LLM Group 1 Constitutional and Administrative Law Administrative Process Nature and Scope 2016 Question Paper with Solutions

For full marks, cover: the comparison theme by theme rather than country by country, because five country descriptions in sequence is a list and not a comparative account. Six themes carry the marks: the source of administrative law, the control of delegated power, the existence of a procedure code, the institution that supervises the administration, the grounds and intensity of review, and the remedy including State liability. Under each theme all five systems are placed. Close with a table and with the two findings that matter, the long convergence on proportionality and codified procedure, and the sharp divergence of the last two years, in which the United States overruled Chevron in June 2024 and returned the interpretation of statutes to the courts.

Theme two: control of the power to delegate

Germany states the limit in the constitutional text. Article 80(1) of the Basic Law requires that where a statute authorises the making of subordinate legislation, the content, purpose and extent of the authority be determined in the statute itself. The United States derives the limit from the vesting clause as the intelligible principle test of J.W. Hampton, Jr. and Co. v. United States, 276 US 394 (1928), applied to invalidate a statute only in Panama Refining Co. v. Ryan, 293 US 388 (1935) and A.L.A. Schechter Poultry Corp. v. United States, 295 US 495 (1935). India reached the same place by construction of a written constitution in In re Delhi Laws Act, 1912, AIR 1951 SC 332, which held that the essential legislative function, the laying down of policy and its enactment into a binding rule, may not be delegated. France confines the domain of statute itself in Article 34 of the Constitution of 1958 and treats everything outside it as regulatory. The United Kingdom, having parliamentary sovereignty, has no doctrine of excessive delegation at all: Parliament may delegate as widely as it wishes, and the only control is construction of the enabling words.

Theme four: who supervises the administration

Two families. The common law systems, the United Kingdom, the United States and India, use one hierarchy of ordinary courts, supplemented by tribunals and, in America, by agency adjudication. The continental systems use a separate administrative jurisdiction: in France the tribunaux administratifs, the cours administratives d'appel and the Conseil d'État, with a Tribunal des conflits to allocate jurisdiction between the two orders; in Germany the Verwaltungsgericht, the Oberverwaltungsgericht and the Bundesverwaltungsgericht, with separate finance and social courts and the Federal Constitutional Court above them.

India's position within the common law family is distinctive in one respect: judicial review is not a judge made remedy but a constitutional guarantee under Articles 32 and 226, and in L. Chandra Kumar v. Union of India, (1997) 3 SCC 261 seven judges held that this jurisdiction is part of the basic structure and cannot be excluded even by amendment. No other system in the comparison places its supervisory jurisdiction beyond the reach of the legislature in that way.

France reviews for incompétence, defect of form, détournement de pouvoir and violation of law, and controls evaluation through the erreur manifeste d'appréciation; Benjamin (Conseil d'État, 19 May 1933) applied what is in substance a necessity test to a ban on a public meeting.

The United States has just changed its answer. Under Chevron U.S.A. Inc. v. Natural Resources Defense Council, 467 US 837 (1984), a court faced with an ambiguous statute had to accept any reasonable agency interpretation. In Loper Bright Enterprises v. Raimondo, decided 28 June 2024 by six to three, the Supreme Court overruled Chevron, holding that Section 706 of the Administrative Procedure Act requires courts to exercise independent judgment on what a statute means; agency views retain only the weaker respect of Skidmore v. Swift and Co., 323 US 134 (1944), and discretionary policy choices continue to be reviewed as arbitrary and capricious.

On liability the systems separate sharply. Blanco (Tribunal des conflits, 8 February 1873) made French administrative liability autonomous: a child injured by a wagon of the State tobacco factory at Bordeaux could not sue under the Civil Code, because the liability of the State for damage caused by persons it employs in a public service is neither general nor absolute and is governed by special rules administered by the administrative courts. Germany provides for it constitutionally in Article 34 of the Basic Law read with the Civil Code. England abolished Crown immunity by the Crown Proceedings Act, 1947 and America waived it in part by the Federal Tort Claims Act, 1946. India still labours under a distinction the others have abandoned, the sovereign and non-sovereign function test of Kasturilal Ralia Ram Jain v. State of Uttar Pradesh, AIR 1965 SC 1039, narrowed in N. Nagendra Rao and Co. v. State of Andhra Pradesh, (1994) 6 SCC 205 but never overruled. What India has built instead is a public law remedy the others lack: compensation in a writ petition for the violation of a fundamental right, from Rudul Sah v. State of Bihar, (1983) 4 SCC 141, where a man was detained for fourteen years after acquittal, to Nilabati Behera v. State of Orissa, (1993) 2 SCC 746.

The comparison in a table

Three of the comparative authorities worked in full

A comparative account is stronger for working two or three of its authorities rather than naming twenty, and these three carry the three legal traditions.

Ridge v. Baldwin, [1964] AC 40 (England). Ridge was the Chief Constable of Brighton. He was acquitted of a criminal charge, but the trial judge made observations critical of his leadership, and the watch committee dismissed him at a meeting to which he was not invited and of which he had no notice of the case against him. The House of Lords declared the dismissal void. Until then natural justice had been thought to apply only where a body had a superadded duty to act judicially, a limitation that had grown out of Nakkuda Ali and the wartime cases; Lord Reid rejected it, holding that the duty to act fairly follows from the effect of the decision on the individual. English administrative law dates its modern period from that decision, and India's own dissolution of the same distinction in A.K. Kraipak v. Union of India, (1969) 2 SCC 262 followed five years later.

Loper Bright Enterprises v. Raimondo, decided 28 June 2024 (United States). Atlantic herring fishermen challenged a rule of the National Marine Fisheries Service requiring them to pay the wages of the federal observers carried on their boats, the statute being silent on who should bear the cost. Under Chevron the courts below had upheld the rule as a reasonable reading of an ambiguous statute. By six to three the Supreme Court overruled Chevron, holding that Section 706 of the Administrative Procedure Act, which directs the reviewing court to decide all relevant questions of law, requires courts to exercise independent judgment; agency views retain only the persuasive weight of Skidmore v. Swift and Co., 323 US 134 (1944), while genuine exercises of delegated policy discretion remain reviewable as arbitrary and capricious. The facts matter to the comparison: the question was not a grand constitutional one but who pays for an observer, and forty years of deference fell on it.

For full marks, cover: all three notes are set out although the paper asks for two. Note (a) is an American constitutional doctrine that the Indian syllabus uses comparatively, so it must be explained in its own setting and then translated into the Indian provisions that do the same work. Note (b) must be treated as a legal event and not an economic one. Note (c) must distinguish responsibility from accountability and then work the four channels.

The American development runs through four cases. Munn v. Illinois, 94 US 113 (1876) upheld a State law fixing maximum charges for grain elevators, on the ground that when private property is clothed with a public interest it ceases to be juris privati only and must submit to public control. Jacobson v. Massachusetts, 197 US 11 (1905) upheld compulsory smallpox vaccination, holding that the liberty secured by the Constitution does not import an absolute right in each person to be free from restraint, and that a community has the right to protect itself against an epidemic. Lochner v. New York, 198 US 45 (1905) marks the doctrine's high-water mark of restriction, striking down a maximum hours law for bakers as an interference with liberty of contract, and it was repudiated in West Coast Hotel Co. v. Parrish, 300 US 379 (1937), which upheld a minimum wage law and returned economic regulation to the legislature.

The Indian case law tracks the American questions. State of Bombay v. F.N. Balsara, AIR 1951 SC 318 upheld most of the Bombay Prohibition Act, 1949 as a public health measure. Cooverjee B. Bharucha v. Excise Commissioner, Ajmer, AIR 1954 SC 220 upheld the auction of liquor licences, holding that the State may regulate or prohibit a trade inherently dangerous to public health. Khoday Distilleries Ltd. v. State of Karnataka, (1995) 1 SCC 574 treated trade in liquor as res extra commercium, so that Article 19(1)(g) does not protect a right to carry it on. Municipal Corporation of the City of Ahmedabad v. Jan Mohammed Usmanbhai, (1986) 3 SCC 20 upheld the closure of slaughterhouses on specified days as a reasonable restriction.

(b) Globalization and Liberalization Policy

Treated as a legal event, liberalisation is the moment India changed the technique of State control, and administrative law changed with it. The balance of payments crisis of 1991 produced the New Industrial Policy of 24 July 1991, which abolished industrial licensing except for a short reserved list, ended prior approval for expansion by large houses under the Monopolies and Restrictive Trade Practices Act, 1969, and opened most sectors to foreign investment. India became a founder member of the World Trade Organization in 1995. The Foreign Exchange Regulation Act, 1973, under which every foreign exchange transaction was forbidden unless permitted, was replaced by the Foreign Exchange Management Act, 1999, under which transactions are free unless regulated. The MRTP Act gave way to the Competition Act, 2002.

