiscal restructuring

The goods and services tax altered the constitutional distribution of taxing power itself. Article 246A confers a special power on Parliament and on State Legislatures to make laws with respect to goods and services tax, and Article 279A creates the Goods and Services Tax Council. Chapter [Article 265 and the Limits of the Taxing Power] returns to it.

For administrative law the interesting feature is the Council: a constitutional body of Union and State ministers making recommendations on rates, exemptions and thresholds, which are then given effect by notification. It is a new kind of intergovernmental administrative institution, and it does not fit any of the categories in Chapter [Administrative Agencies: What They Are].

Five: decriminalisation and clearing the statute book

This is the newest group and the one a current answer should have, because it is verifiable from the statute and most textbooks predate it.

The Jan Vishwas (Amendment of Provisions) Act 2023, Act 18 of 2023, amended a long list of Central Acts with effect from 30 November 2023, converting many offences into civil penalties and raising monetary thresholds. Its purpose was to reduce the criminal exposure attached to ordinary business compliance failures.

It also removed a dead provision. Section 66A of the Information Technology Act 2000, which punished the sending of offensive messages through a communication service, had been held unconstitutional years earlier and yet remained printed in the Act, and prosecutions under it continued to be registered. The Act as it now stands prints the heading in square brackets, which is how a repealed provision is shown, followed by the omitting entry:

66A. [Punishment for sending offensive messages through communication service, etc.] Omitted by the Jan Vishwas (Amendment of Provisions) Act, 2023 (18 of 2023), section 2 and Schedule, with effect from 30 November 2023.

That single footnote is worth an answer by itself. It shows that a judicial declaration of invalidity does not remove a provision from the statute book, that the removal is a legislative act, and that in the interval the printed text can go on being used by officials who do not read law reports. It is the strongest available argument for periodic legislative housekeeping, and it is an administrative law point rather than a constitutional one.

Repealing and amending Acts have been used repeatedly in the same period to remove obsolete enactments, which is the same idea applied to whole statutes.

Six: digitisation

Chapter [E-Governance: Administration by Electronic Means] covers Chapter III of the Information Technology Act 2000. Its innovation of technique is worth restating: rather than amending every statute that assumed paper, one chapter deemed the paper requirement satisfied by its electronic equivalent.

A distinctions table: before and after

A worked example

Compare two citizens seeking the same thing thirty years apart: a copy of the inspection report on a factory near their home.

In 1990. No right to the document. A request to the department could be refused without reason and without appeal. The only route was a writ petition alleging a breach of some other right, which would usually fail for want of standing.

Today. A request under section 6 of the Right to Information Act 2005, decided within the time in section 7, refusable only on a ground in section 8, with a first appeal and a second appeal to the Information Commission under section 19, and a personal penalty on the officer under section 20 if the refusal was without reasonable cause. The request may be filed electronically, on the strength of section 6 of the Information Technology Act 2000.

What changed is not that the government became more willing to disclose. What changed is that Parliament created a right, a duty, a deadline, an appeal and a penalty, which is the innovation in legislative technique this chapter is about.

What this does NOT mean

It does not mean the innovations always work. Information Commissions sit with vacancies, deemed approvals are sometimes avoided by asking for further particulars, and regulators are captured.

It does not mean the criminal law has withdrawn. Decriminalisation under the Jan Vishwas Act is confined to the provisions in its Schedule.

It does not mean the older technique has disappeared. Section 3 of the Essential Commodities Act 1955 remains a Ministerial power of the classical kind, and was used as recently as the recontrol described in Chapter [Control to Decontrol].

It does not mean innovation is always liberalising. The same period saw new controls, and the omission of section 3(1A) of the Essential Commodities Act by the Farm Laws Repeal Act 2021 is an innovation in the other direction.

Quick revision

1. Six groups: rights against the administration; institutions instead of powers; procedure and time; fiscal restructuring; decriminalisation and clearing the statute book; and digitisation.
2. The Right to Information Act 2005 is a complete enforcement architecture: right, duty, deadline, exemption, appeal, penalty.
3. The Insolvency and Bankruptcy Code 2016 and the Competition Act 2002 are statutes that build institutions rather than confer discretions.
4. Deemed approval converts delay into a decision, which no court can do.
5. Articles 246A and 279A restructured taxing power and created the Goods and Services Tax Council, a new kind of intergovernmental body.
6. The Jan Vishwas (Amendment of Provisions) Act 2023, Act 18 of 2023, decriminalised many compliance offences with effect from 30 November 2023.
7. The same Act omitted section 66A of the Information Technology Act 2000, a provision that had been held unconstitutional years earlier and had remained printed until then.
8. Chapter III of the Information Technology Act 2000 digitised the administration by deeming paper requirements satisfied.

Test yourself

1. Name the six groups of post-liberalisation innovation with one example of each. Rights against the administration, as in the Right to Information Act 2005; institutions instead of powers, as in the Insolvency and Bankruptcy Code 2016; procedure and time, as in deemed approvals and the time limit in section 7 of the RTI Act; fiscal restructuring, as in Articles 246A and 279A; decriminalisation and clearing the statute book, as in the Jan Vishwas (Amendment of Provisions) Act 2023; and digitisation, as in Chapter III of the Information Technology Act 2000.

2. Why is the Right to Information Act 2005 an innovation in technique and not only in subject? Because it contains a complete enforcement architecture in one short Act: a right in section 3, a duty of proactive disclosure in section 4, a procedure and a time limit in sections 6 and 7, defined exemptions in section 8, two levels of appeal in section 19, and a personal penalty on the defaulting officer in section 20.

3. What did the Jan Vishwas Act 2023 do, and why does its treatment of section 66A matter? It amended a long list of Central Acts with effect from 30 November 2023, converting many compliance offences into civil penalties and raising monetary thresholds. Its treatment of section 66A of the Information Technology Act 2000 matters because that provision had been held unconstitutional years earlier and yet remained printed in the Act until the 2023 omission, which shows that a judicial declaration of invalidity does not itself remove a provision from the statute book and that in the interval officials may continue to act on the printed text.

4. What is constitutionally new about the Goods and Services Tax Council? It is a constitutional body of Union and State ministers created by Article 279A, making recommendations on rates, exemptions and thresholds which are then implemented by notification, alongside Article 246A which confers a special concurrent power to tax goods and services. It is an intergovernmental administrative institution that fits none of the ordinary categories of administrative agency.

5. Give one example of post-liberalisation innovation that moved in the opposite direction. The omission of section 3(1A) of the Essential Commodities Act 1955 by the Farm Laws Repeal Act 2021 with effect from 30 November 2021, which removed a 2020 restriction on the power to control foodstuffs and so restored the unqualified general power of control in section 3(1).

Five: equality before the law. The same law applies to the official and to the citizen, which is Article 14.

Six: access to an independent court. A right without a forum is not a right, which is Articles 32 and 226, and it is why judicial review is part of the basic structure.

Seven: absence of arbitrary power. Where power exists it must be confined, structured and checked, which is the whole of Module IV.

Two conceptions, and MU examines both

The formal, or thin, conception. The rule of law is about the FORM of law: general, prospective, published, clear, stable, applied by independent courts. It says nothing about the content. A wicked law properly enacted and evenly applied satisfies it. Its virtue is that it is a workable legal test; its vice is that it can be satisfied by a tyranny that is orderly about it.

The substantive, or thick, conception. The rule of law also requires that the law respect certain values: human dignity, fundamental rights, and a measure of social justice. Its virtue is that it does not certify an orderly tyranny; its vice is that it becomes a general theory of good government and stops being a distinct legal idea.

Where Indian law stands. Closer to the substantive conception, and for a textual reason: Part III makes certain values legally enforceable, so a law offending them is not merely unjust but void under Article 13. Chapter [The Changing Dimensions of the Rule of Law] takes this further.

The rule of law and rule by law

This distinction is worth a paragraph in any answer, and most students miss it.

Rule by law means the government uses law as its instrument. Everything it does is done through a statute, and the statute may say anything at all. A State can rule by law and be entirely arbitrary, because the law itself supplies no limit.

The rule of law means the government is subject to law. The law is not merely the instrument of power but its boundary, and there is a forum in which the boundary can be enforced against the government.

The difference is not the presence of statutes. It is whether the statute binds the ruler and whether anybody independent can say so.

A worked example

A State wishes to close a class of shops that it says are a nuisance.

Rule by law. It passes an Act empowering the Collector to close any shop he considers a nuisance, with his decision final and no appeal, and no obligation to give reasons or a hearing. Everything is done under a statute; nothing is done under the rule of law.

The rule of law. The Act defines nuisance, prescribes the procedure, requires notice and a hearing, requires reasons, provides an appeal, and leaves Article 226 available. The Collector still closes shops, but he does so under a rule that a court can hold him to.

What Indian law would do with the first Act. Test it against Article 14 for arbitrariness, against Article 19(1)(g) and 19(6) for reasonableness, and against Articles 32 and 226, whose exclusion would offend the basic structure after L. Chandra Kumar v. Union of India, AIR 1997 SC 1125. That testing is the rule of law operating as law and not as a slogan.

What this does NOT mean

It does not mean law and order. A State can have perfect order and no rule of law.

It does not mean the courts govern. It means the courts decide legality, which Chapter [The Courts as a Check on Administrative Lawlessness] distinguishes from deciding wisdom.

It does not mean there are no discretionary powers. It means discretion must be conferred by law, confined by standards and reviewable.

It does not mean everyone is treated identically. Article 14 permits reasonable classification, and equality before the law means the absence of special exemption, not the absence of difference.

Quick revision

1. The rule of law: all authority derives from and is limited by law, the law is general, published, prospective, certain and equally applied, and every exercise of power answers to an independent court.
2. Its lineage: Aristotle, Bracton, Coke, then Dicey.
3. Seven elements: legality, generality, publicity, prospectivity and certainty, equality, access to an independent court, and the absence of arbitrary power.
4. Formal conception: about the form of law only. Substantive conception: about its content too.
5. Indian law is closer to the substantive conception, because Part III makes values legally enforceable and Article 13 voids a law that offends them.
6. Rule by law is law as the instrument of power; the rule of law is law as the boundary of power.
7. Judicial review is part of the basic structure and cannot be excluded: L. Chandra Kumar, AIR 1997 SC 1125.

Test yourself

1. Define the rule of law in the wording you would use in an examination. That all authority in a State is derived from and limited by law; that the law must be general, prospective, published, certain and applied equally; that every exercise of public power must be traceable to a legal source and is answerable before an independent judiciary; and that no person, however highly placed, is above the law.

2. Distinguish the rule of law from rule by law. Rule by law means the government uses law as its instrument, so everything is done through a statute which may itself impose no limit. The rule of law means the government is subject to law, so the law is the boundary of power and not merely its instrument, and there is an independent forum that can enforce the boundary against the government.

3. Name the seven elements of the rule of law and give an Indian provision for three of them. Legality, generality, publicity, prospectivity and certainty, equality before the law, access to an independent court, and the absence of arbitrary power. Legality appears in Article 265 for taxation and Article 300A for property; prospectivity in Article 20(1); equality in Article 14; and access to a court in Articles 32 and 226.

4. Distinguish the formal from the substantive conception, and say which India follows. The formal conception concerns the form of law alone, so a law that is general, prospective, published, clear and evenly applied satisfies it whatever its content. The substantive conception additionally requires the law to respect values such as dignity and fundamental rights. India is closer to the substantive conception, because Part III makes those values legally enforceable and Article 13 renders a law inconsistent with them void.

5. Does the rule of law forbid discretionary power? Explain. No. It requires that discretion be conferred by law rather than assumed, that it be confined by standards so that its exercise is predictable, and that its exercise be reviewable by an independent court. What it forbids is unconfined and unreviewable power, not the existence of choice.

The first claim is sound and is Indian law. The second is where Dicey went wrong, and Chapter [What Is Wrong With Dicey] and Chapter [Administrative Law in France] deal with it.

Its Indian counterpart. Article 14: the State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India. Equality before the law is the Diceyan half of that sentence; equal protection of the laws is the American half, and permits reasonable classification.

And the Indian exception, which an answer must name. Article 361 provides that the President and the Governors are not answerable to any court for the exercise and performance of the powers and duties of their office, that no criminal proceedings shall be instituted or continued against them during their term of office, and that no process for arrest or imprisonment shall issue from any court against them during that term. So India does not apply Dicey's second meaning without qualification, and a candidate who says India follows Dicey completely is wrong.

The third meaning: the constitution is the result of the ordinary law

What it says. With the English, the general principles of the constitution, such as the right to personal liberty or the right of public meeting, are the result of judicial decisions determining the rights of private persons in particular cases brought before the courts. Elsewhere the constitution supplies the rights; in England the courts do, and the constitution is the consequence rather than the source.

Why Dicey thought this superior. A right written into a constitution can be suspended by suspending the constitution. A right built out of remedies in ordinary litigation cannot be taken away without taking away the remedies, which is harder.

Why India is the opposite, and deliberately so. India has a written constitution, an entrenched Part III, and Article 32, which makes the right to move the Supreme Court for enforcement itself a fundamental right. The Indian framers had watched rights depend on the goodwill of a colonial government and chose to write them down.

And Dicey's own point survives the reversal. The remedy is what makes a right real, which is why Article 32 is placed inside Part III and why Chapter [The Courts as a Check on Administrative Lawlessness] treats the writs as the centre of the subject.

A distinctions table

A worked example

A police officer, without any warrant or statutory authority, enters a house and seizes goods.

On Dicey's first meaning. The householder has suffered in his goods without any distinct breach of law having been established against him. The seizure is unlawful.

On Dicey's second meaning. The officer is personally liable in trespass in the ordinary courts, and cannot answer that he acted in his official capacity. This is Indian law, and it is why Kasturi Lal Ralia Ram Jain v. State of Uttar Pradesh, AIR 1965 SC 1039, is discussed in Chapter [Redress Against the State in India]: the difficulty there is the State's vicarious liability, not the officer's personal liability.

On Dicey's third meaning. In England the householder's remedy would rest on the ordinary law of trespass. In India it rests on Article 21 and is enforceable under Articles 32 and 226, and compensation may be awarded in the writ petition itself: Rudul Sah v. State of Bihar, AIR 1983 SC 1086.

Facts of that case. A prisoner acquitted of a criminal charge was kept in jail for over fourteen years after the acquittal. He petitioned under Article 32 for release and for compensation, and by the time of hearing had been released.

Held. The detention after acquittal was wholly unjustified. Article 21 would be denuded of significant content if the Court's power were limited to ordering release, and one of the ways in which the violation of that right can reasonably be prevented is to mulct its violators in the payment of monetary compensation. The Court awarded compensation in the writ petition itself, without prejudice to a suit for damages.

Why it matters here. It is Dicey's insight about remedies, applied through a written constitution he would not have approved of.

What this does NOT mean

Dicey did not invent the rule of law. He named and popularised a much older idea, and Chapter [The Rule of Law: What It Means] traces it.

Dicey's second meaning does not mean identical treatment. It means the absence of a special exemption for officials, not the absence of classification.

The third meaning is not a claim that written constitutions are worthless. It is a claim about where rights are most secure, and it is contestable.

MU's quotation is not the whole of Dicey. It is the second meaning, and an answer should say so before giving the other two.

