LLB 3rd Semester Examination - December 2016
Administrative Law
(K-3003)
Section A
Note: Attempt all questions. Each question carries 4 marks
Administrative Law
(K-3003)
Section A
Note: Attempt all questions. Each question carries 4 marks
1. Explain the meaning of 'Separation of Power'.
The doctrine of separation of powers means that the three organs of the government, i.e., the executive, legislature and judiciary are separated and distinct. They cannot exercise the powers vested on other departments. These organs are independent of one another and do not encroach upon the authority given to other organs.
2. Define the meaning of 'Delegated Legislation'. What is its necessity?
Meaning of Delegated Legislation: Legislature can delegate its power to legislation to any subordinate agency. Exercise of legislative power by such subordinate agency is known as delegated legislation.
This subordinate body acquires power from the act of the legislature. Power is transferred from the principal lawmaker to the lower body, which may be the executive, cabinet, council of minister, or a specific administrative agency, by the mechanism of delegation. Generally, delegation refers to the act of entrusting another authority or empowering another to act as an agent or representative.
3. Explain and illustrate the meaning
of 'Reasoned Decision'.
A Reasoned Decision is a Decision, Order, Decree, Judgement or an Interlocutory Order of the Court in which stating the reason for the decision is mandatory. A reasoned decision serves the following purpose:
(i) Elimination of human error of omission or commission.
(ii) Gives a clarity to the judgement.
(iii) Reasoned decisions are almost always correct
(iv) Giving reasoned decisions is a part of Principles of Natural Justice
(v) Errors apparent on the face of record will be crystal clear when reasons of the decision is given and can be quashed in an appeal before an Appellate Court or by a Writ of Certiorari by a High Court or a Supreme Court.
A Reasoned Decision is a Decision, Order, Decree, Judgement or an Interlocutory Order of the Court in which stating the reason for the decision is mandatory. A reasoned decision serves the following purpose:
(i) Elimination of human error of omission or commission.
(ii) Gives a clarity to the judgement.
(iii) Reasoned decisions are almost always correct
(iv) Giving reasoned decisions is a part of Principles of Natural Justice
(v) Errors apparent on the face of record will be crystal clear when reasons of the decision is given and can be quashed in an appeal before an Appellate Court or by a Writ of Certiorari by a High Court or a Supreme Court.
4.
Explain the nature and scope of Writ
of 'Quo-Warranto'.
Writ of Quo-Warranto: Quo Warranto means by what warrant or authority. Quo Warranto writ is issued against any person who occupies a public authority without any qualification for the appointment. It is issued to restrain the authority or candidate from discharging the functions of public office. In University of Mysore v. Govinda Rao,12 the Supreme Court observed that the procedure of quo Warrato confers the jurisdiction and authority on the judiciary to control executive action in making the appointments to public offices against the relevant statutory provisions. It also protects a citizen being deprived of public office to which he may have a right.
Writ of Quo-Warranto: Quo Warranto means by what warrant or authority. Quo Warranto writ is issued against any person who occupies a public authority without any qualification for the appointment. It is issued to restrain the authority or candidate from discharging the functions of public office. In University of Mysore v. Govinda Rao,12 the Supreme Court observed that the procedure of quo Warrato confers the jurisdiction and authority on the judiciary to control executive action in making the appointments to public offices against the relevant statutory provisions. It also protects a citizen being deprived of public office to which he may have a right.
5.
Comment upon the working of Central
Administrative Tribunal.
Central Administrative Tribunal has been established for adjudication of disputes with respect to recruitment and conditions of service of persons appointed to public services and posts in connection with the affairs of the Union or other local authorities within the territory of India or under the control of Government of India and for matters connected therewith.
The Tribunal is governed by Administrative Tribunal Act, 1985. The tribunal has jurisdiction over Central Government employees along with employees of 45 other organisations notified by the Government of India. The tribunal, however, do not apply to members of armed forces and paramilitary forces, officers or employees of the Supreme Court, or to persons appointed to the Secretariat Staff of either House of Parliament or the Secretariat staff of State/Union Territory Legislatures.
Working of Central Administrative Tribunal
(i) The Tribunal is not bound to follow the procedures laid down in the Code of Civil Procedure 1908 or Evidence Act, but shall be guided by the principles of natural justice in deciding cases and the procedure.
(ii) The Central Administrative Tribunal is empowered to prescribe its own rules of practice for discharging its functions subject to the Administrative Tribunals Act, 1985 and Rules made there under. For this purpose, the Central Administrative Tribunal Rules of Practice, 1993 have been made.