Four legal consequences follow, and they are the substance of the note.

Disinvestment raised the question of what remains public. BALCO Employees' Union v. Union of India, (2002) 2 SCC 333 held the decision to disinvest to be economic policy in which courts will not interfere absent illegality. But as the State withdrew, the reach of Article 12 contracted: Pradeep Kumar Biswas v. Indian Institute of Chemical Biology, (2002) 5 SCC 111 requires financial, functional and administrative domination, and Zee Telefilms Ltd. v. Union of India, (2005) 4 SCC 649 held the Board of Control for Cricket in India not to be State despite its monopoly, while allowing a writ under Article 226 for the discharge of a public duty. The public function jurisdiction is now doing work that Article 12 used to do.

The State's commercial conduct was brought under public law. Ramana Dayaram Shetty v. International Airport Authority of India, (1979) 3 SCC 489 forbade arbitrary distribution of largesse, and ABL International Ltd. v. Export Credit Guarantee Corporation of India Ltd., (2004) 3 SCC 553 confirmed that a writ lies in contractual matters where an instrumentality of the State acts arbitrarily.

Internally, the hierarchy supervises, the Conduct Rules bind, and discipline operates under Article 311 subject to Union of India v. Tulsiram Patel, (1985) 3 SCC 398. Financial accountability runs through the Comptroller and Auditor General under Articles 148 to 151 and the Public Accounts Committee. Vigilance accountability was reconstructed by Vineet Narain v. Union of India, (1998) 1 SCC 226, which gave the Central Vigilance Commission statutory status and superintendence over the Delhi Special Police Establishment and struck down the single directive requiring prior approval to investigate senior officers; when that protection was re-enacted as Section 6A of the 1946 Act it was struck down again in Subramanian Swamy v. Director, CBI, (2014) 8 SCC 682.

To Parliament, the channels are questions, motions, the financial committees and the departmentally related standing committees, and the limitation is that they reach the minister rather than the officer.

To the citizen, the Right to Information Act, 2005 was the largest single change, because it converted accountability from a favour into a right and altered behaviour upstream: a decision that will have to be explained is taken differently. That channel has just been narrowed. The Digital Personal Data Protection Rules, 2025, notified on 13 November 2025, brought Section 44(3) of the 2023 Act into force, amending Section 8(1)(j) of the Right to Information Act so that personal information is generally exempt, with the larger public interest override removed and only the residual balancing power in Section 8(2) surviving.

Assessment. The institutions are numerous and the accountability is thin, for reasons that are structural rather than moral. Sanctions attach to procedural default rather than to outcomes. The protections that shelter the honest officer, Article 311 and the sanction requirement for prosecution formerly in Section 197 of the Code of Criminal Procedure, 1973 and now in the Bharatiya Nagarik Suraksha Sanhita, 2023, also shelter the negligent. And the sanction actually used, transfer, appears in no accountability framework at all, which is why T.S.R. Subramanian v. Union of India, (2013) 15 SCC 732 directed a Civil Services Board, minimum tenure, and the recording in writing of oral instructions.

For full marks, cover: the theory at the length the question asks for, which means the intellectual history from Aristotle to Montesquieu, the three propositions the doctrine contains, the distinction between pure separation and checks and balances, the objections of principle, then the constitutional implementations, then the Indian scheme provision by provision, and finally the modern difficulty, which is that the administrative agency exercises all three powers at once. The examiner who writes "at length" is asking for structure, so the answer should be built in named parts rather than as continuous narration.

The intellectual history

Aristotle, in the Politics, distinguished three elements in every constitution, the deliberative, which decides on war, peace and legislation, the magisterial, which executes, and the judicial. He was describing, not prescribing.

The three propositions

Following Wade and Phillips, the doctrine asserts three things. First, that the same persons should not form part of more than one of the three organs of government. Second, that one organ should not control or interfere with the exercise of the functions of another. Third, that one organ should not exercise the functions of another.

A fourth distinction must be drawn, because most confusion about the doctrine comes from missing it. Pure separation insists that the three functions be kept in three hands and left alone. Checks and balances requires the opposite: that each organ be given a measured share in the work of the others so that it may resist encroachment, as with the presidential veto, senatorial confirmation of appointments, impeachment and judicial review. The American Constitution adopts the second, not the first, and Madison said so in The Federalist No. 47, arguing that Montesquieu could not have meant that the departments ought to have no partial agency in the acts of each other, only that the whole power of one department should not be exercised by the same hands that hold the whole power of another.

Implementation in the four systems

The United States is the rigid model. Three vesting clauses, separate composition, and the checks. Youngstown Sheet and Tube Co. v. Sawyer, 343 US 579 (1952) held President Truman's seizure of the steel mills during the Korean War unconstitutional because Congress had considered and rejected seizure, and Jackson J.'s concurrence gave the three zones of presidential power, at its maximum with congressional authority, in a twilight zone in silence, and at its lowest ebb against the expressed will of Congress. Immigration and Naturalization Service v. Chadha, 462 US 919 (1983) struck down the legislative veto for evading bicameralism and presentment. Most recently Loper Bright Enterprises v. Raimondo, 28 June 2024 overruled Chevron on the reasoning that saying what the law is is the judicial function and cannot be transferred to the agency that administers the statute.

The United Kingdom fuses the political branches and has moved towards separation only in respect of the judiciary, through the Constitutional Reform Act, 2005, which removed the Lord Chancellor's judicial role, created a separate Supreme Court and established the Judicial Appointments Commission.

The text separates in specific places. Article 50 directs the separation of the judiciary from the executive in the public services. Articles 121 and 211 forbid discussion in the legislature of the conduct of a judge in the discharge of duty. Articles 122 and 212 bar the courts from inquiring into legislative proceedings on grounds of procedural irregularity. Articles 105 and 194 confer privileges on the legislatures. Article 361 immunises the President and Governors. And Articles 124 to 147 and 214 to 231 secure the judiciary by tenure, by salaries charged on the Consolidated Fund, and by removal only on an address by both Houses.

The text also mixes deliberately. The executive legislates by ordinance under Articles 123 and 213, and by rule under every modern statute. The legislature adjudicates when it punishes for contempt. The judiciary makes rules for its own procedure under Articles 145 and 227 and, in the absence of a statute, has laid down binding norms, as in Vishaka v. State of Rajasthan, (1997) 6 SCC 241.

The modern difficulty

The administrative agency holds all three powers. A regulator writes regulations, investigates their breach, prosecutes and adjudicates. The law's response has not been to unwind the combination but to separate functions inside the body and secure the adjudicating part, which is the whole reasoning of the tribunal cases: from Union of India v. R. Gandhi, (2010) 11 SCC 1, requiring a tribunal that replaces a court to inherit the court's standards of independence, through Rojer Mathew v. South Indian Bank Ltd., (2019) 6 SCC 1, to Madras Bar Association v. Union of India, decided 19 November 2025, which struck down the appointment and tenure provisions of the Tribunals Reforms Act, 2021 for re-enacting what had already been held unconstitutional, and directed a National Tribunals Commission within four months.

Conclusion. The theory of separation of powers has never been implemented in the form Montesquieu stated, and could not be. What has survived, and what every constitution in the comparison enforces in its own way, is the purpose he gave it: no organ should hold power that nothing can check, and above all the function of deciding disputes must be kept away from the person interested in the outcome. India's settlement follows the purpose rather than the form. It permits a fused executive and legislature, executive law making by ordinance and by rule, and adjudication by tribunals; and it then places two things beyond the reach of amendment, that the legislature may not decide a case, and that judicial review may not be taken away. Those two rules are the whole of the doctrine that India actually enforces, and the litigation from Indira Nehru Gandhi in 1975 to Madras Bar Association in November 2025 shows that they are enforced repeatedly because they are challenged repeatedly.

The concept in brief

Dicey's three meanings, in the Law of the Constitution (1885), are the supremacy of regular law as against arbitrary power, equality before the law with officials subject to the ordinary courts, and a constitution that is the consequence of judicial decisions rather than their source. All three are qualified today: discretion is unavoidable, officials everywhere are subject to special tribunals, and a written bill of rights protects liberty at least as well as case law. What survives is the core, that power must have a legal source, defined limits, and a forum in which its exercise can be tested. Lord Bingham's eight sub-rules and the Delhi Declaration of the International Commission of Jurists, 1959, which adds the social and economic conditions of a life of dignity, are the modern statements Indian courts use.