Quick revision

1. Dicey, Introduction to the Study of the Law of the Constitution, 1885.
2. First meaning: absolute supremacy of regular law, punishment only for a distinct breach established before the ordinary courts, as opposed to arbitrary power or wide discretionary authority.
3. Second meaning: equality before the law, the equal subjection of all classes to the ordinary law administered by the ordinary courts, with no exemption for officials and no separate administrative courts.
4. Third meaning: the general principles of the constitution are the result of judicial decisions in cases between private persons.
5. Indian counterparts: Articles 20, 21 and 22 for the first; Article 14 for the second, with Article 361 as an express exception; Part III and Article 32 for the third, which India reverses on purpose.
6. MU's own quotation is the second meaning.
7. Rudul Sah, AIR 1983 SC 1086: compensation may be awarded in a writ petition, which is Dicey's point about remedies made under a written constitution.

Test yourself

1. State Dicey's three meanings in his own terms. First, the absolute supremacy of regular law as opposed to the influence of arbitrary power, so that no man is punishable except for a distinct breach of law established in the ordinary legal manner before the ordinary courts. Secondly, equality before the law, meaning the equal subjection of all classes to the ordinary law of the land administered by the ordinary courts, with no exemption for officials. Thirdly, that the general principles of the constitution are the result of judicial decisions determining the rights of private persons in particular cases brought before the courts.

2. Which meaning does MU quote, and what two claims does it contain? The second. It contains the claim that no official is exempt from the ordinary law and is personally liable for exceeding authority, and the separate claim that there should be no distinct administrative courts and no separate body of law for officials.

3. Give the Indian counterpart of each meaning, and the express Indian exception to the second. The first corresponds to Articles 20, 21 and 22; the second to Article 14; the third is reversed by Part III and Article 32. The express exception to the second is Article 361, under which the President and the Governors are not answerable to any court for the exercise of their powers and duties, no criminal proceedings may be instituted or continued against them during their term, and no process for arrest or imprisonment may issue against them during that term.

4. Why did Dicey think rights derived from case law were safer than rights in a constitution? Because a right written into a constitution can be removed by suspending or amending the constitution, whereas a right built out of remedies given in ordinary litigation cannot be taken away without abolishing the remedies themselves, which is harder to do and harder to disguise.

5. Does India follow Dicey's third meaning? Give the reason and the surviving insight. No, and deliberately so: India has a written constitution with an entrenched Part III and Article 32, which makes the right to move the Supreme Court for enforcement itself a fundamental right, because the framers had seen rights depend on the goodwill of a colonial government. Dicey's underlying insight survives, that a right is worth what its remedy is worth, which is why Article 32 sits inside Part III and why Rudul Sah, AIR 1983 SC 1086, allowed compensation in the writ petition itself.

So the criticism is not that officials in France escape control. It is close to the opposite: in some respects the French citizen has been better protected against the administration than the English one.

Dicey partly conceded this. In later editions he acknowledged the growth of official powers and of bodies deciding disputes outside the ordinary courts, and modified his position, which is worth saying because it shows the criticism was accepted by its target.

Criticism three: his hostility to discretion cannot survive a welfare State

Dicey's first meaning is stated against wide discretionary authority in the government. Chapter [From the Police State to the Welfare State] shows why that position is not available: a State that regulates industry, prices, health and social security cannot function without discretion, because a legislature cannot foresee every case.

The modern answer is not to abolish discretion but to discipline it. Confine it by standards, structure it by rules and reasons, and check it by review. That is Module IV of this syllabus, and it is the constructive reply to Dicey rather than a refutation of him.

Criticism four: the third meaning does not travel

Dicey's claim that rights are safer when they emerge from case law than when they are written into a constitution is an argument about England, made when England had no bill of rights and no written constitution. It does not describe India, the United States, Germany or, since the Human Rights Act 1998, England itself.

And the Indian framers rejected it deliberately. They had watched liberties depend on executive goodwill and chose to write them down, entrench them, and supply a remedy in Article 32 that is itself a fundamental right.

Criticism five: England had administrative law, and he said it did not

Chapter [The Growth of Administrative Law in England] sets out the record. Even in 1885 England had statutory powers of inspection, licensing and compulsory purchase, and bodies deciding disputes outside the courts. The denial delayed the systematic study of the subject in England by half a century, which is the practical cost of the error.

What survives, and it is a great deal

The first meaning survives almost intact. Public power must rest on a legal source, and a person may not be made to suffer except for a distinct breach of law established in a proper proceeding. Every chapter of this book about ultra vires is that proposition applied.

The first half of the second meaning survives entirely. An official who exceeds his authority is personally liable in the ordinary law. India applies this: an officer who acts outside his powers has no defence in the fact that he was acting officially.

The insistence on a remedy survives. Dicey was right that a right is worth what its remedy is worth, and Rudul Sah v. State of Bihar, AIR 1983 SC 1086, is that insight applied through a written constitution.

And the underlying warning survives. Dicey's real target was government by discretion unanswerable to a court. That target has not gone away, and every case in Module IV is an instance of it.

A distinctions table

A worked example

A revenue officer seizes a trader's goods without any authority under the statute he purports to act under.

Dicey's first meaning. The trader has been made to suffer in his goods without any distinct breach of law established against him. The seizure is unlawful. Indian law reaches the same result through ultra vires and Article 300A.

Dicey's second meaning, first half. The officer is personally liable in trespass or conversion in the ordinary courts, and cannot plead that he acted officially. Indian law agrees.

Dicey's second meaning, second half. He said this claim must be tried in the ordinary courts and not before a special tribunal. Indian law disagrees in form, because a service or revenue tribunal may well be the forum, and agrees in substance, because after L. Chandra Kumar v. Union of India, AIR 1997 SC 1125, the High Court's jurisdiction under Articles 226 and 227 cannot be excluded, so the ordinary judicial hierarchy is never shut out.

Dicey's third meaning. In England the trader's claim would rest on the ordinary law of tort. In India it rests on Article 300A and Article 21 and is enforceable under Articles 32 and 226.

What this does NOT mean

It does not mean Dicey should not be taught. He supplied the vocabulary in which the subject is still argued, and MU's own question is built on his words.

It does not mean administrative courts are always better. France's system works because the Conseil d'Etat is genuinely independent; a specialised tribunal dependent on the executive is exactly what Dicey feared, which is the argument in Chapter [Tribunals After L. Chandra Kumar].

It does not mean equality before the law is obsolete. It is Article 14, and it is the standard by which arbitrary administrative action is struck down every day.

It does not mean Dicey ignored discretion because he was naive. He was writing about a State with almost no administration, and his description was closer to true then than it could ever be now.

Quick revision

1. Five criticisms: the Crown's own immunity; the misreading of droit administratif; hostility to discretion; the third meaning not travelling; and the denial of English administrative law.
2. The Crown could not be sued in tort until the Crown Proceedings Act 1947, sixty-two years after Dicey wrote.
3. India's own express exception to the second meaning is Article 361, covering the President and the Governors.
4. Droit administratif is a system for controlling the administration, not for privileging it, and its remedy for excess of power is wide and cheap.
5. Discretion is unavoidable in a welfare State; the answer is to confine, structure and check it, which is Module IV.
6. India rejected the third meaning deliberately, entrenching Part III and making the remedy in Article 32 itself a fundamental right.
7. What survives: public power must rest on law; officials are personally liable for exceeding authority; and a right is worth what its remedy is worth.

Test yourself

1. Give five criticisms of Dicey's formulation. That the Crown itself was not subject to the ordinary law when he wrote, being unsuable in tort until the Crown Proceedings Act 1947; that he misread droit administratif as a privilege for officials when it is a system for controlling them; that his hostility to wide discretionary authority is unworkable in a welfare State; that his third meaning does not describe countries with written constitutions; and that his denial of English administrative law was false when written.

2. What is the Indian exception to Dicey's second meaning? Article 361, under which the President and the Governors are not answerable to any court for the exercise and performance of the powers and duties of their office, no criminal proceedings may be instituted or continued against them during their term of office, and no process for arrest or imprisonment may issue against them during that term.

3. Why is Dicey's account of droit administratif wrong? Because the French administrative courts, headed by the Conseil d'Etat, exist to control the administration rather than to shelter it, and their remedy for excess of power is available widely and cheaply and developed grounds of review earlier than English law did. Dicey partly conceded the point in later editions.

4. State what survives Dicey's formulation, in three propositions. That every exercise of public power must rest on a legal source and nobody may be made to suffer except for a distinct breach of law established in a proper proceeding; that an official who exceeds his authority is personally liable in the ordinary law and cannot plead official capacity; and that a right is worth what its remedy is worth.

5. How does Indian law both reject and accept Dicey's objection to special tribunals? It rejects the form: India has tribunals under Articles 323A and 323B and under many ordinary statutes, so a dispute with the administration is frequently not tried in an ordinary court at first instance. It accepts the substance: after L. Chandra Kumar v. Union of India, AIR 1997 SC 1125, the jurisdiction of the High Courts under Articles 226 and 227 is part of the basic structure and cannot be excluded, so the ordinary judicial hierarchy is never entirely shut out.

Article 21. No person shall be deprived of his life or personal liberty except according to procedure established by law, which since Maneka Gandhi v. Union of India, AIR 1978 SC 597, means a procedure that is right, just and fair.

Article 22. The arrested person must be informed of the grounds, may consult and be defended by a legal practitioner, and must be produced before a magistrate within twenty-four hours; with the exceptions and safeguards for preventive detention in its later clauses.

Remedies

Article 32. The right to move the Supreme Court by appropriate proceedings for the enforcement of Part III rights is itself a guaranteed right, and the Court may issue directions, orders or writs including habeas corpus, mandamus, prohibition, quo warranto and certiorari.

Article 226. Every High Court may issue the same writs for the enforcement of fundamental rights and for any other purpose, which reaches an ordinary legal right as well.

Article 227. Superintendence over all courts and tribunals within the High Court's territories.

Independence and separation

Article 50. The State shall take steps to separate the judiciary from the executive in the public services of the State. It is a Directive Principle and so unenforceable, but it states the constitutional preference.

Articles 124 to 147 and 214 to 231 secure the appointment, tenure, salary and removal of judges, and Articles 121 and 211 forbid discussion in the legislatures of the conduct of a judge in the discharge of duties, except on a motion for removal.

Article 311 protects the civil servant, which is the rule of law applied to the person who must be free to refuse an unlawful instruction: Chapter [Article 311 and the Protection of Civil Servants].

The limit on the amending power

Article 368 confers the amending power, and Kesavananda Bharati Sripadagalvaru v. State of Kerala, AIR 1973 SC 1461, holds that it does not extend to damaging or destroying the basic structure, of which the rule of law, judicial review and the separation of powers are part. Chapter [The Rule of Law as Basic Structure] works this out.

The exceptions the Constitution itself makes

An honest answer names these, because a student who presents the Indian rule of law as absolute has not read Part XVIII or Article 361.

Article 361. The President and the Governors are not answerable to any court for the exercise and performance of the powers and duties of their office; no criminal proceedings may be instituted or continued against them during their term; and no process for arrest or imprisonment may issue against them during that term.

Preventive detention. Article 22(3) to (7) permit detention without trial, subject to an Advisory Board and to the limits the clauses prescribe. It is a constitutionally sanctioned departure from Dicey's first meaning.

Emergency. Article 358 suspends the freedoms in Article 19 during a Proclamation of Emergency declared on the ground of war or external aggression, and Article 359 permits the suspension of the right to move a court for the enforcement of specified rights. After the Forty-fourth Amendment, Articles 20 and 21 can no longer be suspended under Article 359, which is the direct legislative answer to the case in Chapter [ADM Jabalpur and the Rule of Law in an Emergency].

Immunities of legislators. Articles 105 and 194 protect what is said and done in the House.

A worked example

A State orders a factory closed without notice, under an Act empowering closure in the public interest.

Article 13 and Article 245. Is the Act within the State's legislative competence, and does the closure provision offend Part III? If it does, the provision is void to that extent.

Article 14. Was the closure of this factory and not of comparable ones based on an intelligible differentia related to the object of the Act, and was the decision arbitrary?

Article 19(1)(g) and 19(6). Closure restricts an occupation, so the restriction must be reasonable and in the interests of the general public.

Article 21 and natural justice. Closure entails civil consequences, so a duty to act fairly attaches, and after Maneka Gandhi the procedure must be right, just and fair.

Article 300A. If plant is taken as well as the business stopped, deprivation of property requires authority of law.

Articles 226 and 32. The remedy, and the exclusion of Article 226 would itself be unconstitutional after L. Chandra Kumar v. Union of India, AIR 1997 SC 1125.

Six constitutional provisions in one ordinary administrative dispute. That is what it means to say the rule of law in India is a group of provisions rather than a slogan.

What this does NOT mean

There is no Article that says rule of law. The phrase appears nowhere in the text. It is a description of what a group of Articles, read together, achieve.

The Directive Principles do not enforce it. Article 50 states a preference and is not enforceable by Article 37.

Article 361 is not a small exception. It is a complete personal immunity during the term of office, and it should be stated whenever Dicey's second meaning is stated.

The rule of law is not suspended by an emergency. Since the Forty-fourth Amendment, Articles 20 and 21 cannot be suspended under Article 359 at all.

Quick revision

1. Supremacy: Articles 13, 245, 246, 265, 266, 300A.
2. Equality: Article 14, both limbs, and arbitrariness after Royappa, AIR 1974 SC 555.
3. Liberty and criminal process: Articles 20, 21 and 22, with Maneka Gandhi, AIR 1978 SC 597, requiring a right, just and fair procedure.
4. Remedies: Articles 32, 226 and 227, with Article 226 wider because it runs for any other purpose.
5. Independence: Articles 50, 121, 211, 124 to 147, 214 to 231, and Article 311 for the civil servant.
6. The limit on amendment: Article 368 with the basic structure doctrine from Kesavananda, AIR 1973 SC 1461.
7. Exceptions: Article 361, preventive detention under Article 22, Articles 358 and 359 in an emergency, and Articles 105 and 194.
8. After the Forty-fourth Amendment, Articles 20 and 21 cannot be suspended under Article 359.

Test yourself

1. List the constitutional provisions that secure the rule of law in India, grouped by function. Supremacy of law: Articles 13, 245, 246, 265, 266 and 300A. Equality: Article 14. Liberty and criminal process: Articles 20, 21 and 22. Remedies: Articles 32, 226 and 227. Independence and separation: Articles 50, 121, 211, the judicial appointment and tenure provisions, and Article 311. Limit on amendment: Article 368 read with the basic structure doctrine.

2. Why does Article 13(3)(a) matter to administrative law in particular? Because it defines law to include an ordinance, order, bye-law, rule, regulation, notification, custom or usage having the force of law, so delegated legislation made by the executive is void under Article 13(2) if it takes away or abridges a fundamental right, exactly as an Act would be.

3. Name four exceptions the Constitution itself makes to the rule of law. Article 361, the immunity of the President and the Governors; preventive detention under Article 22(3) to (7); the suspension of Article 19 under Article 358 and of specified rights under Article 359 during an emergency; and the immunities of legislators under Articles 105 and 194.

4. What did the Forty-fourth Amendment change about emergencies? It provided that Articles 20 and 21 cannot be suspended under Article 359, so the right to move a court for enforcement of the protections against retrospective criminal law and self-incrimination, and of life and personal liberty, survives even during a Proclamation of Emergency.

5. Is there an Article of the Constitution that states the rule of law? Explain your answer. No. The phrase appears nowhere in the text. The rule of law in India is what a group of Articles achieves when read together, from the supremacy provisions in Articles 13 and 265 through equality in Article 14 and liberty in Articles 20 to 22 to the remedies in Articles 32 and 226, with the basic structure doctrine limiting even the power to amend them.

Why it matters here. It made procedural fairness a constitutional requirement rather than a common law implication, and it is the bridge between the rule of law and the whole of administrative procedure.

