Administrative Process and Judicial Control Notes | LL.M. Semester 3 | Mumbai University | munotes

Contents

Module I

1. What Administrative Law Is 1
2. The Administrative Process: What the Administration Actually Does 5
3. Why Administrative Law Grew: From the Police State to the Welfare State 8
4. The Agencies of the Administrative Process 11
5. The Executive, Statutory Authorities and Public Corporations 14
6. The State under Article 12, and Who Can Be Sued in a Writ 17
7. Regulatory Agencies and the Modern Regulatory State 21
8. Administrative Tribunals: Articles 323A and 323B 24
9. The Administrative Tribunals Act 1985 in Working Order 27
10. Classifying Administrative Action: Legislative, Quasi-Judicial and Administrative 30
11. A.K. Kraipak and the Fading Line Between Quasi-Judicial and Administrative Action 33
12. Droit Administratif: The French System 36
13. The Conseil d'Etat and How French Administrative Justice Works 39
14. Dicey, the Rule of Law and the Quarrel with Droit Administratif 42
15. Common Law Control Compared with the French System 45
16. What Judicial Review Is 48
17. The Historical Development of Judicial Review 51
18. Judicial Review in the Constituent Assembly and in the Text of the Constitution 54
19. The Three Limbs of Judicial Review 57
20. Judicial Review of Administrative Action Distinguished from Review of Legislation 60
21. The Scope and Limits of the Judiciary's Power of Review 63
22. Judicial Review and the Basic Structure 66
23. State Actions Are Amenable in the Panorama of Judicial Review 70

Module II

1. Jurisdiction: What the Word Means Here 73
2. Article 32: The Supreme Court's Writ Jurisdiction 76
3. The Right to Constitutional Remedies as the Heart and Soul of the Constitution 79
4. When Article 32 Is Available, and When It Is Not 82
5. Articles 226 and 227: The High Court's Jurisdiction 85
6. Article 226 Compared with Article 32 88
7. Article 227: The Power of Superintendence 91
8. Territorial Jurisdiction: Article 226(2) and Where the Cause of Action Arises 94
9. Article 136: Special Leave to Appeal 97
10. The Five Writs and Where They Came From 100
11. The Writ of Habeas Corpus 103
12. Habeas Corpus in Practice: Preventive Detention and ADM Jabalpur 106
13. The Writ of Mandamus 109
14. Mandamus: Who May Ask, Against Whom, and What Bars It 112
15. The Writ of Certiorari 115
16. The Writ of Prohibition, and How It Differs from Certiorari 118
17. The Writ of Quo Warranto 121
18. Jurisdictional Error and the Collateral Fact Doctrine 124
19. Error of Law Apparent on the Face of the Record 128
20. The Law and Fact Distinction 131
21. Locus Standi: Who May Ask the Court to Review 134
22. Public Interest Litigation and Judicial Review 137
23. How Public Interest Litigation Actually Works 140
24. Tribunals, Article 323A and L. Chandra Kumar 143
25. The Grounds of Judicial Review, Classified 146
26. Illegality, Irrationality and Procedural Impropriety 149
27. The Doctrine of Ultra Vires 152
28. Substantive and Procedural Ultra Vires 155
29. Administrative Discretion: Why It Exists and Why It Is Controlled 158
30. The Exercise of Discretionary Powers by State Officials 161
31. Liversidge v Anderson and Subjective Satisfaction 164
32. Subjective Satisfaction in India after Barium Chemicals 167
33. Padfield: A Discretion Must Serve the Policy and Objects of the Act 170
34. Mala Fides: Malice in Fact and Malice in Law 173
35. Improper Purpose and Colourable Exercise of Power 176
36. Irrelevant Considerations, and Ignoring Relevant Ones 179
37. Non-Application of Mind 182
38. Acting Under Dictation 185
39. Fettering a Discretion by a Self-Imposed Rule 187
40. Unlawful Sub-Delegation of a Discretion 190
41. Wednesbury Unreasonableness, which MU Prints as an Oppressing Decision 193
42. The Doctrine of Proportionality 196
43. Proportionality in India after Om Kumar and Modern Dental College 199
44. Violation of Fundamental Rights as a Ground of Review 202
45. Absolute and Wide Discretion, Discrimination and Article 14 205
46. Error of Law and Error of Jurisdiction as Grounds 208
47. Failure to Give Reasons: The Reasoned Decision 211
48. Bias as a Ground of Review 214