(iii) Parties to the dispute may appear in person or be represented by a lawyer before the Tribunal. The Supreme Court has held in a case that the CAT must confine itself to the limits of judicial review.
(iv) No interim orders, whether by way of injunction or stay shall be made on an application unless copy of the application along with other documents are furnished to the party against whom such application is made and opportunity is given to such party to be heard in the matter.
(v) However ex-parte interim orders can be issued in exceptional cases valid for 14 days. In this case the administration should approach CAT within 14 days to put across their point of view and try for vacation of such interim stay orders.
Central Administrative Tribunal has been established for adjudication of disputes with respect to recruitment and conditions of service of persons appointed to public services and posts in connection with the affairs of the Union or other local authorities within the territory of India or under the control of Government of India and for matters connected therewith.
The Tribunal is governed by Administrative Tribunal Act, 1985. The tribunal has jurisdiction over Central Government employees along with employees of 45 other organisations notified by the Government of India. The tribunal, however, do not apply to members of armed forces and paramilitary forces, officers or employees of the Supreme Court, or to persons appointed to the Secretariat Staff of either House of Parliament or the Secretariat staff of State/Union Territory Legislatures.
Working of Central Administrative Tribunal
(i) The Tribunal is not bound to follow the procedures laid down in the Code of Civil Procedure 1908 or Evidence Act, but shall be guided by the principles of natural justice in deciding cases and the procedure.
(ii) The Central Administrative Tribunal is empowered to prescribe its own rules of practice for discharging its functions subject to the Administrative Tribunals Act, 1985 and Rules made there under. For this purpose, the Central Administrative Tribunal Rules of Practice, 1993 have been made.
(iii) Parties to the dispute may appear in person or be represented by a lawyer before the Tribunal. The Supreme Court has held in a case that the CAT must confine itself to the limits of judicial review.
(iv) No interim orders, whether by way of injunction or stay shall be made on an application unless copy of the application along with other documents are furnished to the party against whom such application is made and opportunity is given to such party to be heard in the matter.
(v) However ex-parte interim orders can be issued in exceptional cases valid for 14 days. In this case the administration should approach CAT within 14 days to put across their point of view and try for vacation of such interim stay orders.
Section B (10 marks)
6. Define the term Administrative Law. Discuss the nature
and purpose of Administrative Law.
Administrative law is the law that governs the powers, functions and duties of the government administrative authorities. This law defines the power of the ordinary courts to supervise administrative authorities to ensure that the executive treats the public fairly.
Administrative law is a uncodified public law which is judge-made and has evolved over times. It deals with the relationship of individuals with the government. It determines the organisation and power structure of administrative and quasi-judicial authorities to enforce the law. It is primarily concerned with official actions and procedures and puts in place a control mechanism by which administrative agencies stay within bounds.
7. Discuss briefly 'Rule Against Bias' with relevant Indian Cases.
(4) Departmental Bias
Doctrine of Necessity:
Ans: An ombudsman or public advocate is an official who is charged with representing the interests of the public by investigating and addressing complaints of maladministration or a violation of rights. The ombudsman is usually appointed by the government or by parliament, but with a significant degree of independence.
The typical duties of an ombudsman are to investigate complaints and attempt to resolve them, usually through recommendations (binding or not) or mediation. Ombudsmen sometimes also aim to identify systemic issues leading to poor service or breaches of people's rights. At the national level, most ombudsmen have a wide mandate to deal with the entire public sector, and sometimes also elements of the private sector (for example, contracted service providers).
The Government of India has designated several ombudsmen (sometimes called Chief Vigilance Officer (CVO)) for the redress of grievances and complaints from individuals in the banking, insurance and other sectors being serviced by both private and public bodies and corporations.[77] The CVC (Central Vigilance Commission) was set up on the recommendation of the Santhanam Committee (1962–64).
Lokpal
In India, the Ombudsman is known as the Lokpal or Lokayukta. An Administrative Reforms Commission (ARC) was set up on 5 January 1966 under the Chairmanship of Shri Morarji Desai. It recommended a two-tier machinery: Lokpal at the Centre (parliamentary commissioner, as in New Zealand) and one Lokayukta each at the State level for redress of people's grievances. However, the jurisdiction of the Lokpal did not extend to the judiciary (as in case of New Zealand). The central Government introduced the first Lokpal Bill, Lokpal and Lokayuktas Bill in 1968, and further legislation was introduced in 2005. Final bill, after all the amendments, has been passed in Rajya Sabha on 17 December 2013 and passed in Loksabha on 18 December 2013.