Proposition one: the rule of law is part of the basic structure

Kesavananda Bharati v. State of Kerala, (1973) 4 SCC 225, thirteen judges, held that Article 368 does not permit the destruction of the basic structure of the Constitution, and several judgments named the rule of law among the features protected. The significance for administrative law is that the rule of law in India is not a maxim of interpretation but a limit on the constituent power itself.

Proposition three: arbitrariness is the antithesis of the rule of law

E.P. Royappa v. State of Tamil Nadu, (1974) 4 SCC 3 held that equality and arbitrariness are sworn enemies, and that an act which is arbitrary is implicit in it unequal both according to political logic and constitutional law and therefore violative of Article 14. Maneka Gandhi v. Union of India, (1978) 1 SCC 248 completed the structure: the passport of the petitioner was impounded under Section 10(3)(c) of the Passports Act, 1967 "in the interests of the general public" without reasons and without hearing, and the Court held that the procedure contemplated by Article 21 must be right, just and fair and not arbitrary, fanciful or oppressive, and read Articles 14, 19 and 21 together. Shayara Bano v. Union of India, (2017) 9 SCC 1 carried arbitrariness to legislation itself, holding that a law may be struck down for manifest arbitrariness.

Proposition five: the rule of law is not suspended in an emergency

A.D.M. Jabalpur v. Shivkant Shukla, (1976) 2 SCC 521 is where the doctrine failed, and it must be stated as a failure. The majority held that during the Emergency, with Article 21 suspended, no person had locus standi to move a writ of habeas corpus, so a detenu could not complain that his detention was without authority of law or was mala fide. Khanna J. dissented alone, holding that Article 21 is not the sole repository of the right to life and personal liberty and that even without it the State has no power to deprive a person of life or liberty without the authority of law; he was superseded for the Chief Justiceship. The dissent has been vindicated twice: the Constitution (Forty-fourth Amendment) Act, 1978 provided that Articles 20 and 21 can never be suspended, and in K.S. Puttaswamy v. Union of India, (2017) 10 SCC 1 nine judges expressly overruled the majority in ADM Jabalpur.

Two further modern applications

Vineet Narain v. Union of India, (1998) 1 SCC 226 enforced the rule of law against selective non-enforcement, directing statutory status for the Central Vigilance Commission and striking down the single directive that required prior approval before senior officers could be investigated; when the same protection was re-enacted as Section 6A of the Delhi Special Police Establishment Act, 1946 it was struck down again in Subramanian Swamy v. Director, CBI, (2014) 8 SCC 682. And Anuradha Bhasin v. Union of India, (2020) 3 SCC 637 held that orders suspending internet services must be published, reasoned, proportionate, temporary and subject to periodic review, on the elementary rule of law ground that an order the citizen cannot see is an order the citizen cannot challenge.

Anoop Baranwal v. Union of India, (2023) 6 SCC 161 concerned the appointment of the Chief Election Commissioner and the Election Commissioners. Article 324 vests the superintendence, direction and control of elections in the Commission and provides for appointment by the President subject to any law made by Parliament, and for seventy-three years Parliament made none, so appointments were made by the executive alone. A Constitution Bench held that an appointment process controlled entirely by the executive is inconsistent with the rule of law and with free and fair elections, and directed that appointments be made by the President on the advice of a committee of the Prime Minister, the Leader of the Opposition in the House of the People and the Chief Justice of India, until Parliament legislated. Parliament legislated within the year, and the Chief Election Commissioner and other Election Commissioners (Appointment, Conditions of Service and Term of Office) Act, 2023 replaced the Chief Justice on that committee with a Union Cabinet Minister. The validity of the substitution is under challenge and has not been decided, so the correct statement is that the question is open, and the episode is the clearest current illustration of the limits of judicial enforcement: a court may prescribe a process and a legislature may replace it, after which only the basic structure argument remains.

Conclusion. Stated through its cases, the Indian rule of law is not a maxim but a set of enforceable propositions. Kesavananda put it beyond amendment; Indira Nehru Gandhi stopped the legislature from deciding a case; Royappa, Maneka Gandhi and Shayara Bano turned it into a working prohibition of arbitrariness enforceable under Article 14; Jaisinghani and Dwarka Prasad required discretion to be confined by standards; Puttaswamy, by overruling ADM Jabalpur, established that it survives an emergency; and Vidya Devi and Bimal Kumar Shah have applied it to the taking of property with a precision the earlier cases never reached. The sequence also shows its weakness. Each of those propositions had to be won in litigation, sometimes twice, and none of them prevents the delay that denies the remedy. The rule of law in India is strong as doctrine and only as strong as the courts' willingness, in the individual case, to enforce it against the government.

The classical definition is Lord Halsbury's in Sharp v. Wakefield, [1891] AC 173: discretion means that something is to be done according to the rules of reason and justice and not according to private opinion, according to law and not humour, and it is to be not arbitrary, vague and fanciful but legal and regular. Indian law adds a constitutional dimension: after E.P. Royappa v. State of Tamil Nadu, (1974) 4 SCC 3, arbitrariness violates Article 14, so an unguided discretion is a defect in the statute or rule and not merely in its exercise. That is why Dwarka Prasad Laxmi Narain v. State of Uttar Pradesh, AIR 1954 SC 224 struck down the clause of the Uttar Pradesh Coal Control Order that let the licensing authority exempt anyone it chose: the vice was the absence of a standard, before any exercise of the power.

Structuring: what is done before the discretion is exercised

K.C. Davis's programme in Discretionary Justice (1969) remains the framework. He argued that the enemy is not discretion but unnecessary discretion, and proposed three operations. Confining fixes the boundaries of the power, by statute and by rule, so that the officer knows the outer limits. Structuring controls the manner of its exercise inside those boundaries. Checking is supervision, internal and judicial.

Rules. Where the same discretion is exercised repeatedly, the administration should make a rule and apply it, which is the most effective structuring device that exists. Its limit in Indian law is the rule against self-imposed fetters, from Shri Rama Sugar Industries Ltd. v. State of Andhra Pradesh, (1974) 1 SCC 534, where the majority upheld a State policy of granting purchase tax exemption only to cooperative sugar factories, holding that an authority with statutory discretion may adopt a general policy consistent with the statute; the qualification for which the case is cited is that it must not then shut its ears to the individual application: a policy may guide but may not be applied so rigidly that the individual case goes unconsidered.

Open findings. The facts found should be recorded, so that the basis of the decision is visible.

Publication is the precondition of all seven. Harla v. State of Rajasthan, AIR 1951 SC 467 held that a law which has never been published cannot bind, and Anuradha Bhasin v. Union of India, (2020) 3 SCC 637 applied the same logic to executive orders suspending internet services, requiring them to be published so that they can be challenged.

Limiting: what the courts do afterwards

The grounds divide into failure to exercise the discretion and abuse of it.

Failure covers sub-delegation without authority (Agricultural Market Committee v. Shalimar Chemical Works Ltd., (1997) 5 SCC 516); acting under dictation, as in Commissioner of Police, Bombay v. Gordhandas Bhanji, AIR 1952 SC 16, where a cinema licence cancelled by the Commissioner on the Government's direction was held void, the Court adding that a public order must be judged by what it says on its face and cannot be supported by later affidavits; the rigid application of a self-imposed rule; and non-application of mind.

The intensity of the limiting has increased. Om Kumar v. Union of India, (2001) 2 SCC 386 distinguished primary review, in which the court itself decides whether a restriction on a fundamental right is proportionate, from secondary Wednesbury review of the quantum of punishment. Modern Dental College and Research Centre v. State of Madhya Pradesh, (2016) 7 SCC 353 structured proportionality into legitimate aim, rational connection, necessity and balance, and K.S. Puttaswamy v. Union of India, (2017) 10 SCC 1 made it the standard wherever privacy is invaded. Internet and Mobile Association of India v. Reserve Bank of India, (2020) 10 SCC 274 shows it doing real work: the Reserve Bank's direction cutting off banking services to cryptocurrency businesses was set aside because the Bank had not shown that any regulated entity had suffered damage, a failure at the necessity stage.

Vishaka v. State of Rajasthan, (1997) 6 SCC 241 arose from the gang rape of a social worker who had tried to prevent a child marriage. There being no statute on sexual harassment at the workplace, the Court drew on the Convention on the Elimination of All Forms of Discrimination against Women and laid down binding guidelines defining the conduct, requiring a complaints committee headed by a woman with a third-party member, and imposing a duty on the employer to prevent and to redress. Those guidelines held the field for sixteen years, until the statute of 2013. As structuring they are exemplary: a published standard, a stated procedure and an identified decision maker, all in advance of any dispute.

