LLM Group 1 Constitutional and Administrative Law Administrative Process Nature and Scope 2018 Question Paper with Solutions

For full marks, cover: the classical concept in two compact sections, because the question's weight is on the second half; then the current scenario organised by theme with the constitutional standard stated for each, not as a list of news items; then an honest assessment of where Indian practice matches the doctrine and where it does not. The themes that carry the answer now are the appointment of independent constitutional authorities, the criminal law overhaul of July 2024, transparency and its narrowing in November 2025, property and process, the independence of tribunals, the assent controversy, and delay.

In India the concept has three settled consequences. It is part of the basic structure, so it survives amendment: Kesavananda Bharati v. State of Kerala, (1973) 4 SCC 225 and Indira Nehru Gandhi v. Raj Narain, 1975 Supp SCC 1, where Article 329A(4), which validated the Prime Minister's election and ousted every court, was struck down because Parliament had decided a case rather than made a law. It is enforceable through Article 14 as a prohibition of arbitrariness: E.P. Royappa v. State of Tamil Nadu, (1974) 4 SCC 3 and Shayara Bano v. Union of India, (2017) 9 SCC 1. And it is not suspended by an emergency, a proposition established by Khanna J.'s lone dissent in A.D.M. Jabalpur v. Shivkant Shukla, (1976) 2 SCC 521, written into the Constitution by the Forty-fourth Amendment in 1978, and finally settled when nine judges expressly overruled the majority in K.S. Puttaswamy v. Union of India, (2017) 10 SCC 1.

The operative Indian sentence is older than all of these. 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, discretion conferred on executive authorities must be confined within clearly defined limits, and the citizen should be able to know where he stands.

The criminal law overhaul. On 1 July 2024 the Bharatiya Nyaya Sanhita, 2023, the Bharatiya Nagarik Suraksha Sanhita, 2023 and the Bharatiya Sakshya Adhiniyam, 2023 replaced the Indian Penal Code, 1860, the Code of Criminal Procedure, 1973 and the Indian Evidence Act, 1872. Two rule of law consequences follow, and they point in opposite directions. Accessibility, which Raz and Bingham both treat as central, suffers for a period of years while two codes run side by side according to the date of the offence. Against that, the new Sanhita's provision for releasing a first-time offender who has served one third of the maximum sentence, with the duty to apply placed on the jail superintendent, addresses the largest single failure of the Indian legal system: Prison Statistics India for 2023 recorded occupancy at about 120.8 per cent and undertrials at about 73.5 per cent of all prisoners.

Property and process. Kolkata Municipal Corporation v. Bimal Kumar Shah, decided 16 May 2024, held that Article 300A carries seven procedural sub-rights, of notice, hearing, a reasoned decision, demonstrable public purpose, fair compensation, an efficient and expeditious process, and final conclusion, and set aside a unilateral acquisition under Section 352 of the Kolkata Municipal Corporation Act, 1980. That is Jaisinghani applied to the State's most coercive ordinary power. Vidya Devi v. State of Himachal Pradesh, (2020) 2 SCC 569 is its companion: the State could not plead limitation or adverse possession against a widow whose land it had taken in 1967 without any acquisition at all.

Independence of adjudication. In Madras Bar Association v. Union of India, decided 19 November 2025, the Supreme Court struck down the core appointment and tenure provisions of the Tribunals Reforms Act, 2021, holding that Parliament had re-enacted provisions already declared unconstitutional in 2020 and 2021 without curing the defects, and directed a National Tribunals Commission within four months. Tribunals decide more disputes than the High Courts, and a member dependent on the executive for reappointment cannot deliver the equality before the law Dicey's second proposition demands.

Deregulation as a rule of law argument. The Jan Vishwas (Amendment of Provisions) Act, 2023 decriminalised 183 provisions across 42 Central Acts, and a Bill of 2026 proposes to amend eighty more. The argument for it is Raz's: a system with thousands of minor offences that cannot possibly all be enforced hands officials exactly the selective discretion that perverts the law. The argument against is that decriminalisation without the capacity to impose the civil penalty that replaces it is not enforcement by another route but non-enforcement.