Three: the State must keep its own standards

Facts. Ramana Dayaram Shetty v. International Airport Authority of India, AIR 1979 SC 1628, concerned tenders to run a restaurant and two snack bars at Bombay airport. The Authority's own public notice confined eligibility to registered second class hoteliers with at least five years' experience. Of six tenders only the fourth respondent's was complete and highest, and it did not satisfy that condition. The Authority accepted it.

Held. The acceptance was invalid. The eligibility condition was an objective test which the Authority itself had treated as meaningful, and accepting a tender from a person who did not satisfy it excluded others similarly situated from tendering at all, which was discriminatory and arbitrary and violated both the equality clause and the administrative law rule against arbitrary action.

Why it matters here. It brought contracts, licences, quotas and permits, which is where most citizens actually meet the State, inside the rule of law.

Four: even contractual State action answers to Article 14

Facts. Kumari Shrilekha Vidyarthi v. State of Uttar Pradesh, AIR 1991 SC 537, concerned a circular by which the State terminated the appointments of all District Government Counsel with effect from a single date, whether or not their terms had expired, and directed fresh panels to be prepared. The State argued that the relationship was purely contractual, like that of a private litigant and his counsel.

Held. The circular was quashed. The Government Counsel hold a public office and not a merely contractual engagement, since the Legal Remembrancer's Manual treats them as law officers, they are paid from the public exchequer, and a clear public element attaches to the post. Every State action, even in the contractual field, must satisfy Article 14: arbitrariness is the very negation of the rule of law, and a wholesale termination without any cogent reason in furtherance of the object for which the power was given is arbitrary and against public policy.

Why it matters here. It is the answer to the argument that the State, when it contracts, is merely a private party. The rule of law follows the State into its commercial dealings.

Five: the absence of arbitrary power

Facts. Som Raj v. State of Haryana, AIR 1990 SC 1176, arose out of a claim by ministerial employees in the subordinate offices of the Directorates of Agriculture of Punjab and Haryana to common seniority with their counterparts in the Directorates, on the footing that their pay scales, qualifications and conditions of service were the same.

Held. The appeals were dismissed. The Rules themselves treated the Directorate and the subordinate offices as separate cadres, with the subordinate cadre in some cases a feeder for promotion to the Head Office, so there was a reasonable nexus for the distinction and the classification did not offend Articles 14 and 16. Government may constitute different cadres in a service according to administrative convenience and expediency.

Why it matters here. The case is remembered for the proposition it states about the rule of law in the ordinary setting of a service dispute rather than a constitutional crisis: that the absence of arbitrary power is the first essential of the rule of law upon which the whole constitutional system is based, and that discretion, when conferred upon an executive authority, must be confined within clearly defined limits.

Six: the rule of law limits even the amending power

Facts. Kesavananda Bharati Sripadagalvaru v. State of Kerala, AIR 1973 SC 1461, was a challenge by the head of a mutt to Kerala land reform legislation and, with it, to the Twenty-fourth, Twenty-fifth and Twenty-ninth Amendments. Thirteen judges heard it, the largest Bench the Court has ever assembled.

Held. Parliament's power to amend under Article 368 is wide but does not extend to damaging or destroying the basic structure or essential features of the Constitution. The judgments name the supremacy of the Constitution, the rule of law, the separation of powers and judicial review among those features.

Why it matters here. It is the reason the rule of law in India is not merely a standard for testing executive action but a limit on the constituent power itself. Chapter [The Rule of Law as Basic Structure] takes this further.

The line in one table

What this does NOT mean

The line is not uninterrupted. Additional District Magistrate, Jabalpur v. Shivkant Shukla, AIR 1976 SC 1207, sits inside it, and the next chapter deals with it honestly.

Royappa did not win his case. The proposition it is famous for was stated in a judgment that dismissed the petition, which is worth saying because students often assert the opposite.

Som Raj did not win either. The appeals were dismissed, and the rule of law passage is the Court's reasoning about the standard rather than the result.

None of these cases uses the phrase to decide the outcome by itself. In each the rule of law supplies the standard, and the decision turns on applying it to facts.

A worked example

A State issues an order under a statute permitting it to detain a person whose activities are prejudicial to public order, and detains a trade union leader on the eve of a strike. Take the six decisions in turn and see what each contributes.

Anwar Ali Sarkar. Was the leader singled out? If the statute lets the executive pick which persons or cases go to a special procedure without a standard, it fails Article 14, because equal protection requires a classification founded on an intelligible differentia with a rational relation to the object.

Royappa. Even without a comparator, if the order is arbitrary it is for that reason unequal and void, because equality is antithetic to arbitrariness.

Maneka Gandhi. The procedure by which he was detained must be right, just and fair, not merely a procedure the statute prescribes, because Article 21 does not tolerate arbitrary procedure.

Ram Jawaya Kapur. The executive cannot detain him at all without a law, since executive power does not extend to depriving a person of liberty without legislative authority.

Indira Nehru Gandhi. If Parliament were to amend the Constitution to declare his detention valid and beyond challenge, the amendment would itself be tested against basic structure.

ADM Jabalpur. And if his right to move a court under Article 21 were suspended by a Presidential order, the case as decided in 1976 would have left him with no remedy at all, which is why Article 359 was amended and the decision overruled.

The six are cumulative, not alternative. Each closed a gap the previous one left open.

Quick revision

1. Royappa, AIR 1974 SC 555: equality and arbitrariness are sworn enemies; an arbitrary act is unequal and violates Article 14. The petition itself failed.
2. Maneka Gandhi, AIR 1978 SC 597: Articles 14, 19 and 21 read together; procedure must be right, just and fair; natural justice applies to administrative action with civil consequences.
3. Airport Authority, AIR 1979 SC 1628: departure from a self-imposed standard in distributing largesse is arbitrary.
4. Shrilekha Vidyarthi, AIR 1991 SC 537: arbitrariness is the very negation of the rule of law, and Article 14 applies to State action in the contractual field.
5. Som Raj, AIR 1990 SC 1176: the absence of arbitrary power is the first essential of the rule of law, and discretion must be confined within clearly defined limits. The appeals were dismissed.
6. Kesavananda Bharati, AIR 1973 SC 1461: the rule of law is part of the basic structure and limits the amending power.
7. The line is not uninterrupted: ADM Jabalpur is inside it.

Test yourself

1. State the proposition in Royappa and say what happened to the petitioner. That equality is a dynamic concept antithetic to arbitrariness, that equality and arbitrariness are sworn enemies, and that where an act is arbitrary it is implicit in it that it is unequal and therefore violative of Article 14. The petition itself failed, the allegation of mala fides not having been made out.

2. What three things did Maneka Gandhi decide? That Articles 14, 19 and 21 are not watertight compartments and must be read together; that procedure established by law under Article 21 must be right, just and fair and not arbitrary, fanciful or oppressive; and that natural justice applies to administrative action entailing civil consequences, the duty to act judicially being spelt out from the nature of the power, the manner of its exercise and its impact.

3. Why is Shrilekha Vidyarthi important to the rule of law? Because it holds that the State cannot escape Article 14 by characterising its action as contractual. Government Counsel hold a public office with a public element attaching to it, and a wholesale termination without cogent reason in furtherance of the object for which the power was conferred is arbitrary, arbitrariness being the very negation of the rule of law.

4. Give the proposition Som Raj is remembered for, and the result of the case. That the absence of arbitrary power is the first essential of the rule of law upon which the whole constitutional system is based, and that a discretion conferred on an executive authority must be confined within clearly defined limits. The appeals were dismissed, because the rules themselves treated the Directorate and the subordinate offices as separate cadres with a reasonable nexus for the distinction.

5. How does Kesavananda differ from the others in this chapter? The others test executive or administrative action against the rule of law. Kesavananda makes the rule of law a limit on the constituent power itself, holding that the amending power under Article 368 does not extend to damaging or destroying the basic structure, of which the rule of law, judicial review and the separation of powers form part.

Held, by Khanna J, dissenting. That the recognition of the right to life and personal liberty in the Constitution does not exhaust the existence of that right, which is not a bounty conferred by the State; that there is no antithesis between the power to detain and the power of a court to examine the legality of a detention; and that the impact upon the individual of the massive and comprehensive powers of preventive detention with which administrative officers are armed has to be cushioned with legal safeguards against arbitrary deprivation of personal liberty if the premises of the rule of law are not to lose their content and become meaningless.

Why it matters here. It is the point at which the Indian rule of law failed, and the reasons it failed are the subject matter of this book: a wide discretionary power, an ouster of the remedy, and a court that treated the ouster as complete.

What was wrong with the majority reasoning

It confused the right with the remedy. Article 359 suspends the right to move a court for enforcement. The majority treated that as extinguishing the underlying obligation of the executive to act under the statute.

It made the statute unenforceable as well as the Article. A detention not authorised by the Act at all is not merely an infringement of Article 21; it is action without legal authority, which is the first meaning of the rule of law in Chapter [Dicey's Three Meanings of the Rule of Law].

It left mala fides unexaminable. On the majority view an order made in bad faith, for a purpose the Act did not permit, was equally beyond challenge.

And it treated rights as gifts. The proposition that Article 21 is the sole repository of the right to life and personal liberty means that the right exists only because the Constitution says so, and can therefore be suspended when the Constitution's own machinery permits.

What answered it

One: the Constitution (Forty-fourth Amendment) Act 1978. Article 359(1) now reads that the President may suspend the right to move any court for the enforcement of such of the rights conferred by Part III (except articles 20 and 21) as may be mentioned in the order. So the exact thing done in 1975 can no longer be done. Article 358 was also narrowed to a Proclamation on the ground of war or external aggression. This is the legislature correcting a court, and it is the strongest example in the syllabus of a democratic answer to a judicial failure.

Two: the nine judges who overruled it.

Facts. Justice K.S. Puttaswamy (Retd) v. Union of India, AIR 2017 SC 4161, was a reference to nine judges on whether the right to privacy is protected by the Constitution. In the course of it the Court examined what it called the discordant notes in the evolution of the doctrine of personal liberty.

Held on ADM Jabalpur. The judgments rendered by all four judges constituting the majority in ADM Jabalpur are seriously flawed. Life and personal liberty are inalienable to human existence and are not creations of the Constitution; the right to life existed before the Constitution and continued in force under Article 372, so in recognising the right the Constitution does not become its sole repository. The power of the Court to issue a writ of habeas corpus is a precious and undeniable feature of the rule of law, and a constitutional democracy can survive only when citizens have an undiluted assurance that the rule of law will protect their rights against invasion by the State. The view taken by Khanna J must be accepted, and accepted in reverence for the strength of its thoughts and the courage of its convictions.

Held in the operative order. The reference was answered by holding that the right to privacy is protected as an intrinsic part of the right to life and personal liberty under Article 21 and as part of the freedoms guaranteed by Part III, and by overruling M.P. Sharma and, to the extent indicated, Kharak Singh.

Why it matters here. Note the precision, because it is examinable. The formal order overrules M.P. Sharma and Kharak Singh. ADM Jabalpur is dealt with in the body of the judgment, where the majority judgments are held seriously flawed and Khanna J's dissent is accepted. The proposition ADM Jabalpur stood for is therefore no longer law, and a student should say that rather than say the operative order overruled it.

A distinctions table

What this does NOT mean

It does not mean the majority acted in bad faith. They construed Article 359 literally in a situation the Constitution had provided for. The criticism is that the construction was wrong and that a court should have read an ouster narrowly.

It does not mean emergencies are unconstitutional. Article 352 exists. What the Forty-fourth Amendment changed is what may be suspended.

It does not mean Khanna J's view was novel. It is the ordinary position of the rule of law, that a power conferred by statute must be exercised within the statute, and that a court may say whether it was.

It does not mean the case has no use. It is the clearest demonstration in Indian law of why an ouster clause must be read narrowly, which is the doctrine in Chapter [Judicial Control: Substantive Ultra Vires].

A worked example

Set the same facts in three different years and watch the answer change. A person is detained under a preventive detention law during a Proclamation of Emergency, and a Presidential order under Article 359 suspends the right to move any court for enforcement of Articles 14, 21 and 22.

In 1976. On ADM Jabalpur the writ petition is not maintainable at all. The detenu may not ask the court whether the detention order was even authorised by the statute, whether it was made by the right authority, or whether it was mala fide, because Article 21 is the sole repository of the right to life and personal liberty and access to enforce it has been suspended.

After 1978. Article 359(1) now excepts Articles 20 and 21 from suspension. So the Presidential order cannot touch the detenu's right to move a court under Article 21, the petition is maintainable, and the court decides whether the detention is lawful.

After 2017. The reasoning of the majority is not merely displaced by the amendment; it is expressly overruled in Puttaswamy, so it cannot be cited as an authority at all. Life and personal liberty are recognised as inalienable rights not conferred by the Constitution, and Justice Khanna's dissent is approved.

The trap in an examination. To describe the case as good law that was later amended out of the way. It is not good law. The amendment removed its practical effect, and the nine judge Bench removed its authority.

Quick revision

1. Proclamations of Emergency of 3 December 1971 and 25 June 1975; Presidential Order under Article 359(1) of 27 June 1975 suspending enforcement of Articles 14, 21 and 22.
2. ADM Jabalpur, AIR 1976 SC 1207: by four to one, no locus standi to move a High Court under Article 226 for habeas corpus on any ground, and Article 21 is the sole repository of the right to life and personal liberty.
3. Sections 16A(9) and 18 of the Maintenance of Internal Security Act 1971 were upheld.
4. Khanna J dissented: the right is not a bounty of the State, there is no antithesis between the power to detain and the power to examine legality, and the rule of law loses its content without such safeguards.
5. The Forty-fourth Amendment 1978 excepted Articles 20 and 21 from Article 359(1) and narrowed Article 358 to war or external aggression.
6. Puttaswamy, AIR 2017 SC 4161: the four majority judgments are seriously flawed, the right to life pre-exists the Constitution, and Khanna J's view must be accepted.
7. The operative order in Puttaswamy overruled M.P. Sharma and Kharak Singh; ADM Jabalpur was disapproved in the body of the judgment.

Test yourself

1. What exactly did the majority in ADM Jabalpur hold? That in view of the Presidential Order under Article 359(1) no person had locus standi to move a High Court under Article 226 for habeas corpus or any other writ to challenge the legality of a detention order on the ground that it was not in compliance with the Maintenance of Internal Security Act 1971, or was illegal, or was vitiated by mala fides factual or legal, or was based on extraneous considerations; that sections 16A(9) and 18 of the Act were valid; and that Article 21 is the sole repository of the right to life and personal liberty against the State.

2. Summarise Khanna J's dissent in three propositions. That the recognition of the right to life and personal liberty by the Constitution does not exhaust the existence of that right, which is not a bounty conferred by the State; that there is no antithesis between the power to detain and the power of a court to examine the legality of the detention; and that the massive powers of preventive detention must be cushioned with legal safeguards if the premises of the rule of law are not to become meaningless.

3. What did the Forty-fourth Amendment change, and why is it significant? It amended Article 359(1) so that the right to move a court may be suspended in respect of Part III rights except Articles 20 and 21, and narrowed Article 358 to a Proclamation on the ground of war or external aggression. It is significant because it is the legislature correcting a judicial failure by constitutional amendment, so that the precise order made in 1975 could not lawfully be made again.

4. State precisely what Puttaswamy did to ADM Jabalpur. In the body of the judgment the Court held that the judgments of all four judges in the majority were seriously flawed, that life and personal liberty are inalienable and pre-exist the Constitution so that the Constitution is not their sole repository, that the power to issue habeas corpus is a precious feature of the rule of law, and that Khanna J's view must be accepted. The operative order of the Court overruled M.P. Sharma and, to the extent indicated, Kharak Singh, and did not in terms list ADM Jabalpur.