D.K. Basu v. State of West Bengal, (1997) 1 SCC 416 did the same for arrest. The Court laid down eleven requirements, including accurate visible identification of the arresting officers, a memo of arrest attested by a witness and countersigned by the arrestee, information to a relative or friend, an entry in the diary at the place of detention, medical examination every forty-eight hours in custody, and the right to meet a lawyer during interrogation, and made breach punishable as contempt. This is structuring of the widest and least visible discretion in the Indian State, exercised thousands of times a day by officers whose decisions are almost never litigated.

Conclusion. Discretion cannot be abolished and should not be, because the alternative is a rule that is unjust in the individual case. The task is to make it predictable before it is exercised and reviewable after. On the second India has done well: the grounds of review are as developed as anywhere, and the standard has risen from Wednesbury to proportionality where rights are engaged. On the first it has done very little, and the failure is structural rather than judicial, because a court can require reasons in the case before it and cannot require an administration to publish its criteria in advance. Davis's insight was that most discretionary injustice never reaches a court at all, and the instruments that reach it are the structuring instruments. Until India enacts them, its law of administrative discretion will remain a law of remedies for the few who litigate rather than a law of standards for the many who do not.

What delegated legislation is

It is law made by an authority other than the legislature under a power conferred by statute. Three elements: the power must be statutory, the product must be legislative in character, that is, a general rule of conduct operating on a class, and it has the force of law. It takes the form of rules, regulations, orders, notifications, bye-laws, schemes and directions, and the label is not decisive, since a court will treat any instrument that lays down a general norm under statutory power as subordinate legislation.

The constitutional limit is that the essential legislative function may not be delegated, settled by seven judges in In re Delhi Laws Act, 1912, AIR 1951 SC 332: the legislature must lay down the policy and enact it into a binding rule, and may leave the working out of details. Gwalior Rayon Silk Mfg. (Wvg.) Co. v. Assistant Commissioner of Sales Tax, (1974) 4 SCC 98 produced the policy and guidelines test that has prevailed, and Hamdard Dawakhana v. Union of India, AIR 1960 SC 554 is the standard example of the limit being crossed.

Stage three, drafting and inter-departmental clearance, carried out by the administrative ministry with the Legislative Department, is where the policy is turned into text and where the practical risk of travelling beyond the Act arises.

Stage four, publication. This is a condition of validity and not a formality. Harla v. State of Rajasthan, AIR 1951 SC 467 set aside a conviction under an unpublished law, holding that natural justice requires promulgation before a law can operate. Govind Lal Chhaganlal Patel v. Agricultural Produce Market Committee, (1975) 2 SCC 482 held that where the statute prescribes the mode of publication that mode is mandatory, because the object is to reach the persons affected, so Gazette publication cannot be substituted for the newspaper publication the Act required. B.K. Srinivasan v. State of Karnataka, (1987) 1 SCC 658 stated the general rule that subordinate legislation must be published or promulgated in some suitable manner.

Stage five, laying before the legislature, in one of three forms: simple laying; laying subject to negative resolution, under which the House may annul or modify within a stated period without affecting anything already done; and laying subject to affirmative resolution, under which approval is a condition of effect. Its legal weight is limited, as explained under control below.

Parliamentary control operates at three stages, at the passing of the enabling Act, through laying, and through the Committees on Subordinate Legislation, constituted in the Lok Sabha in 1953 and the Rajya Sabha in 1964, which examine whether rules are within the power conferred, whether they impose taxation or oust the jurisdiction of courts, whether they operate retrospectively without authority, and whether there has been unjustifiable delay in laying them. The decisive limitation is legal: in Atlas Cycle Industries Ltd. v. State of Haryana, (1979) 2 SCC 196 the Supreme Court held the laying requirement in Section 3(6) of the Essential Commodities Act, 1955 to be directory and not mandatory, so a rule not laid is not thereby invalid; and the committees may recommend but cannot annul.

Natural justice is generally not attracted to rulemaking, and the line is drawn in Union of India v. Cynamide India Ltd., (1987) 2 SCC 720: price fixation is legislative in character, so no hearing is required and no reasons need be given, in contrast to a determination directed at identified persons.

Two process questions with their own law: conditional legislation and sub-delegation

Conditional legislation is a process that looks like delegation and is not. The legislature makes the law complete and leaves to the executive only the determination of a fact, a date, an area or a class to which it shall apply. Because no policy is transferred, the guidance required by In re Delhi Laws Act is supplied by the condition itself. Basant Kumar Sarkar v. Eagle Rolling Mills Ltd., AIR 1964 SC 1260 is the standard illustration: the power under the Employees' State Insurance Act, 1948 to appoint the date from which the Act would apply to a factory or class of factories was upheld, because the legislature had settled the entire scheme and left only its timing to the authority that alone could know when the administrative machinery would be ready. The practical importance of the distinction is that a conditional power needs no policy statement beyond the condition, so a challenge on the ground of excessive delegation must fail at the threshold.

Conclusion. Delegated legislation is defined by its source and its character, and it is controlled at every stage of a process that Indian law describes only partially. The parent Act fixes the width; consultation is required only where a particular statute says so; publication is mandatory and has been enforced as such since Harla in 1951; laying is directory after Atlas Cycle; and the scrutiny committees can recommend and nothing more. Everything that actually restrains the rule maker therefore happens in court, after the rule is in force, at the instance of someone able to litigate. That is a functioning system of control and it is not a good one, because it protects the litigant rather than the citizen. The reform that follows from the analysis of the process, and not from any theory, is a general statutory duty to publish a draft, receive comments and give reasons for rejecting them, which is what every comparable system has and India does not.

Its nature is that of delegated power exercised by unelected officials, and everything difficult about it follows from that. The officials are appointed, not chosen; they act under statutes drafted in broad terms; they combine functions that constitutional theory separates; and they decide at a volume no court could supervise case by case. The legitimacy of what they do therefore rests on procedure rather than on mandate, which is why the law of the administrative process is overwhelmingly a law of notice, hearing, reasons, publication and review.

Its growth in India has four drivers. The Directive Principles committed the State to a positive programme in education, health, employment and social security. Planning made the State the principal investor and allocator for four decades. Liberalisation after 1991 changed the technique to regulation by specialised bodies without reducing the volume of decisions. And technology has industrialised the process, so that assessments, allotments, subsidies and clearances are now made through systems rather than by officers.

In assessment, the Indian administrative process is large, indispensable and under-legislated. Its law has been built almost entirely by courts, case by case, which produces sophisticated doctrine and uneven practice: the duty to give reasons is settled in the reports and unmet in a great many offices, because nothing but litigation enforces it.

(b) Role of Civil Services

The civil service is the permanent executive, and its role in the administrative process is larger than the word "implementation" suggests. It advises on policy and supplies the institutional memory that ministers do not have; it drafts the delegated legislation under which most Indian regulation actually operates; it exercises statutory discretion in millions of individual decisions; it adjudicates, because first instance decision making under most Indian statutes is entrusted to officers acting quasi-judicially; and it collects revenue and delivers services. For most citizens, the civil service is the administrative process.

Its classical attributes are neutrality, anonymity and permanence, and the modern case law exists because all three have weakened. T.S.R. Subramanian v. Union of India, (2013) 15 SCC 732 directed the constitution of a Civil Services Board in the Union and the States to advise on postings and transfers, a minimum tenure so that transfer ceases to be a punishment, and, most consequentially for administrative law, that officers should not act on oral instructions and that unavoidable oral instructions be reduced to writing. That last direction is the recorded-reasons principle applied at its source: an instruction that leaves no trace produces a decision whose real author cannot be identified, and a decision with no identifiable author cannot be reviewed by anyone. Prakash Singh v. Union of India, (2006) 8 SCC 1 did the same work for the police, directing State Security Commissions, a selection process and minimum tenure for the Director General of Police, minimum tenure for operational officers, and the separation of investigation from law and order.