Two further threads in the current scenario

Political finance. On 15 February 2024 a Constitution Bench struck down the electoral bonds scheme in Association for Democratic Reforms v. Union of India, together with the amendments made for it to the Representation of the People Act, 1951, the Companies Act, 2013 and the income tax legislation, holding that anonymous corporate funding of political parties violates the voter's right to information under Article 19(1)(a) and fails the proportionality test, and directing disclosure of the bonds already purchased and encashed. The reasoning is a rule of law reasoning in Bingham's sense rather than an electoral one: accountability is impossible where the law has deliberately concealed who paid whom, and the concealment was created by statute.

Both threads point the same way and should be stated together. The current scenario is not simply one of a State that must be restrained; it is one in which the two great sources of unaccountable power are the State's own opacity and the private exercise of public functions. Indian law has answered the first by requiring disclosure, in the Right to Information Act, 2005 and in the electoral bonds decision, and the second by extending the reach of the guarantees, in Kaushal Kishor and in the public function jurisdiction. The unresolved tension, and the reason the current position is genuinely contested rather than settled, is that the same period has seen the disclosure obligation narrowed by the amendment of Section 8(1)(j) in November 2025.

For full marks, cover: five systems compared on stated criteria, not five descriptions in a row. The efficient structure is to state the criteria first, run the two legal families, common law with one hierarchy of courts and continental with a separate administrative jurisdiction, then take each system in turn against the criteria, then a table, then a conclusion on convergence and divergence. The single point of currency that decides the top band is Loper Bright Enterprises v. Raimondo, 28 June 2024, which overruled Chevron.

The criteria, and the two families

Five questions organise the comparison: where administrative law comes from; how the power to delegate is limited; whether there is a statutory code of administrative procedure; which institution supervises the administration and on what grounds; and what remedy the citizen gets, including against the State in damages.

Three decisions built the subject. Ridge v. Baldwin, [1964] AC 40 revived natural justice: a chief constable dismissed without notice or hearing had the dismissal declared void, and the duty to act fairly was held to attach to the effect of the decision rather than to the classification of the body. Anisminic Ltd. v. Foreign Compensation Commission, [1969] 2 AC 147 held that a determination reached on a wrong view of the law is a nullity, so an ouster clause protecting a "determination" protects nothing. Council of Civil Service Unions v. Minister for the Civil Service, [1985] AC 374 made prerogative power reviewable by subject matter and gave Lord Diplock's classification of illegality, irrationality and procedural impropriety.

Since then, proportionality has entered where a Convention right is engaged, under the Human Rights Act, 1998 and R (Daly) v. Secretary of State for the Home Department, [2001] UKHL 26; the Supreme Court has policed the executive more firmly, in R (Miller) v. The Prime Minister, [2019] UKSC 41 and R (Privacy International) v. Investigatory Powers Tribunal, [2019] UKSC 22; and Parliament has responded with the Judicial Review and Courts Act, 2022, reversing Cart and permitting suspended and prospective-only quashing orders.

France

A separate jurisdiction, older than the present Republic. The Law of 16 to 24 August 1790 forbade the ordinary courts from interfering with the administration, and the Conseil d'État, created in 1799, took the resulting work; today the structure is tribunaux administratifs, cours administratives d'appel and the Conseil d'État, with a Tribunal des conflits allocating jurisdiction between the two orders.

Germany

The most constitutionally explicit of the five. Article 20(3) of the Basic Law binds the executive to statute and law; Article 19(4) guarantees recourse to a court against any act of public authority, so review is an entitlement and not a discretionary remedy; and Article 80(1) requires that the content, purpose and extent of any delegated power be fixed in the statute, which is the doctrine of excessive delegation written into the text. Procedure is codified in the Verwaltungsverfahrensgesetz of 1976 and court procedure in the Verwaltungsgerichtsordnung of 1960, with a three-tier administrative court hierarchy and separate finance and social courts. Germany is also the source of proportionality, structured in the Pharmacy judgment of the Federal Constitutional Court of 11 June 1958 into legitimate aim, suitability, necessity and balance.

Two Indian features are distinctive. There is no general Administrative Procedure Act, so notice, comment, reasons and publication rest on case law; the Law Commission's Fourteenth Report noticed the gap in 1958. And there is public law compensation, awarded in the writ petition itself for the violation of a fundamental right, from Rudul Sah v. State of Bihar, (1983) 4 SCC 141 to Nilabati Behera v. State of Orissa, (1993) 2 SCC 746, while ordinary tort liability still labours under the sovereign function distinction of Kasturilal Ralia Ram Jain v. State of Uttar Pradesh, AIR 1965 SC 1039.