Module III

1. Procedural Fairness and the Principles of Natural Justice 217
2. Nemo Judex in Causa Sua: The Rule Against Bias 220
3. The Kinds of Bias 223
4. The Test for Bias 226
5. The Doctrine of Necessity 228
6. Audi Alteram Partem: The Right to a Fair Hearing 230
7. What a Fair Hearing Contains 233
8. Notice, Disclosure and the Materials Relied On 236
9. Cross-Examination and Legal Representation 239
10. Pre-Decisional and Post-Decisional Hearing 242
11. Swadeshi Cotton Mills and the Post-Decisional Hearing 245
12. Ridge v Baldwin and the Revival of Natural Justice 248
13. Maneka Gandhi and the Hearing Requirement in Administrative Action 251
14. Natural Justice under Articles 14 and 21 254
15. Due Process in India 257
16. Substantive and Procedural Fairness 260
17. Natural Justice in Service Cases: Article 311 263
18. The Doctrine of Legitimate Expectation 266
19. Legitimate Expectation in India: Procedural and Substantive 269
20. Exclusion of Natural Justice 273
21. The Useless Formality Theory 276
22. Void or Voidable: The Effect of a Breach of Natural Justice 279
23. Institutional Decisions: He Who Decides Must Hear 282
24. The Map of Remedies 285
25. The Writ Remedy in Practice: How a Petition Is Actually Brought 288
26. The Writ Remedy Is Discretionary, Not a Matter of Right 291
27. Injunction as a Remedy Against the Administration 293
28. Declaration as a Remedy Against the Administration 296
29. Section 41 of the Specific Relief Act: The Injunctions a Court Cannot Grant 299
30. Suit for Damages and the Tortious Liability of the State 302
31. Compensation in Public Law 305
32. Statutory Remedies: Appeal, Revision and Departmental Review 309
33. Tribunals as the First Remedy 312
34. Enforcing the Order: Contempt of Court 315
35. Articles 141 and 142: The Reach of the Court's Own Order 318

Module IV

1. The Limits of Judicial Review 321
2. Alternative Remedies 324
3. Laches and Delay, which MU Prints as Latches 327
4. Res Judicata in Writ Jurisdiction 330
5. Constructive Res Judicata and Successive Petitions 333
6. The Finality Clause 336
7. The Exclusionary or Ouster Clause 339
8. Anisminic and What Became of Ouster Clauses 341
9. Ouster Clauses in India: Article 323A(2)(d), Kihoto and L. Chandra Kumar 344
10. The Conclusive Evidence Clause 347
11. Policy, Political Questions and Non-Justiciability 350
12. Disputed Questions of Fact 353
13. Academic Questions, Mootness and Infructuous Petitions 356
14. The Petitioner's Own Conduct 358
15. Contracts, Tenders and Economic Policy 361
16. Self-Restraint and the Separation of Powers 364
17. The Abuse of Public Interest Litigation 367
18. Immunities and Emergency: Articles 359 and 361 370
19. The Limit Parliament Cannot Impose 373
20. Delegated Legislation: What It Is 376
21. Rules, Regulations, Bye-Laws, Notifications and Orders 379
22. Why Delegated Legislation Is Inevitable 382
23. The Need for, and the Growth of, Delegated Legislation in India 384
24. Conditional Legislation 387
25. The Essential Legislative Function: In re Delhi Laws Act 390
26. Excessive Delegation after the Delhi Laws Act 393
27. The Grounds on Which Delegated Legislation Is Void 396
28. A Rule Ultra Vires Its Parent Act 399
29. A Rule Contrary to the Constitution 402
30. Unreasonableness and Manifest Arbitrariness in Subordinate Legislation 405
31. Mala Fide Subordinate Legislation 408
32. Retrospective Subordinate Legislation 411
33. Publication as a Condition of Validity 414
34. Sub-Delegation of Rule-Making Power 417
35. Consultation and the Procedural Control of Rule-Making 419
36. Legislative Control: Laying and the Scrutiny Committees 422
37. The Henry VIII Clause 425
38. Judicial Review and Legislative Supremacy in Delegated Legislation 428