5. What lesson does the case carry for the reading of ouster clauses? That an ouster must be read narrowly and confined to what it actually says. Article 359 suspends the right to move a court for the enforcement of a Part III right; it does not dispense the executive from acting within the statute under which it detains, and treating the two as the same left illegality and bad faith alike unexaminable.

Held. Clause (4) of Article 329A was struck down. The reasoning that a student should be able to reproduce is threefold. The nature of the constituent power is legislative, so it cannot be used to exercise judicial power: the Constitution may be amended to change constitutional provisions, but the constituent power cannot enact that a particular person is declared to be elected. Free and fair elections are part of the democratic structure, and an election held invalid for corrupt practices cannot be validated by an amendment. And the jurisdiction of the courts to determine the validity of an election cannot be removed for one class of person without destroying the democratic character of the Constitution. The appeal was then heard on the merits under the ordinary election law.

Why it matters here. It is the rule of law operating at its highest level: Parliament, sitting as the constituent power, may not decide an individual case in its own favour, and may not remove the court's jurisdiction to decide it.

The doctrine applied to the Ninth Schedule

Facts. I.R. Coelho (dead) by LRs v. State of Tamil Nadu, AIR 2007 SC 861, concerned statutes placed in the Ninth Schedule after 24 April 1973, the date of Kesavananda. Article 31B on its face immunises anything in that Schedule from challenge on the ground that it takes away or abridges a fundamental right, so the Schedule had been used to shelter a growing number of Acts.

Held. A Bench of nine judges held that laws placed in the Ninth Schedule after 24 April 1973 are open to challenge if they damage or destroy the basic structure. The test is the effect of the impugned law on the rights guaranteed by Articles 14, 19 and 21 read together, and not the form of the amendment. If the effect is to abrogate an essential feature, the law will not be saved by Article 31B.

Why it matters here. It shows the doctrine working as a live constraint, and it establishes the method: courts look at effect and not at form, which is the same technique used in Chapter [Rule-Making, Adjudication and Administrative Action] to classify an administrative act.

The doctrine applied to judicial appointments

The most recent large application, and the one MU's own examiners are most likely to have in mind when they ask about the independence of the judiciary.

Facts. Supreme Court Advocates-on-Record Association v. Union of India (NJAC), decided on 16 October 2015, was a challenge to the Constitution (Ninety-ninth Amendment) Act 2014 and the National Judicial Appointments Commission Act 2014, which replaced the collegium system of judicial appointments with a Commission including the Union Minister of Law and Justice and two eminent persons.

Held. The Amendment and the Act were struck down as violating the independence of the judiciary, which is part of the basic structure, the majority holding that the composition of the Commission left the primacy of the judiciary in appointments insufficiently protected. The collegium system revived.

Why it matters here. It is the clearest modern demonstration that the basic structure doctrine binds an amendment passed with the majorities Article 368 requires and ratified by the States, and it is contested precisely for that reason.

The criticism, which an LL.M. answer must carry

The doctrine has no textual basis. Article 368 contains no limitation of this kind, and the Court supplied one.

Its content is uncertain. No list of basic features has ever been settled, and each Bench adds to it.

It is counter-majoritarian. An amendment passed by two thirds of each House and ratified by half the States is as democratic an act as the system produces, and an unelected court sets it aside.

The answers. That a power to amend is not a power to destroy the thing amended, or nothing would be left to amend under. That the alternative is a constitution alterable into anything, including one without elections or courts. And that the Emergency showed what a legislature with an unlimited amending power will actually do, which is the strongest argument and is historical rather than theoretical.

A worked example

Parliament passes a constitutional amendment providing that no election to Parliament shall be called in question in any court, that a law placed in a new schedule shall not be tested against Part III, and that the President may appoint judges of the High Courts without any consultation. Take the three limbs one at a time.

The election clause. Struck down on the reasoning of Indira Nehru Gandhi. A constitutional amendment that decides an election dispute, or removes it from every forum, exercises judicial power without a forum and destroys free and fair elections and the rule of law, both of which are basic features.

The schedule clause. Tested on Coelho. A law placed in the Ninth Schedule after 24 April 1973 is not immune merely by being placed there: it is examined on the touchstone of Articles 14, 19 and 21, and if it damages the basic structure it goes, because it is the effect of the law on the rights and not its form that decides.

The appointments clause. Struck down on the reasoning of the NJAC judgment. The independence of the judiciary and the primacy of the judiciary in appointments are basic features, and an amendment that gives the executive an unchecked hand in appointments destroys them.

The method to reproduce. Identify the feature said to be basic; ask whether the amendment damages or destroys it, not merely whether it affects it; and remember that the test is applied to an amendment, not to an ordinary law, which is tested against Part III directly.

Quick revision

1. Kesavananda Bharati, AIR 1973 SC 1461, thirteen judges: Article 368 does not permit damaging or destroying the basic structure.
2. Features named include the supremacy of the Constitution, democracy, secularism, separation of powers, federalism, the rule of law and judicial review.
3. Indira Nehru Gandhi, AIR 1975 SC 2299: clause (4) of Article 329A struck down; the constituent power is legislative and cannot exercise judicial power, free and fair elections are part of the democratic structure, and the courts' jurisdiction over an election cannot be removed for one class of person.
4. Coelho, AIR 2007 SC 861, nine judges: laws added to the Ninth Schedule after 24 April 1973 are testable against the basic structure, and the test is effect on Articles 14, 19 and 21 read together, not form.
5. The NJAC decision of 16 October 2015 struck down the Ninety-ninth Amendment and the NJAC Act for violating the independence of the judiciary.
6. Criticisms: no textual basis, uncertain content, counter-majoritarian.
7. Answers: a power to amend is not a power to destroy; the alternative is an alterable-into-anything constitution; and the Emergency showed what happens without the limit.

Test yourself

1. State the basic structure doctrine and name five features held to be part of it. That Parliament's power to amend the Constitution under Article 368 is wide but does not extend to damaging or destroying the basic structure or essential features. Features named include the supremacy of the Constitution, the democratic and republican form of government, the separation of powers, the federal character of the Constitution, the rule of law, judicial review and free and fair elections.

2. Set out the three grounds on which Article 329A(4) was struck down. That the nature of the constituent power is legislative, so it cannot be used to exercise judicial power and cannot enact that a particular person is declared elected; that free and fair elections are part of the democratic structure, so an election held void for corrupt practices cannot be validated by amendment; and that removing the courts' jurisdiction to determine the validity of the election of one class of person destroys the democratic character of the Constitution.

3. What is the Coelho test, and from what date does it operate? That a law placed in the Ninth Schedule is open to challenge if it damages or destroys the basic structure, the test being the effect of the law on the rights in Articles 14, 19 and 21 read together rather than the form of the amendment. It operates on laws added to the Schedule after 24 April 1973, the date of the judgment in Kesavananda Bharati.

4. What did the NJAC decision hold, and why is it contested? That the Constitution (Ninety-ninth Amendment) Act 2014 and the National Judicial Appointments Commission Act 2014 violated the independence of the judiciary, which is part of the basic structure, so both were struck down and the collegium revived. It is contested because the Amendment had been passed by the special majorities Article 368 requires and ratified by the States, so the decision sets aside an act of the constituent power itself.

5. Give the strongest argument for and the strongest argument against the doctrine. For: a power to amend is not a power to destroy what is being amended, and without the limit the Constitution could be altered into one with no elections and no courts, which the Emergency showed was not a theoretical risk. Against: the doctrine has no textual foundation in Article 368, its content has never been exhaustively settled, and it allows an unelected court to set aside an amendment carried by the very majorities the Constitution itself prescribes.

Its Indian expression. Part IV, especially Articles 38, 39 and 41, and Article 39A, which directs the State to secure that the operation of the legal system promotes justice on a basis of equal opportunity and to provide free legal aid so that opportunities for securing justice are not denied by reason of economic or other disabilities.

And in the case law. Rudul Sah v. State of Bihar, AIR 1983 SC 1086, is the positive dimension in action: the Court held that Article 21 would be denuded of significant content if its power were limited to ordering release, and awarded compensation in the writ petition itself, because a right without an effective remedy is not a right.

Dimension three: from national to international

The rule of law is now asserted as an international standard, in the United Nations system and in the practice of international financial institutions, and it has consequences for domestic administrative law. Chapter [Globalization and Liberalization Policy] describes them: published criteria, reasoned decisions and appeal rights are demanded not only by citizens but by investors and treaty partners.

For MU's 2026 question this is the direct link. The changing dimensions of the rule of law influenced the regulation of the administrative process by requiring that regulation be by published rule and reasoned decision rather than by discretion, which is what produced the regulator statutes of Chapter [The Regulatory Agencies of the Indian State].

Dimension four: from the State to private power

Administrative law developed against the State because the State held the power. Where a private body now performs a public function, delivers an essential service or exercises monopoly power, the same reasoning applies to it.

In Indian law this has happened in two ways. Through Article 12, by holding bodies to be instrumentalities of the State: Ajay Hasia v. Khalid Mujib Sehravardi, AIR 1981 SC 487, and Pradeep Kumar Biswas v. Indian Institute of Chemical Biology, (2002) 5 SCC 111. And through Article 226, which runs against any person or authority in respect of a public duty, and is therefore wider than Article 12.

Facts. Kumari Shrilekha Vidyarthi v. State of Uttar Pradesh, AIR 1991 SC 537, concerned a circular terminating the appointments of all District Government Counsel in Uttar Pradesh by a single date, the State arguing that the relationship was purely contractual.

Held. The appointments were to a public office with a public element attaching to it, and every State action, even in the contractual field, must satisfy Article 14, since arbitrariness is the very negation of the rule of law; a wholesale termination without cogent reason was arbitrary.

Why it matters here. It is the dimension in which the rule of law expands to follow power wherever power actually is, which is what an examiner means by changing dimensions.

How the changing dimensions changed the administrative process

This is MU's 2026 question, and it deserves a direct list.

Reasons became compulsory. S.N. Mukherjee v. Union of India, AIR 1990 SC 1984: an authority exercising quasi-judicial functions must record reasons unless the requirement is dispensed with expressly or by necessary implication.

Fairness became constitutional. After Maneka Gandhi it is Article 21 and not merely the common law that requires a fair procedure.

Arbitrariness became a ground by itself. After E.P. Royappa v. State of Tamil Nadu, AIR 1974 SC 555, a decision may be struck down for being arbitrary without any other defect being shown.

Standards became binding on their maker. Ramana Dayaram Shetty v. International Airport Authority of India, AIR 1979 SC 1628.

Remedies became substantive. Compensation in the writ jurisdiction, on Rudul Sah.

Access widened. Public interest litigation relaxed standing so that a person who could not litigate for herself could be represented, which is the procedural face of the positive dimension.

Transparency became a right. The Right to Information Act 2005, described in Chapter [The Machinery of Accountability].

The criticism

The substantive conception loses precision. Once the rule of law includes social and economic conditions, it stops being a distinct legal test and becomes a synonym for good government, and a court applying it may be applying its own preferences.

The positive dimension is not judicially manageable. A court can quash an order; it cannot deliver literacy.

And the honest answer is that Indian law has accepted the risk, because Part III and Part IV together commit it to a substantive conception, and because the alternative, a purely formal rule of law, would have certified the Emergency as lawful. Chapter [ADM Jabalpur and the Rule of Law in an Emergency] is what a formal conception looks like when it is all a court has.

A worked example

A State runs a midday meal scheme under an executive order, without any statute. Two hundred children in a district receive nothing for four months because the district officer has not lifted the grain. What does each dimension of the rule of law say?

The formal dimension. Very little. There is no statute conferring a right to the meal, and on a strict formal view the scheme is a bounty which the State may run well or badly.

The Diceyan dimension. Something, but sideways. The officer is subject to the ordinary law, so if he has committed an offence or a tort he answers for it, but that is a remedy against him and not for the children.

The substantive dimension. A great deal. The right to food has been read into the right to life under Article 21, so the scheme is the discharge of a constitutional obligation and not a bounty, and the failure is a failure to secure a fundamental right.

The procedural dimension. The children are entitled to know why the meal stopped, and a scheme run without published norms, without a grievance procedure and without records is one nobody can question.

The remedial dimension. The writ jurisdiction is available, standing is relaxed because the persons affected cannot come to court themselves, and the court may issue continuing directions and require compliance reports.

The chapter in one exercise: each added dimension turns a matter of grace into a matter of right, and it is the last two, procedure and remedy, that make the difference practically.

Quick revision

1. Four changing dimensions: formal to substantive, negative to positive, national to international, and State to private power.
2. Formal to substantive: Maneka Gandhi, AIR 1978 SC 597, made procedure under Article 21 a matter of fairness and not merely of enactment.
3. Negative to positive: the Delhi Declaration of the International Commission of Jurists, 1959, and Articles 38, 39, 39A and 41.
4. Rudul Sah, AIR 1983 SC 1086: compensation in the writ jurisdiction, because a right without a remedy is not a right.
5. National to international: published criteria and reasoned decisions demanded by treaty partners and investors as well as citizens.
6. State to private power: Article 12 through Ajay Hasia and Pradeep Kumar Biswas, and Article 226 which reaches any public duty.
7. Effects on the administrative process: compulsory reasons, constitutional fairness, arbitrariness as a ground, standards binding their maker, substantive remedies, wider access, and a statutory right to information.
8. Criticism: the substantive conception loses precision and the positive dimension is not judicially manageable.

Test yourself

1. Name the four changing dimensions of the rule of law. From a formal conception concerned with the manner of making and applying law to a substantive conception concerned with its content; from a negative restraint on the State to a positive claim upon it; from a national doctrine to an international standard; and from a doctrine about the State alone to one reaching private power that performs public functions.

2. Quote the substance of the Delhi Declaration of 1959 and say why it matters. That the rule of law is a dynamic concept which should be employed not only to safeguard and advance the civil and political rights of the individual in a free society but also to establish the social, economic, educational and cultural conditions under which his legitimate aspirations and dignity may be realised. It matters because it converts the rule of law from a limit on State action into a programme for it.

3. Which decision marks the move from the formal to the substantive conception in India, and how? Maneka Gandhi v. Union of India, AIR 1978 SC 597. Before it, procedure established by law under Article 21 meant any procedure a competent legislature enacted; after it, the procedure must be right, just and fair and not arbitrary, fanciful or oppressive, so the content of the law and not merely its enactment became the test.

4. List five ways in which the changing dimensions altered the administrative process. Reasons became compulsory for quasi-judicial decisions under S.N. Mukherjee; fairness became a constitutional requirement under Article 21 after Maneka Gandhi; arbitrariness became a ground of invalidity by itself after Royappa; a published standard became binding on the authority that published it after Airport Authority; and compensation became available in the writ jurisdiction after Rudul Sah.

5. State the criticism of the substantive conception, and the Indian answer to it. That once the rule of law includes social and economic conditions it ceases to be a distinct legal test and becomes a synonym for good government, in which a court may be applying its own preferences, and that a court cannot deliver what the positive dimension promises. The Indian answer is that Part III and Part IV together commit the Constitution to a substantive conception, and that a purely formal conception is what left the Court with nothing to say in ADM Jabalpur.

And the law here is moving. Section 8(1)(j) of the Right to Information Act 2005 was substituted with effect from 13 November 2025 by the Digital Personal Data Protection Act 2023, and now reads simply as information which relates to personal information. Section 8(2), which permits disclosure where the public interest outweighs the harm, remains. The interaction between transparency and data protection is the live question, and an answer that treats them as the same value has missed it.

Three: the volume of delegated legislation

Most binding law in India is now made by the executive, not the legislature. Module III is entirely about it. The rule of law problems are three: volume, because nobody can read it all; obscurity, because a rule is buried in a gazette; and weak scrutiny, because parliamentary control is exercised by a committee that cannot keep pace, as Chapter [The Committee on Subordinate Legislation] records.