The comparison in a table

The United Kingdom construes the clause away, and Parliament may try again. Anisminic Ltd. v. Foreign Compensation Commission, [1969] 2 AC 147: the statute said that a determination of the Commission shall not be called in question in any court of law; the Commission had misconstrued the governing Order in Council; the House of Lords held that a determination reached on a wrong view of the law is a nullity, so there was no determination for the clause to protect. Fifty years later R (Privacy International) v. Investigatory Powers Tribunal, [2019] UKSC 22 applied the same reasoning to a clause drafted specifically to survive Anisminic. Parliament answered with the Judicial Review and Courts Act, 2022.

India strikes the clause down, even when it is in the Constitution. L. Chandra Kumar v. Union of India, (1997) 3 SCC 261 held judicial review under Articles 226, 227 and 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 clauses had been inserted by the Forty-second Amendment, so the Court invalidated part of a constitutional amendment in order to preserve the jurisdiction.

Conclusion. Measured against the five criteria, the systems have converged on substance and stayed apart on institutions. Proportionality has travelled from the German Pharmacy judgment of 1958 into European and Convention law, then into England through the Human Rights Act and into India through Om Kumar and Modern Dental College; codified administrative procedure has spread from America in 1946 to Germany in 1976 to France in 2016. The institutional divide between one hierarchy of courts and two has not moved at all. Against that long convergence stands the sharpest recent divergence: in June 2024 the United States repudiated deference on questions of law, while England's Parliament has legislated to narrow review and India has continued to widen it. For India the comparison yields one conclusion that does not depend on any of these movements. Of the five it is the only system without a general statute of administrative procedure, and it therefore fights as constitutional litigation what the other four settled by drafting.

The doctrine

Montesquieu argued in De l'Esprit des Lois (1748) that liberty is lost when the legislative, executive and judicial powers are held in the same hands, and that power should be a check to power. The doctrine asserts three things: that the same person should not sit in more than one organ, that one organ should not control another, and that no organ should exercise another's functions. No constitution has adopted all three, and Madison in The Federalist No. 47 explained why: Montesquieu cannot have meant that the departments should have no partial agency in each other's acts, only that the whole power of one should not be held by the same hands that hold the whole power of another. Rigidity and flexibility are therefore settings on a dial, applied differently at each boundary.

Boundary one: legislature and executive

This is the boundary India and Britain leave most flexible and the United States keeps most rigid.

Rigid, in the United States. The President cannot sit in Congress and cannot legislate. Youngstown Sheet and Tube Co. v. Sawyer, 343 US 579 (1952) held Truman's seizure of the steel mills unconstitutional because seizure is a legislative measure and Congress had considered and rejected it; Jackson J.'s three zones of presidential power follow. Immigration and Naturalization Service v. Chadha, 462 US 919 (1983) struck down the legislative veto because Congress cannot act on the executive except by bicameral passage and presentment. The cost of that rigidity is deadlock, visible in the periodic failure to appropriate funds.

Boundary two: executive and judiciary

This is the boundary every system in the comparison keeps rigid, and it is the one that actually matters for administrative law.

In India it is rigid twice over. Article 50 directs the separation of the judiciary from the executive in the public services. And judicial review under Articles 226, 227 and 32 was held to be part of the basic structure in L. Chandra Kumar v. Union of India, (1997) 3 SCC 261, so it cannot be excluded even by constitutional amendment. That is a harder rule than any other system in the comparison possesses.

Rigid: the legislature may not decide a case. Indira Nehru Gandhi v. Raj Narain, 1975 Supp SCC 1 struck down Article 329A(4), inserted by the Thirty-ninth Amendment while an election appeal was pending, which declared the Prime Minister's election valid and barred every court from examining it. Parliament had not made law; it had adjudicated. It may, by contrast, retrospectively remove the basis of a judgment by changing the law, and that is constitutional, which is the line between validating legislation and legislative adjudication.