The Indian constitutional history is one of retreat and partial return, and it must be told in sequence. The Constitution as enacted guaranteed the right to acquire, hold and dispose of property in Article 19(1)(f) and protected against deprivation and acquisition in Article 31. Land reform produced a long contest, fought through the First, Fourth, Seventeenth and Twenty-fifth Amendments, Articles 31A, 31B and 31C, and the Ninth Schedule, and decided in part in Kesavananda Bharati v. State of Kerala, (1973) 4 SCC 225. The Constitution (Forty-fourth Amendment) Act, 1978 ended the contest by deleting Article 19(1)(f) and Article 31 and inserting Article 300A: no person shall be deprived of his property save by authority of law. Property thus became a constitutional and legal right enforceable under Article 226, but not a fundamental right enforceable directly under Article 32.

The decisive recent development is procedural. In Kolkata Municipal Corporation v. Bimal Kumar Shah, decided 16 May 2024, the Supreme Court held that Article 300A is not one right but seven sub-rights, each a step the State must take before depriving a person of property: notice of the intention to acquire, clear, cogent and meaningful; the right to be heard and to object; a reasoned decision on the objections; acquisition only for a demonstrable public purpose; fair compensation; an efficient and expeditious process; and the right of conclusion, that is, final vesting. An acquisition attempted unilaterally under Section 352 of the Kolkata Municipal Corporation Act, 1980 was set aside for want of them.

Conclusion. The three notes describe the administrative State, the people who operate it, and the sharpest power it exercises against the individual. The connecting thread is the one this whole subject turns on. In each case the power itself is not in question: a modern State must administer, must employ a permanent service to do it, and must sometimes take land. What the law supplies is conditions, and the direction of travel is towards conditions that are procedural and stated in advance. That is what Kraipak did to the classification of functions, what T.S.R. Subramanian tried to do to postings and oral instructions, and what Bimal Kumar Shah did in May 2024 to Article 300A by converting a single sentence into seven steps that can be checked one by one.

For full marks, cover: three systems and not five, which is what "special reference to India, USA, and UK" means, and use the space saved to go deeper on each. These three belong to one legal family, so the comparison is more interesting than the five-country version: all three are common law systems with a single hierarchy of ordinary courts, and they have nonetheless reached three different settlements. The organising insight is that each has a different supreme authority, Parliament in the United Kingdom, the written Constitution policed by courts in the United States, and a written Constitution with an unamendable core in India, and that everything else follows from it. The decisive point of currency is Loper Bright, decided 28 June 2024, which overruled Chevron.

Three decisions built the modern subject and each should be worked. Ridge v. Baldwin, [1964] AC 40: a chief constable was dismissed by a watch committee without notice or hearing; the House of Lords declared the dismissal void and rejected the idea that natural justice applied only to bodies with a superadded duty to act judicially, so that the duty attaches to the effect of a decision on the individual. Anisminic Ltd. v. Foreign Compensation Commission, [1969] 2 AC 147: the Commission misconstrued the Order in Council governing compensation claims; the statute said that its determination "shall not be called in question in any court of law"; the House held that a decision reached on a wrong view of the law is a nullity and therefore not a determination at all, so the ouster clause did not protect it. Council of Civil Service Unions v. Minister for the Civil Service, [1985] AC 374: prerogative power was held reviewable by reference to its subject matter, and Lord Diplock classified the grounds as illegality, irrationality and procedural impropriety, with proportionality flagged for the future.

Delegation is limited by the intelligible principle test of J.W. Hampton, Jr. and Co. v. United States, 276 US 394 (1928), and the separation of powers has been enforced against convenient devices: Immigration and Naturalization Service v. Chadha, 462 US 919 (1983) struck down the legislative veto for evading bicameralism and presentment.

The most consequential recent change is the fall of deference. Under Chevron U.S.A. Inc. v. Natural Resources Defense Council, 467 US 837 (1984), a court had to accept any reasonable agency interpretation of an ambiguous statute it administered. In Loper Bright Enterprises v. Raimondo, decided 28 June 2024 by six to three, the Supreme Court overruled Chevron, holding that Section 706 of the Administrative Procedure Act requires courts to exercise independent judgment on what a statute means. Agency interpretations retain only the persuasive weight of Skidmore v. Swift and Co., 323 US 134 (1944), while discretionary policy choices remain reviewable as arbitrary and capricious. An answer that describes the United States as a deference jurisdiction is two years out of date, and this is the single most commonly lost mark on this question.

What India added is Article 14. E.P. Royappa v. State of Tamil Nadu, (1974) 4 SCC 3 identified arbitrariness as the antithesis of equality; Maneka Gandhi v. Union of India, (1978) 1 SCC 248 required procedure under Article 21 to be fair, just and reasonable; and Shayara Bano v. Union of India, (2017) 9 SCC 1 confirmed manifest arbitrariness as a ground for striking down legislation. English law has no equivalent, because it has no written guarantee of equality, and American law reaches similar results only through the due process and equal protection clauses. Proportionality then arrived in Om Kumar v. Union of India, (2001) 2 SCC 386 and was structured in Modern Dental College and Research Centre v. State of Madhya Pradesh, (2016) 7 SCC 353.

A fourth axis: what each system does with an ouster clause

Nothing separates these three systems as sharply as what happens when the legislature tries to exclude the courts, and the axis is worth adding because it tests the principle rather than the machinery.

In India the clause is not construed away, it is struck down. L. Chandra Kumar v. Union of India, (1997) 3 SCC 261 held the power of judicial review vested in the High Courts under Articles 226 and 227 and in the Supreme Court under Article 32 to be part of the basic structure, and declared clause 2(d) of Article 323A and clause 3(d) of Article 323B unconstitutional to the extent that they excluded it. Those were provisions of the Constitution itself, inserted by the Forty-second Amendment, and the Court invalidated them. The same instinct appears in Subramanian Swamy v. Director, CBI, (2014) 8 SCC 682, striking down Section 6A of the Delhi Special Police Establishment Act, 1946, which had shielded senior officers from investigation without prior approval.

In the United States the question takes a different form, because Congress has substantial constitutional control over the jurisdiction of the federal courts, and the argument therefore tends to be about whether a statute has in fact precluded review rather than about whether it may, with a strong presumption in favour of reviewability built into the Administrative Procedure Act, 1946.

For full marks, cover: notes (b) and (c) are set out in full below. Note (a), the doctrine of eminent power, is set in identical terms as note (c) of question 7 of QP Code 11846, the first paper in this volume, and is answered there in full; its marks plan is given here so that the same eight hundred words are not printed twice.

(b) Role of various Administrative Agencies

"Administrative agency" covers every body other than the legislature and the courts that exercises statutory power, and in Indian law the legal form of the body decides which constitutional guarantees reach it. Six forms must be distinguished, and the distinction is the substance of the note.

Government departments are the State itself, acting through the President or the Governor under Articles 77 and 166, and every provision of Part III applies to them directly.

Statutory corporations, created by their own Act, such as the Life Insurance Corporation, the Oil and Natural Gas Commission or a State Electricity Board, have separate legal personality and make their own regulations. Sukhdev Singh v. Bhagatram Sardar Singh Raghuvanshi, (1975) 1 SCC 421 held that those regulations have the force of law and that such corporations are State within Article 12; Mathew J. supplied the theory that has governed the field ever since, that a public corporation is an instrumentality or agency of the State and the State cannot escape its constitutional obligations by creating one.

Regulatory commissions are the characteristic institution of the post-1991 State: the Securities and Exchange Board of India, the Telecom Regulatory Authority of India, the electricity commissions, the insurance and pension regulators, the Competition Commission, and the real estate and insolvency regulators. Each makes regulations, investigates, and adjudicates, and the courts control the combination by insisting on separated function and reasons: Clariant International Ltd. v. SEBI, (2004) 8 SCC 524; Competition Commission of India v. Steel Authority of India Ltd., (2010) 10 SCC 744; Competition Commission of India v. Bharti Airtel Ltd., (2019) 2 SCC 521.

Tribunals adjudicate, under Articles 323A and 323B and under individual statutes, and are governed by L. Chandra Kumar v. Union of India, (1997) 3 SCC 261 and, most recently, by Madras Bar Association v. Union of India, decided 19 November 2025, which struck down the appointment and tenure provisions of the Tribunals Reforms Act, 2021 and directed the constitution of a National Tribunals Commission within four months.

(c) Regulation and De-regulation Policy in India

India has run three regulatory regimes since independence. The first, to 1991, was control by prior permission: the Industries (Development and Regulation) Act, 1951 required a licence to establish, expand or relocate; the Monopolies and Restrictive Trade Practices Act, 1969 required approval for expansion by large houses; and the Foreign Exchange Regulation Act, 1973 prohibited every foreign exchange transaction unless permitted. The instrument was discretionary case-by-case permission, which is the form of regulation most productive of delay and rent seeking.