Four: delay, and the gap between a right and a remedy

The doctrine says that every administrative act is reviewable under Articles 226 and 32.

The practice is that review costs money and takes years, so the citizen most likely to suffer administrative illegality is the least able to challenge it. Article 39A directs the State to secure equal justice and free legal aid, and the Legal Services Authorities Act 1987 implements it, but the gap remains.

This is the single most important thing to say in a current scenario answer, because it is the point at which the rule of law is not a theoretical question at all: a remedy that exists and cannot be used is a formal right and a practical absence.

Five: dead law that stays on the books

Chapter [Innovation in Legislation and Governance After Liberalization] records the clearest example. Section 66A of the Information Technology Act 2000, which punished sending offensive messages through a communication service, had been held unconstitutional years earlier and yet remained printed in the Act, with prosecutions still being registered under it, until it was omitted by the Jan Vishwas (Amendment of Provisions) Act 2023 with effect from 30 November 2023.

The rule of law point. Publicity and certainty are elements of the rule of law. A statute book that prints an invalid provision misleads the citizen and the official alike, and a judicial declaration does not remove the text. Legislative housekeeping is therefore not a clerical matter but a rule of law obligation.

Six: automated decision-making

An increasing number of administrative decisions are taken, or effectively taken, by a system: eligibility scored from a database, a claim rejected because a field did not match, a benefit stopped because an identifier failed to authenticate. Chapter [Technology and Discretion] deals with it as a question about discretion. As a question about the rule of law it raises three difficulties.

Reasons. A decision must be explicable, and a system that outputs a result without a reason cannot satisfy S.N. Mukherjee v. Union of India, AIR 1990 SC 1984.

Fairness. A person affected must be able to answer the case against them, which requires knowing what the case is.

Review. A court reviews a decision-making process, and where the process is a program the material a court needs may not exist in a form anybody can produce.

A worked example

A district administration suspends mobile internet for a week during a public examination, by an order under a public safety power, and does not publish the order.

Legality. Is there a statutory power, and does it cover this purpose? If not, the order is ultra vires, which is Dicey's first meaning.

Publication. Anuradha Bhasin requires publication, because an unpublished order cannot be challenged, which is the rule in Chapter [Publication, and the Rule That an Unpublished Rule Binds Nobody] applied to an executive order.

Reasons. The order must show why the restriction was necessary in the circumstances.

Proportionality. Was there a legitimate goal, a rational connection, a less restrictive alternative such as suspending one service rather than all, and a fair balance?

Duration and review. An indefinite suspension is impermissible and the order must be reviewed periodically.

Remedy. Article 226, and here the practical difficulty of Five: a week-long suspension will usually be over before a petition is heard, so the remedy that exists in law may deliver nothing in fact.

What this does NOT mean

It does not mean the rule of law is failing. It means it is being contested in different places from Dicey's.

It does not mean security powers are unlawful. It means they are subject to publication, reasons, proportionality and review.

It does not mean technology is the enemy. Chapter [E-Governance: Administration by Electronic Means] records real gains in record keeping and in the reduction of discretion.

It does not mean the answer is more litigation. Several of these problems, particularly delay and dead law, are legislative and administrative problems and not judicial ones.

Quick revision

1. Six contemporary challenges: emergency and security powers; surveillance and data; the volume of delegated legislation; delay and the gap between right and remedy; dead law on the statute book; and automated decision-making.
2. After the Forty-fourth Amendment, Articles 20 and 21 cannot be suspended under Article 359.
3. Anuradha Bhasin, AIR 2020 SC 1308: publication, reasons, proportionality and periodic review; an indefinite internet suspension is impermissible.
4. Puttaswamy, AIR 2017 SC 4161: privacy is protected under Article 21 and Part III, so State data collection must satisfy legality, necessity and proportionality.
5. RTI section 8(1)(j) was substituted with effect from 13 November 2025 by the Digital Personal Data Protection Act 2023; section 8(2) survives.
6. Section 66A of the IT Act 2000 remained printed after being held unconstitutional and was omitted only by the Jan Vishwas Act 2023 with effect from 30 November 2023.
7. Automated decisions strain the requirements of reasons, of fairness and of a reviewable process.

Test yourself

1. Name six contemporary challenges to the rule of law in India. Emergency and security powers and the reach of review over them; surveillance and State data collection; the volume and obscurity of delegated legislation; delay and cost, which make a formally available remedy practically unavailable; the survival of provisions on the statute book after they have been held unconstitutional; and automated administrative decision-making.

2. What does Anuradha Bhasin require of an order restricting a fundamental right? That it be published so that it can be challenged; that it be reasoned; that it satisfy proportionality, meaning a legitimate goal, a rational connection, the least restrictive alternative and a fair balance; that it not suspend the internet indefinitely; and that it be reviewed periodically.

3. Why is dead law on the statute book a rule of law problem? Because publicity and certainty are elements of the rule of law, and a statute book which prints a provision that has been held unconstitutional misleads both the citizen and the official. A judicial declaration of invalidity does not remove the text, as section 66A of the Information Technology Act 2000 showed by remaining in print, with prosecutions continuing, until its omission by the Jan Vishwas Act 2023 with effect from 30 November 2023.

4. What is the single most important practical challenge, and why? Delay and cost. Judicial review exists for every administrative act, but a remedy that takes years and requires money is unavailable to the citizen most likely to suffer administrative illegality, so the right is formal and the absence is real. Article 39A and the Legal Services Authorities Act 1987 address it and have not closed the gap.

5. Give three difficulties automated decision-making creates for the rule of law. A decision must be explicable, and a system that produces a result without a reason cannot satisfy the requirement of recorded reasons; a person affected must be able to answer the case against them, which requires knowing what it is; and judicial review examines a decision-making process, which may not exist in a form a court can be shown when the process is a program.

The three claims inside the doctrine

Separating them is what allows a student to say precisely which claim a particular constitution accepts.

One: functional separation. The three functions are distinct in kind, and each should be exercised by its own organ.

Two: personnel separation. No person should be a member of more than one organ.

Three: no interference. No organ should control or encroach upon another.

How the three fare in practice. The first is broadly accepted everywhere, though the boundaries are contested. The second is rejected by every parliamentary system, in which ministers sit in the legislature. The third is nowhere absolute, and is replaced by checks and balances.

Checks and balances: the working substitute

Pure separation would produce three organs that could not restrain one another at all, which is not safety but paralysis. What every working constitution does instead is give each organ a limited share in the others' functions, precisely so that it can check them.

In the American design. The President vetoes legislation, the Senate confirms appointments and ratifies treaties, Congress may impeach, and the courts review the constitutionality of legislation and of executive action.

In the Indian design. The executive legislates by ordinance under Articles 123 and 213 and by delegated legislation; the legislature exercises judicial functions in punishing for contempt and in impeachment; the judiciary makes rules of court and exercises administrative control over subordinate courts; and the courts review both the other organs. Chapter [Where the Three Organs Overlap in India] lists them all.

The paradox worth stating in an answer: the doctrine is realised by departing from it. A rigid separation would leave each organ unchecked in its own sphere, which is the opposite of what Montesquieu wanted.

What the doctrine protects, in practice

Against retrospective punishment. A legislature that could try cases would punish people it had already decided were guilty. Article 20(1) and the rule in Indira Nehru Gandhi v. Raj Narain, AIR 1975 SC 2299, that the constituent power cannot exercise judicial power, are both this idea.

Against the judge in his own cause. An executive that judged disputes about its own acts would decide them for itself, which is why administrative adjudication must be reviewable.

Against government by decree. An executive that could make law without a legislature would need no legislature, which is why the limits on delegation in Module III matter.

A worked example

A State wishes to remove a particular contractor from public works because a project failed.

If the three powers were united, the same body would make a rule that a contractor whose project fails is disqualified, find as a fact that this contractor's project failed, and impose the disqualification. Nothing could be tested, because the maker of the rule, the finder of the fact and the imposer of the penalty are the same.

Under a separation of functions, the legislature enacts a general disqualification provision, an authority applies it to this contractor after notice and hearing, and a court decides whether the provision authorised what was done and whether the procedure was fair.

What the doctrine actually buys is visible in that comparison: not efficiency, which the first arrangement has more of, but the possibility of challenge.

What this does NOT mean

It does not mean the three organs are equal in every respect. In a parliamentary system the legislature and the executive are fused at the top by design.

It does not mean the judiciary is supreme. It decides legality, not policy, which is the restraint in Divisional Manager, Aravali Golf Club v. Chander Hass, (2008) 1 SCC 683.

It does not mean administrative agencies are unconstitutional. They combine functions, and Chapter [Separation of Powers in India] explains why that survives in India and is harder in the United States.

It does not mean Montesquieu described England correctly. He did not, and Chapter [Separation of Powers in the United Kingdom] says so.

Quick revision

1. The doctrine: the legislative, executive and judicial functions should be exercised by three separate organs, no organ exercising another's function and no person belonging to more than one.
2. Its purpose is liberty, not efficiency: the concentration of the three in the same hands is the definition of tyranny.
3. Lineage: Aristotle described three elements; Locke separated legislative, executive and federative; Montesquieu in 1748 gave the three-part form; the Federalist turned it into checks and balances.
4. Madison's formulation: give each department the constitutional means and personal motives to resist encroachment, so that ambition counteracts ambition.
5. Three claims inside the doctrine: functional separation, personnel separation, and non-interference. Every parliamentary system rejects the second.
6. Checks and balances are the working substitute, and they operate by giving each organ a limited share in the others' functions.
7. The paradox: the doctrine is realised by departing from it, because rigid separation leaves each organ unchecked in its own sphere.

Test yourself

1. State Montesquieu's argument in his own terms. That when the legislative and executive powers are united in the same person or body there can be no liberty, because the same monarch or senate may enact tyrannical laws and execute them tyrannically; and that there is no liberty if the judicial power is not separated from the legislative and the executive, because joined with the legislative the judge would be the legislator, and joined with the executive he might behave with violence and oppression.

2. Identify the three distinct claims inside the doctrine and say which is universally rejected. Functional separation, that each function should be exercised by its own organ; personnel separation, that no person should be a member of more than one organ; and non-interference, that no organ should control or encroach upon another. The second is rejected by every parliamentary system, in which ministers are members of the legislature.

3. What are checks and balances, and how do they relate to separation? They are limited shares given to each organ in the functions of the others, so that each can restrain the rest: the veto, confirmation of appointments, impeachment, and judicial review. They relate to separation as its working substitute, because a rigid separation would leave each organ unchecked within its own sphere, which is the opposite of the doctrine's purpose.

4. Give Madison's formulation and say what it concedes. That each department must be given the constitutional means and the personal motives to resist encroachment by the others, so that ambition is made to counteract ambition. It concedes that pure separation is unattainable, and shifts the doctrine from a rule about boundaries to a design about incentives.

5. What does the separation of powers actually buy a citizen? Illustrate. The possibility of challenge. Where one body makes the rule, finds the fact and imposes the penalty, nothing can be tested, because the maker of the rule and the judge of its application are the same. Where a legislature enacts a general provision, an authority applies it after notice and hearing, and a court decides whether the provision authorised the act and whether the procedure was fair, each step can be examined by somebody who did not take it.

Where flexibility stops: the core that cannot be usurped

Flexibility does not mean anything goes, and an answer must say what the limit is.

A legislature may not decide a case. Indira Nehru Gandhi v. Raj Narain, AIR 1975 SC 2299, struck down clause (4) of Article 329A on the ground that the nature of the constituent power is legislative and cannot be used to exercise judicial power, and that the Constitution may be amended to change constitutional provisions but the constituent power cannot enact that a particular person is declared elected.

A legislature may not simply nullify a judgment.

Facts. State of Tamil Nadu v. State of Kerala, AIR 2014 SC 2407, arose out of the Mullaperiyar dam. After the Supreme Court had held in 2006 that the dam was safe at a water level of 142 feet, Kerala enacted the Kerala Irrigation and Water Conservation (Amendment) Act 2006, fixing the level at 136 feet. Tamil Nadu sued under Article 131.

Held. A legislature may remove the basis of a judgment by validly changing the law, but it may not simply declare the judgment ineffective or set it aside; a naked legislative overruling of a judicial decision breaches the separation of powers, which is part of the basic structure. Section 108 and the Third Schedule of the Kerala Act were declared unconstitutional.

A legislature may not abolish judicial review. L. Chandra Kumar v. Union of India, AIR 1997 SC 1125.

And a court may not administer.

Facts. Divisional Manager, Aravali Golf Club v. Chander Hass, (2008) 1 SCC 683, concerned two workmen employed as tractor drivers who claimed regularisation against posts of malis, the courts below having effectively created posts for them.

Held. Judges must exercise restraint and not encroach into the executive or the legislative domain. The creation of a post is an executive and legislative function and not a judicial one, and judges must know their limits.

Why these matter here. Together they mark the core: the legislature may not decide cases, the executive may not be its own judge without review, and the judiciary may not administer. Everything else is negotiable.

The Indian statement of the flexible doctrine

Facts. Asif Hameed v. State of Jammu and Kashmir, AIR 1989 SC 1899, arose out of admissions to the two Government medical colleges in Jammu and Kashmir. The High Court had earlier directed the State to entrust selection to a statutory independent body, the State had issued orders constituting a Competent Authority, and the High Court then allowed writ petitions on the ground that the selection violated its own earlier directions, reiterating them by mandamus.

Held. Although the doctrine of separation of powers has not been recognised under the Constitution in its absolute rigidity, the Constitution makers have meticulously defined the functions of the various organs of the State. The legislature, the executive and the judiciary have to function within their own spheres demarcated under the Constitution, and no organ can usurp the functions assigned to another. The legislature and the executive, the two facets of the people's will, have all the powers including that of finance; the judiciary has no power over the sword or the purse, and yet has power to ensure that the other two organs function within constitutional limits.

Why it matters here. It is the sentence to quote for MU's question, because it states both halves at once: not absolute rigidity, and yet no usurpation.

What flexibility has meant for the administrative process

This is the second half of MU's 2026 question and it deserves a direct answer.

It made the administrative process constitutionally possible. Every delegated power, every tribunal and every regulator depends on the doctrine being functional rather than rigid.

It shifted the control from structure to process. If an executive body may adjudicate, the safeguard cannot be that it must not; it has to be that it must do so fairly, with reasons and subject to review. So natural justice, the duty to give reasons and judicial review became the real constraints, which is Modules III and IV.

It made judicial review indispensable. In a rigid system the boundary polices itself. In a flexible one somebody has to decide, case by case, whether a particular exercise has crossed into another organ's core, and only a court can do that.

What this does NOT mean

Flexibility is not the abandonment of the doctrine. The core survives, and three cases in this chapter show it being enforced.

It does not mean India has no separation. Article 50 states the preference, the functions are defined, and Asif Hameed says no organ may usurp another's.

It does not mean the American system is rigid in practice. Chapter [Separation of Powers in the United States] shows that it too runs on checks and balances.

It does not mean the courts decide how much flexibility there is at large. They decide whether a particular measure crosses a core, which is a narrower question.

A worked example

A single regulatory commission is created by statute. It makes regulations fixing tariffs, it decides disputes between a licensee and a consumer, and it employs its own investigating staff. A rigid separationist says the body is unconstitutional three times over. Work it through as an Indian court would.

It legislates. The regulations are delegated legislation, valid so long as the parent Act declares the policy and lays down a standard and the regulations stay within them. The objection is not that a non-legislature makes law; it is only whether the legislature parted with its essential legislative function.