Flexible: the judiciary makes rules and gives directions. Vishaka v. State of Rajasthan, (1997) 6 SCC 241 laid down binding guidelines on sexual harassment at the workplace that governed for sixteen years until Parliament legislated in 2013; Prakash Singh v. Union of India, (2006) 8 SCC 1 issued seven directions on police reform. The counterweight is Divisional Manager, Aravali Golf Club v. Chander Hass, (2008) 1 SCC 683, holding that judges must know their limits and must not run the government.

November 2025: the boundary policed in both directions

Against the legislature. Madras Bar Association v. Union of India, decided 19 November 2025, struck down the core provisions of the Tribunals Reforms Act, 2021 on appointment, tenure and service conditions, holding that Parliament had re-enacted provisions already declared unconstitutional without curing the defects, and directed a National Tribunals Commission within four months.

Against the judiciary. The Presidential Reference decided on 20 November 2025 advised that no judicially prescribed timelines may be imposed on the Governor or the President under Articles 200 and 201 and that deemed assent is alien to the Constitution, since one constitutional authority cannot substitute itself for another. It displaced State of Tamil Nadu v. Governor of Tamil Nadu, decided 8 April 2025, which had prescribed timelines and treated ten Bills as assented to under Article 142.

An illustration from the financial constitution

The Money Bill cases are the sharpest recent Indian illustration of rigidity and flexibility in the same episode, and they involve all three organs.

The second case. Part XIV of the Finance Act, 2017 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 remains open.

What the illustration shows about the two settings. The Constitution makes the Speaker's certificate final, which is a rigid rule protecting the legislature from judicial second-guessing; the Court has nonetheless held that finality against challenge inside the House is not finality against constitutional review, which is flexibility in the enforcement of the boundary; and what the legislation actually did was to transfer control over adjudicators to the executive, which the Court struck down and struck down again when it was re-enacted, in Madras Bar Association v. Union of India, decided 19 November 2025. The pattern is consistent with everything else in this answer: India is flexible about form and rigid about the adjudicative function.

For full marks, cover: both notes, because this question prints no choice, so each is worth 12.5 marks and neither can be skipped. Note (a) asks about the civil servant, the individual officer, and not about the civil service as an institution, so the answer should be built around what the officer personally does and the dilemmas the role creates. Note (b) is an American doctrine used comparatively, so explain it in its own setting and then translate it into the Indian provisions and cases that do the same work.

(a) Role of Civil Servant as an Administrator

The civil servant is the point at which the State becomes visible to the citizen, and the role has five distinct components.

As holder of statutory discretion. Thousands of statutes confer power on a named officer, to license, permit, sanction, allot, assess, inspect, seize or detain. The officer exercising it is bound by the whole of the law of discretion: the power must be exercised by the person named and not on someone else's direction (Commissioner of Police, Bombay v. Gordhandas Bhanji, AIR 1952 SC 16), for the purpose for which it was conferred (State of Punjab v. Gurdial Singh, (1980) 2 SCC 471), on relevant material (Barium Chemicals Ltd. v. Company Law Board, AIR 1967 SC 295), and with reasons (Union of India v. Mohan Lal Capoor, (1973) 2 SCC 836).

As adjudicator. First instance decision making under most Indian statutes is entrusted to officers acting quasi-judicially, from an assessment order to a disciplinary finding to a licence cancellation. A.K. Kraipak v. Union of India, (1969) 2 SCC 262 holds that the line between administrative and quasi-judicial action is thin and being obliterated, so the officer must in practice observe natural justice whenever a decision affects rights.

The role creates three standing dilemmas, and a good note names them. The first is political direction against legal duty, which is why T.S.R. Subramanian v. Union of India, (2013) 15 SCC 732 directed that officers should not act on oral instructions and that unavoidable oral instructions be recorded in writing: an instruction that leaves no trace produces a decision with no identifiable author, and a decision with no author cannot be reviewed. The second is security against accountability: Article 311 guarantees an inquiry before dismissal, removal or reduction in rank, subject to the three provisos held to be a complete code in Union of India v. Tulsiram Patel, (1985) 3 SCC 398, and the same guarantee makes removal for non-performance almost impossible, so the sanction actually used is transfer, which is precisely why T.S.R. Subramanian directed minimum tenure and a Civil Services Board. The third is personal liability: Lucknow Development Authority v. M.K. Gupta, (1994) 1 SCC 243 allowed exemplary damages against a public body for harassing a citizen and said the amount should be recovered from the officer personally responsible.