The New Industrial Policy of 24 July 1991 abolished industrial licensing except for a short reserved list and opened most sectors to foreign investment. What followed was not withdrawal but a change of technique, to rules and supervision by specialised regulators: SEBI made statutory in 1992, TRAI in 1997, the Central Electricity Regulatory Commission in 1998, the insurance regulator in 1999, the Competition Commission under the Act of 2002, and the real estate and insolvency regulators in 2016. FERA became the Foreign Exchange Management Act, 1999, which reverses the default so that transactions are free unless regulated.

Deregulation does not suspend Article 14, and that is the constitutional point the note must make. Centre for Public Interest Litigation v. Union of India, (2012) 3 SCC 1 cancelled 122 telecom licences allotted on a first-come-first-served basis because the method of allotting a public resource was arbitrary; the advisory opinion in Natural Resources Allocation, In re Special Reference No. 1 of 2012, (2012) 10 SCC 1 corrected the wider reading, holding that auction is not the only constitutionally permissible method, the test being whether the method serves the common good and is not arbitrary. BALCO Employees' Union v. Union of India, (2002) 2 SCC 333 established the complementary rule that the decision to disinvest is economic policy in which courts do not interfere absent illegality.

The scheme has four load-bearing features. Elections must be held every five years and are conducted by an independent State Election Commission under Articles 243K and 243ZA, with the same insulation from ordinary executive control as the Election Commission of India. Seats are reserved for Scheduled Castes, Scheduled Tribes and, to not less than one third, for women, which is why women's representation in local government has been secured since 1993 while the corresponding provision for Parliament and the State legislatures had to wait for the 106th Amendment. A State Finance Commission must be constituted every five years under Articles 243-I and 243Y to recommend the distribution of resources. And the Eleventh and Twelfth Schedules list twenty-nine and eighteen subjects respectively which the State legislature may devolve, including planning, water, sanitation, primary education, health and urban planning.

Conclusion. The two notes answered in full describe the same institution from two sides. The variety of legal forms an administrative agency may take is the direct consequence of a State that has changed technique three times in seventy-five years, from departmental administration to public enterprise to regulation, and the tests in Ajay Hasia and Pradeep Kumar Biswas exist precisely so that the choice of vehicle cannot put public power beyond Part III. What has not kept pace is the law governing how these bodies must behave: it is still assembled case by case, which is why the same principle has to be established afresh each time a new regulator is created, and why the National Tribunals Commission directed in November 2025 matters as a precedent for a common institutional standard.

The doctrine, compactly

Montesquieu, in De l'Esprit des Lois (1748), argued that liberty is lost when the legislative, executive and judicial powers are united, and that power should be a check to power. The doctrine asserts that the same person should not be part of more than one organ, that no organ should control another, and that no organ should exercise another's functions. No constitution implements all three, and the useful question is where each system draws the line. India's position is Ram Jawaya Kapur v. State of Punjab, AIR 1955 SC 549: the Constitution has not recognised the doctrine in its absolute rigidity, but the functions of the branches are sufficiently differentiated that one organ may not assume functions essentially belonging to another.

Illustrations of the executive exercising legislative power

Delegated legislation. Every modern Indian statute confers rule making power, and the rules run to many times the length of the Act. The limit is In re Delhi Laws Act, 1912, AIR 1951 SC 332: the essential legislative function, the laying down of policy and its enactment into a binding rule, cannot be transferred.

Illustrations of the legislature exercising judicial power

Privileges and contempt. Under Articles 105 and 194 each House may punish for contempt and breach of privilege, sitting in effect as a court in its own cause; the judiciary has accepted the power while retaining to itself the question whether a privilege exists and what its extent is.

Validating legislation. A legislature may retrospectively cure the defect on which a judgment proceeded, and this is constitutional; what it may not do is set the judgment aside. The line was drawn in Indira Nehru Gandhi v. Raj Narain, 1975 Supp SCC 1, where Article 329A(4), which declared the Prime Minister's election valid and barred every court from examining it, was struck down because Parliament had decided a pending case rather than laid down a rule.

Impeachment and removal. The removal of a judge under Article 124(4) is a judicial-style inquiry conducted through a legislative process, which is a deliberate mixing of function.

Illustrations of one organ checking another

Judicial review of legislation and of administrative action under Articles 13, 32 and 226 is the standing check, and L. Chandra Kumar v. Union of India, (1997) 3 SCC 261 placed it beyond amendment.

Parliamentary control of finance and administration through the Comptroller and Auditor General under Articles 148 to 151 and the Public Accounts Committee.

Comparative illustrations. Youngstown Sheet and Tube Co. v. Sawyer, 343 US 579 (1952): President Truman's seizure of the steel mills during the Korean War was unconstitutional because Congress had considered and rejected seizure, and Jackson J.'s three zones of presidential power follow from it. Immigration and Naturalization Service v. Chadha, 462 US 919 (1983): the legislative veto was void for evading bicameralism and presentment. R (Miller) v. The Prime Minister, [2019] UKSC 41: a court held the prorogation of Parliament unlawful, policing the boundary between two political organs in a system with no written constitution. Loper Bright Enterprises v. Raimondo, 28 June 2024: Chevron was overruled on the reasoning that determining what a statute means is the judicial function and cannot be handed to the agency administering it.

Assent to Bills, in the opposite direction. In State of Tamil Nadu v. Governor of Tamil Nadu, decided 8 April 2025, the Court had prescribed timelines under Articles 200 and 201 and treated ten Bills as having received deemed assent under Article 142. On a reference under Article 143, a Constitution Bench advised on 20 November 2025 that no judicially prescribed timelines may be imposed, that deemed assent is alien to the Constitution because one constitutional authority cannot substitute itself for another, and that decisions under those Articles are not ordinarily justiciable, while a Governor may not sit on a Bill indefinitely. It is the newest illustration in the subject and it limits a court rather than the executive, which is exactly why it is worth citing.

Two illustrations from the financial constitution

The sharpest recent illustrations of the doctrine in India come from the law of Money Bills, and they are worth giving because they show all three organs at once.

The second illustration is Part XIV of the Finance Act, 2017, which restructured nineteen tribunals and conferred rulemaking power over the appointment and service conditions of their members. In Rojer Mathew v. South Indian Bank Ltd., (2019) 6 SCC 1 the Court struck down the rules made under Section 184 for excessive executive control, and referred to a larger bench the question whether Part XIV could validly have been enacted as part of a Money Bill at all, doubting the reasoning on that point in the Aadhaar decision. The question of what may be certified as a Money Bill therefore remains open.

As illustrations of the doctrine these are unusually complete. The executive selects the legislative route; the Speaker certifies it and the Constitution declares the certificate final; the Court nevertheless examines whether the Bill fell within Article 110, because finality against challenge in the House is not finality against constitutional review; and what the legislation did in Rojer Mathew was to transfer control of adjudicators to the executive, which the Court struck down. Legislature, executive and judiciary are each doing something the doctrine says belongs to another, and the resolution turned, as it usually does in India, on protecting the adjudicative function.

For full marks, cover: the question is about change, so the answer must be organised as a sequence of shifts and not as a description of the concept. Six dimensions have changed, and each should be given its own short section with the authority that marks the shift: from Dicey's formal legality to substantive fairness; from a formal to a thick or developmental conception; from equality before the law to equality of access; from a rule binding the State to one with horizontal reach; from courts as the only enforcer to a set of accountability institutions; and from analogue publication to digital transparency and its recent narrowing. Open with Dicey in one paragraph and spend the rest on the movement.

The starting point

Dicey's three meanings, in the Law of the Constitution (1885), were the supremacy of regular law as against arbitrary power, equality before the law with officials subject to the ordinary courts, and a constitution that is the result of judicial decisions rather than their source. He wrote for a State that policed and taxed and did little else, and each proposition has been overtaken by what the State became.

Dimension two: from a formal to a developmental conception

The formal conception asks only that rules be clear, prospective, general and applied by independent courts, which is Raz's list. The Delhi Declaration of the International Commission of Jurists, 1959 added substance, declaring that the rule of law requires the creation of the social, economic, educational and cultural conditions in which a person may live in dignity and fulfil his legitimate aspirations. Lord Bingham's eight sub-rules take the same view, requiring the protection of fundamental rights and dispute resolution without prohibitive cost. Indian courts adopted the developmental version, which is how the rule of law came to be invoked in cases about bonded labour, food, shelter and the environment, and it is also the version that attracts the standing criticism that a concept required to deliver everything explains nothing.