It adjudicates. Deciding a dispute between named parties is judicial in nature, and the Constitution does not forbid a statutory body from doing it. What it requires is that the body observe natural justice, that it be independent enough for the task, and that its decisions remain open to judicial review.

It investigates and then decides. This is the real objection, and it is procedural rather than structural. The answer is separation of functions inside the body: the officer who investigates must not be the officer who decides, and a decision by a person who has already formed a view offends the rule against bias.

Where the line does fall. If the statute directed the commission to decide a named person's case in a stated way, or purported to reverse a judgment inter partes without altering the law, it would cross the line, because that is the exercise of judicial power by the legislature.

The lesson of flexibility. The question an Indian court asks is not which organ is acting, but whether the safeguards appropriate to the function are present.

Quick revision

1. Rigidity failed for five reasons: the welfare State, delegated legislation, administrative adjudication, parliamentary government, and the regulators.
2. The flexible doctrine: each organ has an exclusive core, may exercise incidental functions of the others, and the arrangement is policed by judicial review.
3. Asif Hameed, AIR 1989 SC 1899: not recognised in absolute rigidity, yet the functions are meticulously defined and no organ can usurp another's.
4. Indira Nehru Gandhi, AIR 1975 SC 2299: the constituent power is legislative and cannot exercise judicial power.
5. State of Tamil Nadu v. State of Kerala, AIR 2014 SC 2407: a legislature may remove the basis of a judgment but may not nakedly overrule it.
6. Aravali Golf Club, (2008) 1 SCC 683: a court may not create posts; judges must know their limits.
7. L. Chandra Kumar, AIR 1997 SC 1125: judicial review cannot be abolished.
8. Flexibility shifted the control from structure to process: fairness, reasons and review became the real constraints.

Test yourself

1. Give five reasons why rigid separation could not survive. The welfare State, which requires the executive to fix technical standards a legislature cannot; delegated legislation, which a rigid doctrine would forbid; administrative adjudication of millions of disputes that courts cannot absorb; parliamentary government, in which ministers sit in the legislature; and the regulators, which combine all three functions by design.

2. Quote the Indian statement of the flexible doctrine. That although the doctrine of separation of powers has not been recognised under the Constitution in its absolute rigidity, the Constitution makers have meticulously defined the functions of the various organs of the State, so that the legislature, the executive and the judiciary have to function within their own spheres and no organ can usurp the functions assigned to another: Asif Hameed v. State of Jammu and Kashmir, AIR 1989 SC 1899.

3. Name three things flexibility does not permit, with a case for each. A legislature deciding an individual case, on Indira Nehru Gandhi, AIR 1975 SC 2299; a legislature nullifying a judgment without changing the law on which it rested, on State of Tamil Nadu v. State of Kerala, AIR 2014 SC 2407; and a court exercising executive functions such as creating posts, on Aravali Golf Club, (2008) 1 SCC 683.

4. Distinguish removing the basis of a judgment from overruling it. Removing the basis means validly changing the law on which the judgment rested, so that the decision no longer applies to the altered legal position, which a legislature may do. Overruling means declaring the judgment itself ineffective or set aside while the law stands, which is the exercise of judicial power by a legislature and breaches the separation of powers.

5. How did flexibility change the way the administrative process is controlled? It shifted the control from structure to process. Since an executive body may lawfully make rules and adjudicate, the safeguard cannot be a prohibition on its doing so; it has to be that the rule stays within the parent Act, that the adjudication is fair and reasoned, and that both are reviewable. That is why natural justice, the duty to give reasons and judicial review became the real constraints, and why judicial review became indispensable rather than optional.

Why it matters here. It established judicial review of legislation in a constitution that does not mention it, and it is the source of the proposition that the courts, and not the political branches, say what the law is. That proposition returned in 2024 to end forty years of deference to administrative agencies.

The problem the doctrine creates: the administrative agency

An agency makes rules, enforces them and adjudicates under them. In a system with three exclusive vesting clauses that is a constitutional difficulty, and it is the American version of the question in Chapter [Rule-Making, Adjudication and Administrative Action].

The rule-making side: non-delegation. Congress may delegate provided it lays down an intelligible principle to guide the delegate. The doctrine has struck down federal statutes only twice, both in 1935, and has otherwise been applied permissively.

The adjudication side: separation inside the agency. The Administrative Procedure Act 1946 answers by separating functions internally: formal adjudication under sections 554 to 557 takes place before an administrative law judge insulated from the agency's prosecuting side.

The interpretation side: deference, and its end.

Facts. Chevron U.S.A. Inc. v. Natural Resources Defense Council Inc., 467 U.S. 837 (1984), concerned Environmental Protection Agency regulations under the Clean Air Act Amendments of 1977 permitting a State to adopt a plantwide definition of stationary source, the bubble concept.

Held. The regulations were upheld, and the Court laid down two steps. First, always, whether Congress has directly spoken to the precise question at issue; if the intent of Congress is clear, that is the end of the matter and the court and the agency must give it effect. If Congress has not directly addressed the precise question, the court does not simply impose its own construction but asks whether the agency's answer is based on a permissible construction of the statute.

Facts. Loper Bright Enterprises v. Raimondo, decided on 28 June 2024, concerned a rule of the National Marine Fisheries Service under the Magnuson-Stevens Act requiring herring vessels to pay for observers carried on board. Certiorari was granted on the single question whether Chevron should be overruled or clarified.

Held on Chevron. Chevron is overruled. The Administrative Procedure Act requires courts to exercise their independent judgment in deciding whether an agency has acted within its statutory authority, and courts may not defer to an agency's interpretation of the law simply because a statute is ambiguous. The Court rested this on Article III and on Marbury, quoting Marshall that it is emphatically the province and duty of the judicial department to say what the law is.

Why it matters here. It is separation of powers doing real work in 2024: the judicial power to interpret law was held to be non-transferable to the executive, and a doctrine that had governed American administrative law for forty years fell with it.

The comparison MU asks for

What this does NOT mean

American separation is not absolute in practice. The President legislates in substance through agencies, and Congress adjudicates in impeachment.

Judicial review is not in the text. It was established by the Court itself in 1803.

Non-delegation is not a real constraint in modern practice. It has felled a federal statute only twice, in 1935.

Loper Bright did not abolish deference altogether. Deference to an agency's findings of fact and to its policy choices survives; what ended is deference on the meaning of a statute.

A worked example

The President, without any Act of Congress, directs a federal agency to seize and operate the country's steel mills because a strike threatens supplies to an army in the field. Apply the American scheme.

Is there a statute? No. Congress had considered and declined to authorise seizure. That matters, and it is the reason the answer is not simply that emergencies justify action.

Which power is being exercised? Taking private property and directing its operation is lawmaking in substance. The Constitution vests legislative power in Congress, and the President's duty is to take care that the laws be faithfully executed, not to make them.

What are the President's own sources? The executive power and the office of Commander in Chief. Neither extends to the seizure of domestic industry, since the theatre of war is not the entire economy.

Where does Congress's declining to act leave him? At his weakest. Where the President acts against the expressed or implied will of Congress, he may rely only on his own constitutional powers minus whatever Congress may constitutionally do in the field.

How is it decided? By the courts, on Marbury, since it is emphatically the province and duty of the judicial department to say what the law is.

Contrast with India. An Indian government facing the same crisis would act under a statute, most probably the Essential Commodities Act 1955, and the question would be whether the order was within the Act, not whether the executive may legislate at all. That is the difference between strict and functional separation.

Quick revision

1. Articles I, II and III vest the legislative, executive and judicial powers in separate branches, with separate personnel and separate tenure.
2. Checks and balances: the veto, the override, appropriations, confirmation, ratification, oversight, impeachment, and judicial review.
3. Marbury v. Madison, 5 U.S. 137 (1803): an act of the legislature repugnant to the Constitution is void, and it is emphatically the province and duty of the judicial department to say what the law is.
4. The agency is the constitutional difficulty, because it exercises all three powers.
5. Non-delegation is policed by the intelligible principle test and has struck down a federal statute only twice, both in 1935.
6. The Administrative Procedure Act 1946 separates investigating and deciding inside the agency, in formal adjudication under sections 554 to 557.
7. Chevron, 467 U.S. 837 (1984): two steps, clear congressional intent, then permissible agency construction.
8. Loper Bright, decided on 28 June 2024: Chevron overruled; courts must exercise independent judgment on statutory authority.

Test yourself

1. What makes the American separation rigid, in four respects? Three exclusive vesting clauses, one for each branch; separate personnel, since a member of Congress may not hold executive office and the President does not sit in Congress; separate tenure, the President's term not depending on congressional confidence and Congress not being dissoluble by the President; and an insulated judiciary holding office during good behaviour with salaries that may not be reduced.

2. State the holding in Marbury v. Madison and its significance. That Marbury had a right to his commission and mandamus was in principle the remedy, but that the provision of the Judiciary Act 1789 purporting to give the Supreme Court original jurisdiction to issue it was repugnant to Article III and void; that an act of the legislature repugnant to the Constitution is void; and that it is emphatically the province and duty of the judicial department to say what the law is. Its significance is that it established judicial review of legislation in a constitution that nowhere provides for it.

3. Why is the administrative agency a constitutional problem in the United States, and how is it managed? Because an agency makes rules, enforces them and adjudicates under them, exercising all three of the powers that Articles I, II and III vest separately. It is managed by the non-delegation doctrine, which requires Congress to lay down an intelligible principle; by the separation of investigating and deciding functions inside the agency under the Administrative Procedure Act 1946; and by judicial review under sections 701 to 706.

4. Trace what happened to deference between 1984 and 2024. Chevron, 467 U.S. 837 (1984), required a court to accept any permissible agency construction of an ambiguous statute the agency administers. Loper Bright, decided on 28 June 2024, overruled it, holding that the Administrative Procedure Act requires courts to exercise independent judgment on whether an agency has acted within its statutory authority and that they may not defer merely because a statute is ambiguous, resting the conclusion on Article III and on Marbury.

5. Give three differences between the American and the Indian positions on separation. The American Constitution has three exclusive vesting clauses while India defines functions and states separation only as a Directive Principle in Article 50; American personnel are strictly separate while Indian ministers sit in the legislature; and the American executive holds a fixed term independent of the legislature while an Indian government depends on the confidence of the House.

What changed in 2005 and 2007

The Constitutional Reform Act 2005 did three things. It reformed the office of Lord Chancellor, who ceased to be head of the judiciary and to sit as a judge, the Lord Chief Justice becoming head of the judiciary of England and Wales. It created the Supreme Court of the United Kingdom, which began work in 2009, so that the highest court is no longer a committee of the upper House. And it created a Judicial Appointments Commission, taking selection out of the hands of a minister.

The Tribunals, Courts and Enforcement Act 2007 unified the tribunals into a First-tier Tribunal and an Upper Tribunal with judicial office holders and an appeal on a point of law, which is the fullest answer given anywhere to the Franks Committee's standard of openness, fairness and impartiality.

The point to make in an answer is that these reforms moved the United Kingdom towards separation at exactly the period when India and the United States were debating how much flexibility their own rigid schemes could bear. The two systems have been converging.

How control is achieved without separation

If Parliament is sovereign and the executive is inside it, what protects the citizen? Four things, and they are the English answer to MU's question.

Judicial review of executive action. No court may strike down an Act, but every court may quash an act done under an Act. That is the whole of English administrative law, and the grounds are those in Council of Civil Service Unions v. Minister for the Civil Service, 1988 AC 858, as Indian courts cite it: illegality, irrationality and procedural impropriety.

The ultra vires principle. A power conferred by statute may be used only for the purposes of the statute, which is Padfield v. Minister of Agriculture, Fisheries and Food, [1968] AC 997, and its limits are jurisdictional, which is Anisminic Ltd v. Foreign Compensation Commission, [1969] 2 AC 147.

Natural justice. Ridge v. Baldwin, [1964] AC 40, and Chapter [The Growth of Administrative Law in England].

Political accountability. Ministerial responsibility to the House, which works better in the United Kingdom than in India because the convention of resignation has real instances behind it.

The comparison in one table

A worked example

A minister makes an order under a statute closing a class of premises, and a citizen objects.

In the United States. The citizen may argue that the statute itself violates the Constitution, that the delegation lacked an intelligible principle, and that the order fails section 706 of the Administrative Procedure Act 1946.

In the United Kingdom. The citizen may not challenge the Act. He may argue that the order is outside the Act, that it was made for a purpose the Act does not authorise, that relevant considerations were ignored, that it is irrational, or that the procedure was unfair. If a Convention right is engaged he may seek a declaration of incompatibility, which does not invalidate the Act.

In India. The citizen may do everything an English litigant may do, and in addition challenge the Act itself under Articles 13, 14, 19 and 21, and reach the court by Article 226 or Article 32.

That comparison is MU's question answered. Strict separation is not what protects the English citizen; judicial review of executive action is.

What this does NOT mean

It does not mean the United Kingdom has no constitution. It has one; it is not in a single document.

It does not mean Parliament can do anything in practice. Political constraint, the Human Rights Act 1998 and international obligations all operate, and the courts read statutes so as to preserve fundamental rights unless the words are unmistakable.

It does not mean the fusion is accidental. Responsible government requires that the executive sit in and answer to the legislature, which is a deliberate design choice and not a failure of the doctrine.

It does not mean India copied the United Kingdom. India took parliamentary government from Westminster and judicial review from the United States, which is why its position is between the two.

Quick revision

1. No written constitution, no formal separation, and parliamentary sovereignty, so no court may set aside an Act.
2. The Human Rights Act 1998 permits a declaration of incompatibility, which does not affect validity or enforcement.
3. Judicial independence dates from the Act of Settlement 1701; the Bill of Rights 1689 keeps the courts out of proceedings in Parliament.
4. The Crown Proceedings Act 1947 made the Crown suable, which is when Dicey's second meaning became true in England.
5. The Constitutional Reform Act 2005 reformed the Lord Chancellor's office, created the Supreme Court which began work in 2009, and created a Judicial Appointments Commission.
6. The Tribunals, Courts and Enforcement Act 2007 unified the tribunals under the Franks standard.
7. Control without separation is achieved by judicial review of executive action, the ultra vires principle, natural justice and ministerial responsibility.
8. The English grounds of review are illegality, irrationality and procedural impropriety, from the GCHQ case as Indian courts cite it at 1988 AC 858.

Test yourself

1. In what four respects are the powers fused in the United Kingdom? The executive is drawn from and sits in the legislature and depends on its confidence; Parliament is sovereign so no court may invalidate an Act; the highest court was until 2009 a committee of the upper House; and the Lord Chancellor was until 2005 simultaneously a Cabinet minister, Speaker of the House of Lords and head of the judiciary.

2. What did the Constitutional Reform Act 2005 change? It reformed the office of Lord Chancellor, who ceased to be head of the judiciary and to sit as a judge, the Lord Chief Justice taking that role; it created the Supreme Court of the United Kingdom, which began work in 2009 and removed the highest court from the legislature; and it created a Judicial Appointments Commission, taking selection out of a minister's hands.

3. Can an English court strike down an Act of Parliament? What can it do instead? No. Under parliamentary sovereignty no court may hold an Act invalid. Under the Human Rights Act 1998 a court may make a declaration of incompatibility, which does not affect the validity, continuing operation or enforcement of the provision and leaves the remedy to Parliament.

4. If separation does not protect the English citizen, what does? Judicial review of executive action, since no court may strike down an Act but every court may quash an act done under one; the ultra vires principle, that a statutory power may be used only for the purposes of the statute; natural justice; and political accountability through ministerial responsibility to the House.

5. Why is the United Kingdom the hardest case for the doctrine? Because it has the least formal separation of any developed system and a long record of protecting liberty, which suggests that what matters is not the structural division of the three functions but the independence of the judiciary and the availability of review of executive action.