Four American cases give the doctrine its shape. Munn v. Illinois, 94 US 113 (1876) upheld a State law fixing maximum charges for grain elevators, holding that when private property is clothed with a public interest it 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 to be free of all restraint and that a community may protect itself against an epidemic. Lochner v. New York, 198 US 45 (1905) struck down a maximum hours law for bakers as an interference with liberty of contract, and marks the point at which the doctrine was used to disable economic regulation; it was repudiated in West Coast Hotel Co. v. Parrish, 300 US 379 (1937), which upheld a minimum wage law.

India has no separate doctrine because the Constitution performs the same function expressly. The reasonable restrictions clauses of Article 19(2) to (6) permit restriction of the freedoms in the interests of public order, decency, morality, health and the general public. The State List assigns public order and police in Entries 1 and 2, public health and sanitation in Entry 6, and intoxicating liquors in Entry 8. And Article 47 makes the improvement of public health a directive duty, including the prohibition of intoxicating drinks and drugs injurious to health.

The modern Indian technique has absorbed the doctrine into proportionality, and that is the note's conclusion. Modern Dental College and Research Centre v. State of Madhya Pradesh, (2016) 7 SCC 353 requires a legitimate aim, a rational connection, necessity, and balance, and that structure now decides the questions the police power label used to decide. The pandemic supplied the test case: restrictions were imposed under the Disaster Management Act, 2005 and the Epidemic Diseases Act, 1897, and in Jacob Puliyel v. Union of India, 2022 SCC OnLine SC 533 the Supreme Court upheld the vaccination policy as reasonable while holding that mandates conditioning access to public places and services on vaccination were disproportionate, and affirming that bodily integrity is protected by Article 21. That is Jacobson revisited a century later under a different standard, and the difference in standard is the whole modern content of the doctrine.

Where the two notes meet: the officer who exercises the police power

These two notes are usually written as though they belonged to different subjects, and they do not. The police power is not exercised by a legislature in the abstract; it is exercised by a named civil servant on a particular day against a particular person, and every doctrine in the first note applies to that exercise.

The officer exercising such a power is bound by the whole of the law of discretion. The satisfaction must rest on material with a rational nexus, and the grounds must be communicated so that a representation can be made: Khudiram Das v. State of West Bengal, (1975) 2 SCC 81. The power must be exercised by the officer named and not on the direction of a superior: Commissioner of Police, Bombay v. Gordhandas Bhanji, AIR 1952 SC 16. The order must be published, so that it can be challenged at all: Anuradha Bhasin v. Union of India, (2020) 3 SCC 637, which required orders suspending internet services to be published, reasoned, temporary, proportionate and periodically reviewed. And the restriction must satisfy proportionality: Modern Dental College and Research Centre v. State of Madhya Pradesh, (2016) 7 SCC 353.

The connection is worth stating because it explains why both notes matter to the same examiner. A constitutional doctrine that permits the State to restrict liberty for the common welfare is worth exactly as much as the procedural discipline imposed on the individual official who applies it. India has the doctrine in Article 19(2) to (6) and the discipline in the case law on discretion, and the two meet in every order a district officer signs.

For full marks, cover: the definition and the forms; the historical debate, because the importance of delegated legislation was seriously contested within living memory and an answer that treats it as obviously benign misses the argument; the Indian constitutional foundation; then the importance itself, argued rather than asserted, and the strongest way to argue it is by asking what four named Indian statutes would achieve without their rules; then the dangers and the safeguards. Roughly one third on definition and foundation, one half on importance, and the remainder on the dangers.

What it is

Delegated legislation is law made by an authority other than the legislature, under power conferred by the legislature. Three elements: the power is statutory, so there is no inherent power to make law; the product is legislative in character, that is, a general rule of conduct operating prospectively on a class rather than an order aimed at a named person; and it has the force of law.