Dimension four: from a vertical to a partly horizontal rule

The rule of law was framed as a constraint on the State, and much of the power that now affects people is private. In Kaushal Kishor v. State of Uttar Pradesh, (2023) 4 SCC 1 the Supreme Court held that the rights under Articles 19 and 21 are enforceable even against persons other than the State or its instrumentalities, which is a substantial change in the reach of the constitutional guarantee. The public function jurisdiction under Article 226 does related work, as Zee Telefilms Ltd. v. Union of India, (2005) 4 SCC 649 shows: a body may fail the Article 12 test and still be amenable to a writ for the discharge of a public duty.

Dimension six: from publication in a Gazette to digital transparency, and back a little

Publication has always been a condition of the rule of law. Harla v. State of Rajasthan, AIR 1951 SC 467 held that an unpublished law cannot bind, and Anuradha Bhasin v. Union of India, (2020) 3 SCC 637 carried the principle into the digital State by requiring that orders suspending internet services be published, reasoned, proportionate and periodically reviewed, on the plain ground that an order the citizen cannot see cannot be challenged. The most recent movement is in the other direction: the Digital Personal Data Protection Rules, 2025, notified on 13 November 2025, brought Section 44(3) of the 2023 Act into force and amended Section 8(1)(j) of the Right to Information Act to exempt personal information generally, removing the larger public interest override and leaving only the residual balancing power in Section 8(2). Whether that is a proportionate reconciliation of two constitutional values, privacy after K.S. Puttaswamy v. Union of India, (2017) 10 SCC 1 and accountability under the 2005 Act, is the live argument of the present moment.

The first is interpretive. Article 51(c) directs the State to endeavour to foster respect for international law and treaty obligations, and Indian courts have used unincorporated international instruments to fill gaps in domestic law where there is no inconsistency with a statute. Vishaka v. State of Rajasthan, (1997) 6 SCC 241 is the leading example: in the absence of any Indian statute on sexual harassment at the workplace, the Court drew directly on the Convention on the Elimination of All Forms of Discrimination against Women to formulate binding guidelines, holding that international conventions consistent with the fundamental rights may be read into them. K.S. Puttaswamy v. Union of India, (2017) 10 SCC 1 used the International Covenant on Civil and Political Rights and the Universal Declaration in the same way in recognising privacy.

The second is legislative and administrative. Membership of the World Trade Organization from 1995 required amendments to the Patents Act, 1970 in 1999, 2002 and 2005, and produced Novartis AG v. Union of India, (2013) 6 SCC 1, in which the Supreme Court upheld the domestic safeguard in Section 3(d) against a claim founded on the international standard. Food, environment and financial regulation have all acquired standards traceable to international instruments, administered by Indian agencies applying Indian rules.

Conclusion. The dimensions of the rule of law have changed six times over, and every change was driven by a change in what the State does. When the State merely policed, formal legality was enough; when it began to provide, the concept acquired a developmental content; when it became clear that a right without access is no right, it acquired legal aid and relaxed standing; when private power grew large enough to matter, it acquired a horizontal reach in Kaushal Kishor; when judicial review proved too slow and too narrow, it acquired an architecture of vigilance, audit and information; and when administration went digital, it acquired a requirement of publication that Anuradha Bhasin enforced and the amendment of Section 8(1)(j) in November 2025 has partly reversed. Through all of it the core has not moved. Jaisinghani states it as well now as it did in 1967, and every one of these dimensions is a different answer to the same question: how do you make sure the citizen knows where he stands.

Its limits are classical. Sharp v. Wakefield, [1891] AC 173: discretion means according to the rules of reason and justice and not according to private opinion, according to law and not humour. S.G. Jaisinghani v. Union of India, AIR 1967 SC 1427: the absence of arbitrary power is the first essential of the rule of law, and discretion must be confined within clearly defined limits so that a decision is predictable and the citizen knows where he is.

Effect one: technology eliminates discretion at the point of delivery

Where a decision can be reduced to a rule, the rule can be coded and the officer's choice disappears. Faceless assessment, introduced as Section 144B of the Income-tax Act, 1961 with effect from 1 April 2021 and carried forward into the Income-tax Act, 2025, which replaced the 1961 Act on 1 April 2026, allocates a return to a randomly selected unit anywhere in the country and removes the taxpayer's contact with a named officer. Direct benefit transfer pays a subsidy into an account without a disbursing officer. The Government e-Marketplace standardises procurement. Online allotment in admissions applies a published rule to a ranked list.

The gain is real and should be stated plainly. The commonest form of arbitrariness in Indian administration was never a perverse decision; it was a decision delayed, hidden or sold at a counter. A process with no counter has no queue to be bought, and to that extent technology has done more for the Jaisinghani principle than any judgment.

Two established doctrines have obvious work to do here and have not yet been applied to code. The rule against acting under dictation in Gordhandas Bhanji asks who really decided; when a system decides, the answer is whoever specified it. And the rule against fettering discretion by a rigid policy, from Shri Rama Sugar Industries Ltd. v. State of Andhra Pradesh, (1974) 1 SCC 534, where the majority upheld a State policy of granting purchase tax exemption only to cooperative sugar factories, holding that an authority with statutory discretion may adopt a general policy consistent with the statute; the qualification for which the case is cited is that it must not then shut its ears to the individual application, asks whether the individual case was considered; a system that cannot accept an exception has fettered the discretion completely.

Effect four: technology creates discretions that did not exist

Blocking, takedown, suspension of services and algorithmic profiling are powers with no analogue in the older administrative law, and the courts have had to build standards for them. Shreya Singhal v. Union of India, (2015) 5 SCC 1 struck down Section 66A of the Information Technology Act, 2000 for vagueness, which is a discretion holding: a provision letting an officer decide for himself what is "grossly offensive" confers precisely the unconfined power Jaisinghani forbids. The Court upheld Section 69A because it is confined by enumerated grounds and hedged with procedure, which is the same reasoning applied the other way. Anuradha Bhasin v. Union of India, (2020) 3 SCC 637 required orders suspending internet services to be published, reasoned, proportionate, temporary and periodically reviewed. Internet and Mobile Association of India v. Reserve Bank of India, (2020) 10 SCC 274 set aside the Reserve Bank's direction cutting cryptocurrency businesses off from banking services because the Bank could not show that any regulated entity had suffered damage, a failure at the necessity stage of proportionality.

The fifth effect: technology is also a check, and not only a discretion

Every account of technology and discretion concentrates on what automation does to the decision. The other half of the story is what it does to the record, and for administrative law that is at least as important, because a system of review is worth exactly as much as the evidence available to it.

A digital process produces an audit trail as a by-product. Who accessed a file, when a note was written, when it moved, which officer approved and what was changed are all recorded in an electronic file management system, and the sequence cannot be reconstructed afterwards in the way a paper file could be. That single fact does more to enforce the rule against acting under dictation in Commissioner of Police, Bombay v. Gordhandas Bhanji, AIR 1952 SC 16 than any judgment could, and it supplies exactly the record that T.S.R. Subramanian v. Union of India, (2013) 15 SCC 732 was trying to create when it directed that oral instructions be reduced to writing.

The qualification is important and should be made. A record is a check only if someone may see it, and the direction of the last year has been the other way: the Digital Personal Data Protection Rules, 2025, notified on 13 November 2025, brought Section 44(3) of the 2023 Act into force and amended Section 8(1)(j) of the Right to Information Act so that personal information is generally exempt, removing the larger public interest override. The same technology that makes administrative action auditable therefore also concentrates the decision about who may audit it, and that decision is now made by rule rather than by a public interest test applied case by case.

Two of the technology decisions worked in full

The technology limb is usually written as a list of projects. Two worked decisions turn it into law.

K.S. Puttaswamy (Aadhaar) v. Union of India, (2019) 1 SCC 1. The Aadhaar (Targeted Delivery of Financial and Other Subsidies, Benefits and Services) Act, 2016 required biometric authentication as a condition of receiving subsidies, benefits and services for which expenditure is incurred from the Consolidated Fund, and Section 57 permitted any body corporate or person to demand authentication under a contract. The majority upheld Section 7 on proportionality reasoning, holding the objective of targeting welfare legitimate and the means suitable, and struck down Section 57 because allowing private parties to require authentication was disproportionate and had no legitimate State aim behind it. Much of the argument concerned exclusion errors, that is, eligible people denied entitlements when authentication failed, and that is the part that matters for administrative discretion: a failure rate that is negligible as a percentage is very large as a number when the denominator is a national population, so the design of the system, and not merely the individual denial, has to be capable of review.