Why it matters here. It settles that the Indian executive is not merely a law-applying organ, which is the first departure from a rigid separation, and it is the case to cite when asked how far the executive may act without legislation.

Facts. Asif Hameed v. State of Jammu and Kashmir, AIR 1989 SC 1899, arose out of admissions to the two Government medical colleges of Jammu and Kashmir. The High Court, having earlier directed the State to entrust selection to an independent body, allowed writ petitions and reiterated its directions by mandamus, prescribing how marks were to be allotted and the merit list prepared.

Held. Although the doctrine of separation of powers has not been recognised under the Constitution in its absolute rigidity, the Constitution makers have meticulously defined the functions of the various organs of the State; the legislature, the executive and the judiciary have to function within their own spheres demarcated under the Constitution, and no organ can usurp the functions assigned to another. The legislature and the executive have all the powers including that of finance; the judiciary has no power over the sword or the purse and yet has power to ensure that the other two function within constitutional limits. The High Court had gone beyond its province in prescribing the selection method.

Why it matters here. It is the sentence to quote, and it states both halves of the Indian position in one breath.

The examples MU asks for

An answer to the 2019 question needs concrete instances of crossing, and they fall into three groups.

The executive exercising legislative functions. Ordinances under Articles 123 and 213, which are law while they last. Delegated legislation, which is Module III entire. Rules under the proviso to Article 309, made by the President or a Governor.

The legislature exercising judicial and executive functions. Punishment for contempt of the House, and the immunity of proceedings under Articles 105 and 194. Impeachment of the President under Article 61 and removal of judges under Article 124(4). Approval of a Proclamation of Emergency, and the disqualification machinery.

The judiciary exercising legislative and executive functions. Rule-making for the courts under Articles 145 and 227. Administrative superintendence over subordinate courts under Article 235. Directions filling a legislative gap until Parliament legislates, of which Vineet Narain v. Union of India, AIR 1998 SC 889, is the standing example: the Court directed statutory status for the Central Vigilance Commission and a fixed tenure for the Director of the Central Bureau of Investigation, the directions to hold the field until Parliament acted, and Parliament afterwards enacted the Central Vigilance Commission Act 2003.

The critical analysis

MU asks for a critical analysis, and criticism means identifying what the Indian arrangement costs.

The fusion of the executive and the legislature is nearly total. A government with a majority controls the House that is supposed to check it, so the legislative check on the executive is weaker in India than in the United States. Chapter [Responsibility and Accountability of Administrators] records the consequence.

Delegated legislation has grown beyond the capacity to scrutinise it. Chapter [The Committee on Subordinate Legislation] records how thin the parliamentary check actually is.

Judicial directions can shade into administration. Vineet Narain is admired; the same technique in less careful hands is what Divisional Manager, Aravali Golf Club v. Chander Hass, (2008) 1 SCC 683, warns against, holding that judges must exercise restraint and that the creation of a post is not a judicial function.

And the limit is not defined in advance. Because the doctrine is functional, whether a crossing is permissible is decided case by case by a court, which means the boundary is knowable only after litigation. That is the price of flexibility, and it is a real one.

What this does NOT mean

It does not mean India has no separation. It has functional separation with an enforceable core, which the next chapter shows being enforced against constitutional amendments.

It does not mean Article 50 is useless. It is the constitutional preference, and it is why the criminal courts were separated from the executive magistracy under the Code of Criminal Procedure 1973.

It does not mean an organ may do anything not expressly forbidden. Asif Hameed forbids usurping the functions assigned to another organ.

It does not mean the Indian position is a compromise between the American and the English. It is a distinct design: parliamentary government from Westminster, judicial review from the United States, and a written limit on the amending power that neither has.

A worked example

A State legislature passes an Act providing that the appointments made to a particular corporation between two dates are declared valid notwithstanding any judgment of any court, and that the writ petitions pending against them shall abate. Is it good?

Identify the function. Declaring appointments valid notwithstanding a judgment, and abating pending proceedings, is deciding the very disputes before the court. That is judicial power.

Ask the Indian question. India has no rigid separation, so the objection is not that a legislature has acted at all. The question is whether it has exercised judicial power over identified parties, which is the one crossing Indian law does not permit.

Apply the validating-Act test. A legislature may retrospectively remove the basis on which a judgment rested, by amending the law with effect from an earlier date, and the judgment then no longer applies. It may not simply declare the judgment ineffective and leave the law as it was.

So the answer splits. If the Act cures the defect the court found, for instance by supplying the rule-making power that was missing, it is valid, and the earlier judgment falls with its foundation. If the Act only declares the appointments good and abates the petitions, it is a legislative judgment and it is void.

Say the rule in one sentence. The legislature may change the law, including retrospectively; it may not decide the case.

Quick revision

1. No exclusive vesting clauses; Article 50 is a Directive Principle and unenforceable.
2. Personnel are fused at the top by Articles 74, 75, 163 and 164.
3. The judiciary is separated in substance by the appointment, tenure and removal provisions and by Articles 121, 122, 211 and 212.
4. Ram Jawaya Kapur, AIR 1955 SC 549: executive power extends to every matter on which the legislature may legislate and is not confined to executing existing laws.
5. Asif Hameed, AIR 1989 SC 1899: not absolute rigidity, functions meticulously defined, no organ may usurp another's.
6. Executive exercising legislative power: Articles 123 and 213, delegated legislation, rules under the proviso to Article 309.
7. Legislature exercising judicial power: contempt, impeachment, removal of judges.
8. Judiciary exercising legislative and executive power: Articles 145, 227 and 235, and directions until Parliament legislates, as in Vineet Narain, AIR 1998 SC 889.
9. Criticisms: near total fusion of executive and legislature, unscrutinised delegated legislation, judicial directions shading into administration, and a boundary knowable only after litigation.

Test yourself

1. Does the Indian Constitution adopt the separation of powers? Answer precisely. Not in its absolute rigidity. There are no exclusive vesting clauses, Article 50 is a Directive Principle and unenforceable, and the executive is drawn from the legislature. What the Constitution does is define the functions of each organ and forbid one organ from usurping the functions assigned to another, a limit enforced by judicial review and reinforced by the basic structure doctrine.

2. State the holding in Ram Jawaya Kapur and its significance for the doctrine. That the executive power is not confined to executing laws already made, that Articles 73 and 162 distribute executive power rather than define it, and that a State executive may act on any matter on which the State legislature is competent to legislate provided it does not encroach on rights or spend unauthorised money. Its significance is that the Indian executive is not merely a law-applying organ, which is the first departure from a rigid separation.

3. Give two examples in each direction of one organ exercising another's function. The executive exercising legislative power: ordinances under Articles 123 and 213, and delegated legislation. The legislature exercising judicial power: punishment for contempt of the House, and the removal of a judge under Article 124(4). The judiciary exercising legislative or executive power: rule-making under Articles 145 and 227, and directions holding the field until Parliament legislates, as in Vineet Narain, AIR 1998 SC 889.

4. Give three criticisms of the Indian arrangement. That the fusion of the executive and the legislature is nearly total, so a government with a majority controls the House meant to check it; that delegated legislation has grown beyond the capacity of parliamentary scrutiny; and that because the doctrine is functional the permissible limit of a crossing is decided case by case and is therefore knowable only after litigation.

5. Quote the sentence that best states the Indian position. That although the doctrine of separation of powers has not been recognised under the Constitution in its absolute rigidity, the Constitution makers have meticulously defined the functions of the various organs of the State, so that the legislature, the executive and the judiciary have to function within their own spheres demarcated under the Constitution and no organ can usurp the functions assigned to another: Asif Hameed v. State of Jammu and Kashmir, AIR 1989 SC 1899.

Held. Those clauses and section 28 and every similar exclusion clause are unconstitutional to the extent that they exclude the jurisdiction of the High Courts under Articles 226 and 227 and of the Supreme Court under Article 32. That jurisdiction is part of the inviolable basic structure. Tribunals may perform a supplemental role and may test the constitutional validity of statutory provisions and rules, but all their decisions are subject to scrutiny before a Division Bench of the High Court within whose jurisdiction the tribunal falls.

Why it matters here. The check that the judiciary exercises over the other two organs cannot be legislated away, not even by constitutional amendment, because the power of review is itself part of the structure.

Application three: a legislature may not nullify a judgment

Facts. State of Tamil Nadu v. State of Kerala, AIR 2014 SC 2407. After the Supreme Court had held in 2006 that the Mullaperiyar dam was safe at a water level of 142 feet, Kerala enacted the Kerala Irrigation and Water Conservation (Amendment) Act 2006 fixing the level at 136 feet. Tamil Nadu sued under Article 131.

Held. The Kerala Amendment Act 2006 was declared unconstitutional in its application to and effect on the Mullaperiyar dam, and Kerala was restrained by a decree of permanent injunction from applying or enforcing it or from obstructing Tamil Nadu from raising the level to 142 feet and carrying out repairs. A legislature may remove the basis of a judgment by validly changing the law, but the effect of a judgment enforcing a legal right is that the right is incorporated as a right under the judgment, and such a right cannot be overridden by a legislature, since that amounts to overriding a judgment.

Why it matters here. It draws the line an examiner most often asks about: between changing the law, which a legislature may do, and setting aside a decision, which it may not.

Application four: the independence of the judiciary in appointments

Facts. Supreme Court Advocates-on-Record Association v. Union of India (NJAC), decided on 16 October 2015, challenged the Constitution (Ninety-ninth Amendment) Act 2014 and the National Judicial Appointments Commission Act 2014, both in force from 13 April 2015, which replaced the collegium with a Commission whose members under Article 124A(1) included the Union Minister in charge of Law and Justice and two eminent persons.

Held. Clauses (a) to (d) of Article 124A(1) were struck down, the inclusion of the Union Minister impinging on the independence of the judiciary and on the separation of powers, and the inclusion of two eminent persons being ultra vires and violative of the basic structure. With Article 124A(1) struck down, the whole Constitution (Ninety-ninth Amendment) Act 2014 was set aside as ultra vires, and the National Judicial Appointments Commission Act 2014 was declared unconstitutional, both as conferring arbitrary and uncharted powers contrary to Article 14 and as unable to stand without the Amendment. The collegium system revived.

Why it matters here. It is the most recent and the most contested application, because the Amendment had been passed by the special majorities Article 368 requires and ratified by the States, so the decision sets aside an act of the constituent power on the ground that it altered the balance between two organs.

The limits of the doctrine, stated fairly

It does not freeze the machinery. Parliament may create tribunals, transfer jurisdiction, alter appellate structures and reorganise the administration, and has done all of these without difficulty.

It bites only on destruction. The test is whether an essential feature is damaged or destroyed, not whether the arrangement has changed.

And it is genuinely counter-majoritarian. In the NJAC case an unelected court set aside an amendment passed by both Houses by the required majorities and ratified by half the States. Whether that is the doctrine working or the doctrine overreaching is a live argument, and an LL.M. answer should present it as one.

A worked example

Parliament amends the Constitution to provide that the Chief Justice of India shall be appointed by the President on the advice of the Council of Ministers alone, that no court shall have jurisdiction over the appointment, and that the Supreme Court shall have no power to review any law relating to the administration of justice.

First, is it an amendment or an ordinary law? An amendment, so it is tested against basic structure and not directly against Part III.

Second, identify the features engaged. Independence of the judiciary, judicial review, and separation of powers, each of which the Supreme Court has held to be basic.

Third, ask damage or destruction, not effect. Every amendment affects something. The question is whether these clauses destroy the feature. Removing judicial primacy in the appointment of the head of the judiciary, and then removing judicial review of the appointment, leaves no institutional check at all, which is destruction and not adjustment.

Fourth, the ouster of review. Excluding the Supreme Court's power to review a class of laws is the clearest case, since judicial review is itself a basic feature and L. Chandra Kumar holds that the power under Articles 32 and 226 cannot be excluded.

Fifth, what would survive. A clause altering the composition of a collegium, or the number of consultees, or the procedure of consultation, would be an adjustment of machinery and would stand.

The trap. Answering that the amendment is bad because it violates Article 50 or Article 14. Directive principles are not enforceable, and an amendment is not tested against Part III directly. The test is basic structure.

Quick revision

1. Kesavananda, AIR 1973 SC 1461: the separation of powers is among the essential features of the basic structure.
2. Indira Nehru Gandhi, AIR 1975 SC 2299: the constituent power is legislative and cannot exercise judicial power; Article 329A(4) struck down.
3. L. Chandra Kumar, AIR 1997 SC 1125: judicial review by the High Courts and the Supreme Court is part of the inviolable basic structure and cannot be excluded.
4. State of Tamil Nadu v. State of Kerala, AIR 2014 SC 2407: a legislature may remove the basis of a judgment but may not override the judgment itself.
5. The NJAC decision of 16 October 2015 struck down the Ninety-ninth Amendment and the NJAC Act for impinging on the independence of the judiciary and the separation of powers.
6. The doctrine does not freeze the machinery; it bites only where an essential feature is damaged or destroyed.
7. It is counter-majoritarian, and the argument about that is live.

Test yourself

1. Name four decisions applying the separation of powers as part of the basic structure, and say what each struck down. Indira Nehru Gandhi, AIR 1975 SC 2299, striking down clause (4) of Article 329A; L. Chandra Kumar, AIR 1997 SC 1125, striking down the exclusion clauses in Articles 323A(2)(d) and 323B(3)(d) and section 28 of the Administrative Tribunals Act 1985 so far as they excluded Articles 226, 227 and 32; State of Tamil Nadu v. State of Kerala, AIR 2014 SC 2407, declaring the Kerala Amendment Act 2006 unconstitutional in its application to the Mullaperiyar dam; and the NJAC decision of 16 October 2015, setting aside the Constitution (Ninety-ninth Amendment) Act 2014 and the NJAC Act 2014.

2. What is the difference between removing the basis of a judgment and overruling it? Removing the basis means validly amending the law on which the judgment rested, so that the decision no longer governs the altered legal position; a legislature may do this. Overruling means declaring the judgment ineffective or set aside while leaving the law as it was, which is the exercise of judicial power by a legislature and offends the separation of powers.

3. Why could the exclusion clauses in Articles 323A and 323B not stand? Because the jurisdiction conferred on the High Courts by Articles 226 and 227 and on the Supreme Court by Article 32 is part of the inviolable basic structure, so it cannot be excluded even by a provision inserted into the Constitution itself. Tribunals may act as courts of first instance and may test the vires of statutory provisions and rules, but their decisions remain subject to scrutiny by a Division Bench of the High Court.

4. Why is the NJAC decision the most contested application of the doctrine? Because the Constitution (Ninety-ninth Amendment) Act 2014 was passed by the special majorities Article 368 requires and ratified by half the States, so the Court set aside an act of the constituent power itself, on the ground that the composition of the Commission, and in particular the inclusion of the Union Minister and of two eminent persons, impinged on the independence of the judiciary and on the separation of powers.

5. What does the doctrine NOT prevent? It does not prevent Parliament from creating tribunals, transferring jurisdiction between forums, altering appellate structures or reorganising the administration. It bites only where an essential feature is damaged or destroyed, not wherever the existing arrangement is changed.

The legislature exercising judicial functions

Impeachment of the President under Article 61, where a House investigates a charge and the other House decides it.

Removal of a judge under Article 124(4), on an address of each House supported by the prescribed majorities, on the ground of proved misbehaviour or incapacity, and Article 217(3) for the age of a High Court judge, decided by the President after consulting the Chief Justice of India.

Contempt of the House. Articles 105 and 194 give each House the power to punish for its own contempt, which is a judicial function exercised without a court.