The Indian constitutional foundation

The legislature may delegate, but not its essential legislative function. In re Delhi Laws Act, 1912, AIR 1951 SC 332, a bench of seven, held that laying down the policy and enacting it into a binding rule of conduct is the legislature's own work, and that only the working out of details may be handed over. Gwalior Rayon Silk Mfg. (Wvg.) Co. v. Assistant Commissioner of Sales Tax, (1974) 4 SCC 98 produced the policy and guidelines test, which has prevailed over the narrower abdication test. Hamdard Dawakhana v. Union of India, AIR 1960 SC 554 is the standard instance of the limit being crossed. Krishna Iyer J. summarised the practical position in Avinder Singh v. State of Punjab, (1979) 1 SCC 137: delegation is a necessary evil, and the legislature is not an ideal instrument for prescribing the detail of modern administration.

The importance, argued from what statutes would do without their rules

The strongest way to show importance is counterfactual. Take four Indian statutes and ask what each would achieve if the legislature had to enact every detail itself.

The Digital Personal Data Protection Act, 2023 is the newest and the most instructive. It was enacted in August 2023 and did nothing at all until the Rules were notified on 13 November 2025, more than two years later. A framework statute that confers rights and imposes duties but cannot function until subordinate legislation is made shows both how completely the modern Act depends on its rules and the accountability gap that dependence creates, because the timing of the citizen's rights lay with the executive throughout.

From these, the classical reasons can be stated with evidence rather than as a list. Pressure on legislative time, since no House could pass the volume of prescription a single regulatory statute needs. Technicality, since the standards for a drug, a solvency margin, a spectrum condition or an accounting norm must be written by people who understand them. Flexibility, since a rule can be amended in days and an Act cannot. Emergency, as the pandemic showed. Experimentation and local variation, since a rule may be applied to one State or district first. And the framework statute pattern, in which the Act creates an institution and the regulations supply the law.

Use of the rulemaking power to escape a judicial holding is the fourth and is not hypothetical. The rules for tribunal appointments under Section 184 of the Finance Act, 2017 were struck down in Rojer Mathew v. South Indian Bank Ltd., (2019) 6 SCC 1; their successors in 2020 and 2021; and when the substance was enacted as primary legislation, that too was struck down in Madras Bar Association v. Union of India, decided 19 November 2025.

A seventh reason: delegated legislation as the vehicle of cooperative federalism

One important justification for the practice is rarely given and is peculiar to a federation: subordinate legislation is how the Union and the States legislate together on a subject neither controls alone.

The same technique appears elsewhere. Central Acts on subjects in the Concurrent List commonly provide model rules that States may adopt with modifications, and the environmental, food safety and disaster management regimes all operate through central rules applied by State authorities with State-level variation.

The administrative law point to draw from this is important and slightly uncomfortable. Delegated legislation is not only a convenience for a busy legislature; in a federation it is the instrument that makes a common national regime possible at all. But it also means that a large body of law binding citizens in every State is settled in a Council of ministers meeting in private and given effect by notification, with no laying requirement that bites after Atlas Cycle Industries Ltd. v. State of Haryana, (1979) 2 SCC 196 and no statutory duty of consultation. The federal benefit and the accountability deficit come from the same feature.

The two foundational delegation cases worked in full

The limit on delegation is usually asserted. It is worth working, because both cases turn on facts that make the doctrine intelligible.

Hamdard Dawakhana v. Union of India, AIR 1960 SC 554. The Drug and Magic Remedies (Objectionable Advertisements) Act, 1954 prohibited advertisements suggesting that a drug could cure the diseases and conditions specified in a schedule, and Section 3(d) added a residuary category, any other disease or condition which may be specified in the rules made under the Act. The Court struck that limb down as excessive delegation, on the ground that the Act laid down no principle by which the executive was to decide which further diseases should attract the prohibition, so what had been delegated was not the working out of a policy but the choice of the policy itself. Set beside Delhi Laws, the pair states the working test a candidate can actually apply in the hall: read the enabling section, and ask whether the statute tells you why the executive would add or subtract, or only that it may.

For full marks, cover: the concept briefly, and then do what the question asks, which is to cite examples. The strongest structure is to take five real Indian discretions and work each one, showing the statutory language that creates it, what the officer actually decides, and the case that controls it; then add a short catalogue of others; and then compress the grounds of review into the five questions a court asks, illustrated from those same examples. An essay on judicial review with no statute named in it does not answer this question.

The concept

Administrative discretion is the power to choose between courses of action each of which is lawful. It exists because no legislature can foresee every case, because much subject matter is technical, and because a rigid rule produces injustice in the individual case. Four statutory formulae create it: "may"; "is satisfied" or "has reason to believe"; open standards such as "in the public interest"; and "as may be prescribed".