For full marks, cover: the two limbs the question names, in roughly equal space, after two paragraphs setting up why control is needed and what the constitutional limit on delegation itself is. Parliamentary control has three stages and the answer must be honest about the weakness of each, with Atlas Cycle as the decisive authority. Judicial control divides into substantive and procedural ultra vires and each ground needs a worked case. End on the reform, and on the one modern sequence that shows which control actually bites.

Why control, and the limit on delegation itself

Delegated legislation is unavoidable and therefore dangerous. It exists because of pressure on legislative time, technicality, the need for flexibility, emergency and experimentation, and it accounts for far more Indian law by volume than the statute book. Krishna Iyer J. called it a necessary evil in Avinder Singh v. State of Punjab, (1979) 1 SCC 137.

Stage two, laying. Three forms are used: simple laying, requiring only that the rules be placed before the House; laying subject to negative resolution, allowing annulment or modification within a stated period, commonly thirty days over one or more sessions, without affecting anything already done; and laying subject to affirmative resolution, requiring approval before the rules take effect, used rarely.

The legal weight of laying is the point on which this question turns. In Atlas Cycle Industries Ltd. v. State of Haryana, (1979) 2 SCC 196 the Supreme Court held the laying requirement in Section 3(6) of the Essential Commodities Act, 1955 to be directory and not mandatory, because the provision prescribed no consequence for non-compliance and contained no power of annulment, so an order not laid before Parliament was not thereby invalid. Jan Mohammad Noor Mohammad Begban v. State of Gujarat, AIR 1966 SC 385 is to the same effect. The ordinary Indian laying clause is therefore an obligation without a sanction.

Travelling beyond the enabling provision. Kunj Behari Lal Butail v. State of Himachal Pradesh, (2000) 3 SCC 40 struck down a rule made under a general power to make rules for carrying out the purposes of the Act, because it dealt with a matter on which the Act was silent; a general rule making power does not enable entry into a field the Act has not entered. State of Karnataka v. H. Ganesh Kamath, (1983) 2 SCC 402 held that a rule may supplement but not supplant the Act.

Conflict with the parent Act or another statute, which is a question of construction and the commonest ground in practice.

Violation of the Constitution. Dwarka Prasad Laxmi Narain v. State of Uttar Pradesh, AIR 1954 SC 224 struck down clause 4(3) of the Uttar Pradesh Coal Control Order, which allowed the licensing authority to exempt any person in its discretion, as an unreasonable restriction under Article 19(1)(g) because no standard confined the power.

Judicial control: procedural ultra vires

Where the Act prescribes a procedure for making the rules, the court asks whether the requirement is mandatory, and publication is the leading example. Harla v. State of Rajasthan, AIR 1951 SC 467 set aside a conviction under an unpublished law: natural justice requires that a law be promulgated before it can operate, and it would be against those principles to punish subjects by a law of which they had no knowledge. Govind Lal Chhaganlal Patel v. Agricultural Produce Market Committee, (1975) 2 SCC 482 held that where the statute prescribes the mode of publication, that mode is mandatory, because the object is to reach the persons affected. B.K. Srinivasan v. State of Karnataka, (1987) 1 SCC 658 stated the general rule that subordinate legislation must be published in some suitable manner.

Consultation, where an Act requires it, is generally mandatory and the courts examine whether it was real. Natural justice, by contrast, does not ordinarily attach to rulemaking: Union of India v. Cynamide India Ltd., (1987) 2 SCC 720 held price fixation to be legislative, requiring neither hearing nor reasons.

The hardest case for both controls: the removal-of-difficulties clause

A Henry VIII clause permits the executive to modify the parent Act itself, and it is where parliamentary and judicial control are tested at the same time. The name comes from a monarch remembered for governing by proclamation, and the modern Indian form is a section empowering the Government, if any difficulty arises in giving effect to the Act, to make such provision as appears necessary or expedient for removing the difficulty.

Parliamentary control fails at this clause almost by definition, because the whole point of the power is that it is used after the Act is passed, on a difficulty the legislature did not foresee, and it produces an order which laying will not reach in any effective way given that laying is directory after Atlas Cycle Industries Ltd. v. State of Haryana, (1979) 2 SCC 196.

The contrast states a working rule that applies well beyond these two statutes. A removal-of-difficulties power is valid if it is confined to smoothing implementation, must be exercised consistently with the Act, and remains open to challenge; it is invalid if it lets the executive decide what the Act shall mean and forecloses review of that decision. The rule is a useful test to apply to any unusually wide delegation, because the question it asks is the one the essential legislative function doctrine always asks: has the legislature left the detail, or has it left the decision?

For full marks, cover: notes (a) and (c) in full, each worth 12.5 marks. Note (b), the doctrine of police power, is set in identical terms as note (a) of question 2 of QP Code 11846, the first paper in this volume, where it is answered in full; its marks plan is given here rather than repeating the text.

(a) Role of Tribunals in adjudication

A tribunal is a statutory body outside the regular court hierarchy that decides disputes judicially, and the case for and against it should open the note. In favour: specialised members who understand the subject, procedure freed from the Evidence Act and the Civil Procedure Code, lower cost, faster disposal, and relief of the ordinary courts' docket. Against: a class of disputes is removed from courts staffed by an independent judiciary and given to bodies whose members are selected, paid and considered for reappointment by the executive, which in most of those disputes is the opposing party.

Union of India v. R. Gandhi, President, Madras Bar Association, (2010) 11 SCC 1 upheld the transfer of company jurisdiction to the National Company Law Tribunal but struck down the provisions on qualifications and selection: a tribunal that takes over the jurisdiction of a court must inherit the standards of independence and competence of that court. Madras Bar Association v. Union of India, (2014) 10 SCC 1 struck down the National Tax Tribunal Act, 2005 outright, because substantial questions of law previously decided by High Courts could not be transferred to a body whose independence was not secured. Rojer Mathew v. South Indian Bank Ltd., (2019) 6 SCC 1 struck down the rules made under Section 184 of the Finance Act, 2017 for excessive executive control over appointment, tenure and removal across nineteen tribunals.

Assessment. Tribunals now decide more disputes in India than the High Courts do, so the constitutional question is not whether they may exist but on what terms. The settled terms are four: judicial review by the High Court cannot be ousted; the selection process must be dominated by the judiciary; tenure must be long enough that a member is not seeking the executive's favour for reappointment; and the ministry whose orders are challenged must not be the tribunal's administrative controller. What has been missing is an institution to enforce those terms without fresh litigation every few years, which is precisely what the National Tribunals Commission is meant to be. The other standing criticism is practical rather than constitutional: vacancies and pendency have in several tribunals reproduced the delay they were created to cure.

(c) Doctrine of Taxing Power

Taxation is an inherent attribute of sovereignty, and in India it is expressly conditioned by the Constitution. The governing provision is Article 265: no tax shall be levied or collected except by authority of law. That means an Act of a competent legislature. An executive order, a departmental circular or an administrative instruction cannot impose a tax, and the requirement is one of the oldest rule of law guarantees in the constitutional text, older in its ancestry than judicial review.

Delegation of the taxing power is where this note meets administrative law. Corporation of Calcutta v. Liberty Cinema, AIR 1965 SC 1107 held that a levy which the Calcutta Municipal Act, 1951 called a licence fee on cinema houses was in substance a tax, because nothing was rendered in return for it, and then upheld the delegation of the power to fix its rate under Section 548(2) of that Act, because the legislature had supplied guidance by tying the levy to the needs of the Corporation. Devi Das Gopal Krishnan v. State of Punjab, AIR 1967 SC 1895 struck down an unguided power to fix the rate of sales tax at any figure the State chose, holding that fixing the rate is not a mere detail unless the statute supplies guidance. Avinder Singh v. State of Punjab, (1979) 1 SCC 137 upheld Section 90(4) of the Punjab Municipal Act, under which the State required municipalities to levy a tax of one rupee a bottle on foreign liquor, on the ground that the legislature had itself laid down the policy and had left only the selection of a rate within it.

Judicial review of taxation is real but deferential. The legislature has a wide discretion in classification for tax purposes, and courts do not sit in judgment on rates. But the exaction must be within competence, must satisfy Article 265, must not be confiscatory or manifestly arbitrary, and must not offend Articles 301 to 304 on the freedom of trade. Vivek Narayan Sharma v. Union of India, (2023) 3 SCC 1, the demonetisation decision, illustrates the general posture in fiscal and monetary matters: the notification was upheld by four to one, with Nagarathna J. dissenting on the ground that the power under Section 26(2) of the Reserve Bank of India Act, 1934 could not be exercised for all series of notes on the Central Government's initiative.