Disqualification proceedings under the Tenth Schedule, decided by the presiding officer of the House.

The judiciary exercising legislative functions

Rules of court. Article 145 empowers the Supreme Court, with the approval of the President, to make rules regulating its practice and procedure, and Article 227(2) empowers a High Court to make and issue general rules and prescribe forms for regulating the practice and proceedings of courts and tribunals subject to its superintendence.

Contempt. Articles 129 and 215 make the Supreme Court and every High Court courts of record with power to punish for contempt of themselves.

Directions filling a gap. Where no law exists, the Court has issued directions to hold the field until the legislature acts, of which Vineet Narain v. Union of India, AIR 1998 SC 889, is the standing example: it directed statutory status for the Central Vigilance Commission and a fixed minimum tenure for the Director of the Central Bureau of Investigation, and the Central Vigilance Commission Act 2003 followed.

The judiciary exercising executive functions

Control over subordinate courts. Article 235 vests in the High Court the control over district courts and courts subordinate to them, including the posting, promotion and grant of leave of persons belonging to the judicial service. That is administration, performed by a court.

Appointment of court staff, and the administrative side of every High Court.

Advisory opinions. Article 143 allows the President to refer a question of law or fact of public importance to the Supreme Court for its opinion, which is not the decision of a lis and is closer to advice to the executive.

The whole thing in one table

A worked example

Trace one measure through all three organs.

Parliament enacts an Act empowering the Central Government to regulate an industry.

The President promulgates an ordinance under Article 123 amending it while the Houses are not sitting, and the Houses later approve it.

The Central Government makes rules under the Act, which is legislative in character.

An officer decides an individual licence application under those rules, which is quasi-judicial.

A tribunal constituted under a statute hears the appeal.

A High Court exercises superintendence over that tribunal under Article 227, having earlier made the rules of procedure that govern its own proceedings under Article 227(2).

And Parliament may, if it disagrees with the result, amend the Act, but may not by amendment declare the particular decision void, on State of Tamil Nadu v. State of Kerala, AIR 2014 SC 2407.

What this does NOT mean

The overlaps are not defects. They are the design, and they are what makes checks and balances possible.

They are not unlimited. Asif Hameed v. State of Jammu and Kashmir, AIR 1989 SC 1899: no organ may usurp the functions assigned to another.

They are not immune from review. An ordinance, a rule, an adjudication and a tribunal decision are all reviewable.

The list is not exhaustive. It is a working list for an examination, and a student who can produce six of these examples with their Articles has answered MU's question.

Quick revision

1. Executive exercising legislative power: Articles 123 and 213 ordinances; delegated legislation; rules under the proviso to Article 309.
2. Executive exercising judicial power: pardon under Articles 72 and 161; administrative adjudication; tribunals under Articles 323A and 323B.
3. Legislature exercising executive power: approval of Proclamations under Articles 352 and 356; appropriation and financial sanction; assent and reservation under Articles 111, 200 and 201.
4. Legislature exercising judicial power: impeachment under Article 61; removal of judges under Article 124(4) and Article 217(3); contempt under Articles 105 and 194; Tenth Schedule disqualification.
5. Judiciary exercising legislative power: Articles 145 and 227(2); contempt under Articles 129 and 215; directions until Parliament legislates, as in Vineet Narain, AIR 1998 SC 889.
6. Judiciary exercising executive power: control of subordinate courts under Article 235; advisory opinions under Article 143.
7. The limit is Asif Hameed, AIR 1989 SC 1899: no organ may usurp another's functions.

Test yourself

1. Give three provisions under which the executive exercises legislative power. Article 123, empowering the President to promulgate an ordinance having the same force and effect as an Act of Parliament when both Houses are not in session; Article 213, the corresponding power of a Governor; and the proviso to Article 309, empowering the President or a Governor to make rules regulating recruitment and conditions of service until the legislature provides otherwise.

2. Under which Articles does the legislature exercise judicial power? Article 61, impeachment of the President; Article 124(4), removal of a judge of the Supreme Court on an address of each House on the ground of proved misbehaviour or incapacity; Articles 105 and 194, the power of each House to punish for its own contempt; and the Tenth Schedule, under which disqualification is decided by the presiding officer.

3. Give two examples of the judiciary exercising executive functions. Article 235, which vests in the High Court the control over district courts and courts subordinate to them, including posting, promotion and leave of members of the judicial service; and Article 143, under which the Supreme Court gives an advisory opinion on a reference by the President, which is not the decision of a dispute but advice to the executive.

4. Is the pardon a judicial function? Which Articles confer it? It is a judicial function in substance, since it alters the effect of a sentence passed by a court, but it is conferred on the executive: Article 72 on the President and Article 161 on the Governor, comprising pardons, reprieves, respites and remissions and the power to suspend, remit or commute a sentence.

5. Are the overlaps defects in the Indian scheme? Justify your answer. No. They are the design, and they are what makes checks and balances possible: an organ cannot restrain another unless it has some share in the other's function. They are limited, in that no organ may usurp the functions assigned to another, on Asif Hameed v. State of Jammu and Kashmir, AIR 1989 SC 1899, and every exercise of them remains subject to judicial review.

It is prospective. It regulates future conduct.

It is normative. It creates rights, duties or disabilities, rather than applying existing ones to a case.

An instrument satisfying those three is legislative in character, whatever it is called, and the consequence is the one in Chapter [Classification of Administrative Action]: no hearing is owed, on Union of India v. Cynamide India Ltd, AIR 1987 SC 1802.

Where the power comes from, and what limits it

The parent Act. Every rule must be traceable to a section conferring the power, and a rule that has no such source is void whatever its merits.

The Constitution. Article 13(3)(a) makes rules, regulations, bye-laws and notifications law for the purpose of Part III, so a rule that abridges a fundamental right is void under Article 13(2) exactly as an Act would be.

The General Clauses Act 1897. Section 21 provides that a power to issue notifications, orders, rules or bye-laws includes a power to add to, amend, vary or rescind them, exercisable in the like manner and subject to the like sanction and conditions. Those last words are the part students forget: the amending power must follow the same procedure as the original.

Section 24 continues a rule made under a repealed Act under the re-enacted Act, so far as it is not inconsistent, which is why colonial rules still operate under modern statutes.

Delegated legislation and an Act compared

Row three is the whole of Chapter [Judicial Control: Substantive Ultra Vires] in a line: subordinate legislation may be attacked on grounds on which plenary legislation may not, and Indian Express Newspapers (Bombay) Pvt Ltd v. Union of India, AIR 1986 SC 515, says so.

Facts. Customs duty was imposed on imported newsprint by notification after years of exemption. Newspaper publishers challenged it as an interference with the freedom of the press and as an unreasonable exercise of subordinate legislative power.

Held. Freedom of the press is part of Article 19(1)(a) and cannot be restricted in the name of public interest outside Article 19(2). Subordinate legislation is open to challenge on grounds on which plenary legislation is not, including that it is arbitrary or unreasonable or contrary to the parent statute, and the Court directed the Government to reconsider the levy.

Why it matters here. It is the authority for the single most important structural difference between a rule and an Act.

A worked example

Section 3 of the Essential Commodities Act 1955 empowers the Central Government to make an order regulating the production, supply and distribution of an essential commodity.

The Act is made by Parliament under Article 246 read with the Concurrent List.

The Order is made by the Central Government under section 3. It is delegated legislation: general, prospective and normative.

A notification under the Order fixes a maximum price for a particular drug. It is also legislative, on Cynamide, because it fixes a figure for a class.

A demand on one manufacturer to sell its stock to the Government under section 3(2)(f) is an individual administrative act, and fairness attaches to it.

And section 21 of the General Clauses Act 1897 means the Government may vary or rescind the Order, in the same manner and subject to the same conditions as it made it, which includes any requirement of previous publication.

What beginners get wrong

Thinking the name decides. It does not. Substance governs.

Thinking an ordinance is delegated legislation. It is not; the power is constitutional and its force is that of an Act.

Thinking a rule cannot be challenged because it is law. It can, and on wider grounds than an Act.

Thinking a rule takes effect when made. It takes effect when published, which is Chapter [Publication, and the Rule That an Unpublished Rule Binds Nobody].

Thinking section 21 lets an authority undo anything informally. The power to amend or rescind must be exercised in the like manner and subject to the like conditions as the power to make.

Quick revision

1. Delegated legislation is the exercise by a subordinate authority of legislative power conferred by the legislature.
2. Its usual names: rule, regulation, bye-law, notification, order, scheme. The name is not decisive.
3. An ordinance under Article 123 or 213 is NOT delegated legislation; its power is constitutional and its force is that of an Act.
4. Rules under the proviso to Article 309 draw their force from the Constitution and yield only to an Act.
5. It is legislative if it is general, prospective and normative, and then no hearing is owed: Cynamide, AIR 1987 SC 1802.
6. Article 13(3)(a) makes it law for the purposes of Part III.
7. General Clauses Act 1897, section 3(51) defines a rule; section 21 gives the power to amend, vary or rescind in the like manner and subject to the like conditions; section 24 continues rules under a re-enacted Act.
8. Indian Express Newspapers, AIR 1986 SC 515: subordinate legislation may be challenged on grounds on which plenary legislation may not.

Test yourself

1. Define delegated legislation and give three features that make an instrument legislative rather than administrative. The exercise by a subordinate authority of legislative power conferred on it by the legislature. An instrument is legislative if it is general, applying to a class rather than a named person; prospective, regulating future conduct; and normative, creating rights, duties or disabilities rather than applying existing ones to a particular case.

2. Is an ordinance delegated legislation? Explain. No. An ordinance under Article 123 or Article 213 is promulgated by the President or a Governor under a power conferred by the Constitution itself and has the same force and effect as an Act of the legislature, so it is a legislative act of a constitutional authority and not the exercise of a power delegated by a parent statute.

3. State section 21 of the General Clauses Act 1897 in full and say what students usually omit. That where an enactment confers a power to issue notifications, orders, rules or bye-laws, that power includes a power, exercisable in the like manner and subject to the like sanction and conditions if any, to add to, amend, vary or rescind them. What is usually omitted is the final requirement: the power to amend or rescind must be exercised by the same procedure and subject to the same conditions as the power to make.

4. Name four grounds on which delegated legislation may be struck down but an Act may not. That it is beyond the parent Act; that it is contrary to the parent Act; that the procedure prescribed for making it was not followed; and that it is unreasonable or manifestly arbitrary. Indian Express Newspapers, AIR 1986 SC 515, is the authority that subordinate legislation is open to challenge on grounds on which plenary legislation is not.

5. Why does Article 13(3)(a) matter to this Module? Because it defines law to include an ordinance, order, bye-law, rule, regulation, notification, custom or usage having the force of law, so a piece of delegated legislation that takes away or abridges a fundamental right is void under Article 13(2) in exactly the way an Act would be.

What the Donoughmore Committee said, and why it is still cited

The Committee on Ministers' Powers, chaired by the Earl of Donoughmore, reported in 1932 after examining exactly this question in England. Its conclusion was that delegated legislation is inevitable in a modern State and that the answer is safeguards rather than prohibition, and its recommendations shaped the Statutory Instruments Act 1946 and the standing scrutiny committees. Chapter [The Growth of Administrative Law in England] sets it out.

The reason to cite it in an Indian answer is that it settles the framing of the question. The issue is not whether to delegate, which was decided long ago, but how much may be delegated and how the exercise is controlled, which is the rest of this Module.

The importance, stated as MU asks it

It makes the welfare State operable. Every regulatory statute in Module I confers rule-making power, and without it the licensing, standard-setting and price-fixing described there could not be done.

It puts expertise where the decision is. A regulator with technical members writing a tariff regulation under section 61 of the Electricity Act 2003 is doing what no legislature could.

It allows the law to keep pace. A rule can be amended by notification under section 21 of the General Clauses Act 1897; an Act cannot.

It relieves the legislature to do what only it can do, which is to settle policy and to hold the executive to account.

And it localises. A rule made for one State or one sector under a national Act is how a federal system with one framework accommodates difference.

The other side, which the next chapters develop

The same features that make delegation useful make it dangerous, and an answer that gives only the seven reasons is half an answer.

The maker is not elected. A rule affecting millions is settled by officials.

The volume defeats scrutiny. Chapter [The Committee on Subordinate Legislation] records how little of it is actually examined.

Flexibility can become retrospectivity. A power to amend can be used to change the position after conduct has occurred.

And the limit is not self-executing. Whether a delegation has gone too far is decided only when somebody litigates, which is Chapter [Excessive Delegation and the Essential Legislative Function].

A worked example

Parliament decides to regulate a new category of medical device.

What Parliament does. It enacts a framework: a definition, a requirement of registration, a power to prescribe standards, an enforcement mechanism, penalties, and an appeal. That is policy, and it is what a legislature is for.

What it cannot do. Specify the sterility standard, the labelling format, the testing protocol, the fee, the form of the application, or the qualifications of an inspector. Those are technical, they will change, and they differ by device.

So it delegates, and the rules under the Act supply all six.

And what happens if the technology changes. The rules are amended by notification under section 21 of the General Clauses Act 1897, in the like manner and subject to the like conditions. No fresh Act is needed, and the Act's policy is untouched.

What must not happen. The Act must not simply say that the Central Government may regulate medical devices as it thinks fit, because that leaves the policy itself to the executive, and Chapter [Excessive Delegation and the Essential Legislative Function] explains why that fails.

Quick revision

1. Seven reasons: pressure on parliamentary time; technicality; flexibility; unforeseen situations; emergency; experiment; local variation.
2. The Donoughmore Committee 1932 settled that the question is not whether to delegate but how much and with what safeguards.
3. Importance: it makes the welfare State operable, puts expertise where the decision is, lets the law keep pace, relieves the legislature for policy, and localises.
4. Section 3 of the Essential Commodities Act 1955 is the flexibility example; sections 61 and 178 of the Electricity Act 2003 are the technicality example.
5. Amendment is by notification under section 21 of the General Clauses Act 1897, in the like manner and subject to the like conditions.
6. The dangers are the same features seen from the other side: an unelected maker, a volume that defeats scrutiny, flexibility shading into retrospectivity, and a limit that operates only when somebody litigates.

Test yourself

1. Give seven reasons for delegated legislation, with an example of two of them. Pressure on parliamentary time; technicality; flexibility; the impossibility of foreseeing every situation; emergency; experiment; and local variation. Technicality is illustrated by sections 61 and 178 of the Electricity Act 2003, under which the Commission specifies tariff terms by regulation; flexibility by section 3 of the Essential Commodities Act 1955, under which prices and distribution can be altered by order as conditions change.

2. What did the Donoughmore Committee conclude, and why does it matter to an Indian answer? That delegated legislation is inevitable in a modern State and that the answer is safeguards rather than prohibition. It matters because it settles the framing of the question: not whether a legislature may delegate, but how much it may delegate and how the exercise of the delegated power is to be controlled.

3. State the importance of delegated legislation in four propositions. It makes the welfare State operable, since every regulatory statute depends on rules made under it; it places the decision where the expertise is; it allows the law to keep pace, because a rule can be amended by notification while an Act cannot; and it relieves the legislature to do what only it can do, which is to settle policy and hold the executive to account.

4. How is a rule amended, and what condition attaches? Under section 21 of the General Clauses Act 1897, the power to make includes the power to add to, amend, vary or rescind, but it must be exercised in the like manner and subject to the like sanction and conditions, so any requirement such as previous publication applies to the amendment as it applied to the original.

5. Give the danger that corresponds to each of the first three advantages. Relieving parliamentary time means the maker of most law is unelected; technicality means the rule is written by people the citizen cannot question; and flexibility means a power to amend can be used to alter the legal position after conduct has already occurred.