Five discretions worked

One: preventive detention. The National Security Act, 1980 empowers the Central or State Government, or a District Magistrate so authorised, to detain a person if satisfied that it is necessary to prevent him from acting in a manner prejudicial to the security of the State or the maintenance of public order. This is the widest discretion Indian law confers on an executive officer, because it authorises imprisonment without trial on a prediction. Judicial control is procedural rather than substantive: in Khudiram Das v. State of West Bengal, (1975) 2 SCC 81 the Court held that the satisfaction must be based on material having a rational nexus with the object, that the grounds must be communicated so that the detenu can make an effective representation, and that a ground which is vague, irrelevant or non-existent vitiates the whole order even if other grounds are good.

Four: the award of a public contract. The evaluation of tenders involves judgment on price, technical capacity and past performance. Tata Cellular v. Union of India, (1994) 6 SCC 651 held that the government has freedom of contract and that the court reviews the decision making process rather than the decision, but that the process must be free of arbitrariness, bias and mala fides; Michigan Rubber (India) Ltd. v. State of Karnataka, (2012) 8 SCC 216 restated the test. The same principle governs the allotment of public resources: Centre for Public Interest Litigation v. Union of India, (2012) 3 SCC 1 cancelled 122 telecom licences allotted first-come-first-served, and the advisory opinion in Natural Resources Allocation, In re Special Reference No. 1 of 2012, (2012) 10 SCC 1 held that auction is not the only permissible method but the method must not be arbitrary.

A shorter catalogue

Licensing under the Arms Act, 1959, the excise statutes and municipal trade licensing; Dwarka Prasad Laxmi Narain v. State of Uttar Pradesh, AIR 1954 SC 224 struck down a coal control clause allowing exemption at the licensing officer's discretion because no standard confined it. Passports, where Section 10(3)(c) of the Passports Act, 1967 permits impounding "in the interests of the general public", structured by Maneka Gandhi v. Union of India, (1978) 1 SCC 248. Sanction to prosecute a public servant, formerly under Section 197 of the Code of Criminal Procedure, 1973 and now under the Bharatiya Nagarik Suraksha Sanhita, 2023. Proclamation under Article 356, made justiciable to the extent of examining relevance and good faith in S.R. Bommai v. Union of India, (1994) 3 SCC 1. Suspension of internet services, structured by Anuradha Bhasin v. Union of India, (2020) 3 SCC 637, which required orders to be published, reasoned, proportionate, temporary and periodically reviewed.

With what procedure? Natural justice applies wherever a decision affects rights, the classification of the function being no longer decisive (A.K. Kraipak v. Union of India, (1969) 2 SCC 262), and reasons must be given, because they are the links between the material and the conclusion (Union of India v. Mohan Lal Capoor, (1973) 2 SCC 836).

At what intensity? Ordinary administrative choices are reviewed on Wednesbury unreasonableness; where a fundamental right is restricted the court applies proportionality itself, which is the distinction drawn in Om Kumar v. Union of India, (2001) 2 SCC 386 and structured in Modern Dental College and Research Centre v. State of Madhya Pradesh, (2016) 7 SCC 353.

One more discretion, and the doctrine that limits its withdrawal

A discretion to grant a benefit carries with it a discretion to change the policy under which it was granted, and Indian law has a specific doctrine for that situation. The doctrine of legitimate expectation arises where a public authority has made a representation, or has followed a settled practice, such that a person may reasonably expect either a substantive benefit or at least a hearing before it is withdrawn.

The relevance to a question on discretion is direct. Most of the examples above concern the exercise of a discretion against a person. Legitimate expectation concerns the withdrawal of a benefit already being enjoyed, which is administratively the commonest grievance of all, in exemptions, subsidies, allotments, concessions and long-standing practices. The Indian answer is a procedural one, consistent with everything else in this branch: the administration may change its policy, and it must consider the expectation it has created and be able to explain why the public interest requires the change.

Conclusion. The five worked examples show how wide the field is, from a municipal licence to detention without trial and from a spectrum allocation to a presidential pardon, and they show that Indian law has never tried to remove the discretion from any of them. What it has done is three things, and each is visible in the cases. It has refused to treat the statutory language as conclusive, so "is satisfied" means satisfaction on material and "may" imports a duty to consider. It has attached procedure to the exercise, so grounds must be communicated, objections heard, orders published and reasons recorded. And through Article 14 it has made an unguided discretion a defect in the law itself, which is the one control English law cannot exercise because it has no written guarantee of equality to test the statute against.

Government departments are the State itself, acting through the President or the Governor under Articles 77 and 166. Their role is policy formulation, the framing of subordinate legislation, and the exercise of statutory discretion, and every provision of Part III applies to them directly.

Statutory corporations are created by their own Act and given separate legal personality, and their role is to run a public enterprise or service at arm's length from the ministry: the Life Insurance Corporation, the Oil and Natural Gas Commission, the State Electricity Boards. Sukhdev Singh v. Bhagatram Sardar Singh Raghuvanshi, (1975) 1 SCC 421 held that their regulations have the force of law and that they are State within Article 12, and Mathew J. supplied the reasoning that governs the whole field: 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 agency of the post-1991 State, and their role is to write the rules of a market, supervise compliance and adjudicate disputes: 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. Because each combines all three functions, the courts control them 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, holding a direction to investigate to be administrative so that reasons are required but no hearing; and Competition Commission of India v. Bharti Airtel Ltd., (2019) 2 SCC 521, giving the sectoral regulator priority on technical questions where jurisdictions overlap.

Constitutional and statutory watchdogs are the sixth form, and their role is to check administration rather than to administer: the Election Commission under Article 324, the Comptroller and Auditor General under Articles 148 to 151, the Public Service Commissions under Articles 315 to 323, and the commissions on human rights, women and children. Independence is the whole of their value, which is why the appointment of Election Commissioners after Anoop Baranwal v. Union of India, (2023) 6 SCC 161, and the statute of 2023 that replaced the Chief Justice on the selection committee with a Union Cabinet Minister, is the most contested question in this part of the subject and is still undecided.

(b) Taxing Power

Taxation is an inherent attribute of sovereignty, and the Indian Constitution conditions it more strictly than it conditions almost any other power. The governing provision is Article 265: no tax shall be levied or collected except by authority of law, which means an Act of a competent legislature. An executive order, a circular or an administrative instruction cannot impose a tax. This is among the oldest rule of law guarantees in the constitutional text, and its ancestry runs back through the English constitutional settlement to the principle that there is no taxation without representation.

A tax must be distinguished from a fee. Commissioner, Hindu Religious Endowments, Madras v. Sri Lakshmindra Thirtha Swamiar of Sri Shirur Mutt, AIR 1954 SC 282 held that a tax is a compulsory exaction for public purposes with no quid pro quo, while a fee is charged for a service and requires correlation between levy and service; the correlation was relaxed to a broad and general one in Sreenivasa General Traders v. State of Andhra Pradesh, (1983) 4 SCC 353.

The leading recent authority is a nine-judge decision. In Mineral Area Development Authority v. Steel Authority of India, decided 25 July 2024 by eight to one, the Supreme Court held that royalty on minerals is not a tax but a contractual consideration arising from the mining lease, so the power of State legislatures to tax mineral rights and mineral bearing land is not curtailed by the Mines and Minerals (Development and Regulation) Act, 1957. India Cement Ltd. v. State of Tamil Nadu, (1990) 1 SCC 12 was overruled. By a further order the Court declined to make the ruling purely prospective and allowed States to raise demands for periods from 1 April 2005, subject to conditions on recovery. The decision restores a substantial fiscal power to the mineral bearing States and turns on nothing more elaborate than which legislature the Constitution had actually empowered.

Conclusion. The two notes describe the modern State's two great capacities, to decide and to take. The variety of administrative agencies is the institutional record of a State that has changed technique three times since independence, from departmental administration to public enterprise to regulation, and the tests in Ajay Hasia and Pradeep Kumar Biswas exist so that the choice of legal vehicle cannot put public power beyond Part III. The taxing power is the older capacity and the more strictly conditioned, and the condition has never changed: Article 265 requires an Act, the essential legislative function doctrine limits how much of the burden may be settled by rule, and the largest recent decision in the field, in July 2024, was decided by asking which legislature the Constitution had empowered and nothing else.