Lokayuka
The state-level Lokayukta institution has developed gradually. Orissa was the first state to present a bill on establishment of Lokayukta in 1970, but Maharashtra was the first to establish the institution, in 1972. Other states followed: Bihar (1974), Uttar Pradesh (1977), Madhya Pradesh (1981), Andhra Pradesh (1983), Himachal Pradesh (1983), Karnataka (1984), Assam (1986), Gujarat (1988), Delhi (1995), Punjab (1996), Kerala (1998), Chhattishgarh (2002), Uttaranchal (2002), West Bengal (2003) and Haryana (2004). The structure of the Lokayukta is not uniform across all the states. Some states have UpaLokayukta under the Lokayukta and in some states, the Lokayukta does not have suo moto powers of initiating an inquiry.
Administrative law is the law that governs the powers, functions and duties of the government administrative authorities. This law defines the power of the ordinary courts to supervise administrative authorities to ensure that the executive treats the public fairly.
Administrative law is a uncodified public law which is judge-made and has evolved over times. It deals with the relationship of individuals with the government. It determines the organisation and power structure of administrative and quasi-judicial authorities to enforce the law. It is primarily concerned with official actions and procedures and puts in place a control mechanism by which administrative agencies stay within bounds.
7. Discuss briefly 'Rule Against Bias' with relevant Indian Cases.
Rule against bias means that the deciding authority must be
composed of impartial persons acting fairly, without prejudice and bias. The
maxim is “Nemo in propria causa judex , esse debet”, which means no one should be made a judge in
his own cause. It is the minimum requirement of natural justice system.
The rule against bias can be applied to those factors which may influence a judge for a biased decision. This rule is based on the premises that it is against the human psychology to decide a case against his own interest. The basic objective of this rule is to ensure public confidence in the impartiality of the administrative adjudicatory process.
Types of bias:
(1) Personal Bias
(2) Pecuniary Bias
(3) Subject Matter Bias
(4) Departmental Bias
(5) Preconceived Notion Bias
(6) Bias On Account Of Obstinacy.
(1) Personal Bias:
Personal bias arises out of the personal or professional relationship. This may be of friendship or hostility between the authority and the parties. In Mineral Development Corporation Ltd. V. State of Bihar, the Supreme Court decision serves as a good illustration on the point. Here, the petitioners were granted a mining lease for 99 years in 1947. But in 1955, government quashed the license. The petitioners brought an action against the minister passing this order on behalf of government, on the ground that, the petitioner in 1952 opposed the minister in General election. Therefore, on account of political rivalry, the minister passed such an order, and hence the order was suffered from personal bias. Supreme Court found the allegation to be true and thus quashed the said order. Similarly in Baidyanath Mohapatra v. state of Orissa, the Supreme Court quashed the order of the tribunal confirming premature retirement on the ground that the chairman of the tribunal was also a member of the review committee which had recommended premature retirement.
Test For Personal Bias:
(a) Reasonable Suspicion Of Bias: looks mainly to outward appearance.
(b) Real Likelihood Of Bias: Focuses on courts own evaluation of possibilities.
In both the situations, the court sees whether there is reasonable ground for believing that the deciding officer was likely to be biased, as it is very difficult to prove a persons state of mind.
In the case of Jiwan K. Lohia v. Durga Dutt Lohia, the apex court observed that it is not whether the bias has affected the judgment, but whether a litigant could reasonably apprehend that a bias attributable might have operated against him in the final decision. Therefore the real test for likelihood of bias is whether a reasonable person in possession of relevant information, would have tho ught that bias was likely and whether the authority concerned was likely to be disposed to decide a matter in a particular manner.
(2) Pecuniary Bias:
The rule against bias can be applied to those factors which may influence a judge for a biased decision. This rule is based on the premises that it is against the human psychology to decide a case against his own interest. The basic objective of this rule is to ensure public confidence in the impartiality of the administrative adjudicatory process.
Types of bias:
(1) Personal Bias
(2) Pecuniary Bias
(3) Subject Matter Bias
(4) Departmental Bias
(5) Preconceived Notion Bias
(6) Bias On Account Of Obstinacy.
(1) Personal Bias:
Personal bias arises out of the personal or professional relationship. This may be of friendship or hostility between the authority and the parties. In Mineral Development Corporation Ltd. V. State of Bihar, the Supreme Court decision serves as a good illustration on the point. Here, the petitioners were granted a mining lease for 99 years in 1947. But in 1955, government quashed the license. The petitioners brought an action against the minister passing this order on behalf of government, on the ground that, the petitioner in 1952 opposed the minister in General election. Therefore, on account of political rivalry, the minister passed such an order, and hence the order was suffered from personal bias. Supreme Court found the allegation to be true and thus quashed the said order. Similarly in Baidyanath Mohapatra v. state of Orissa, the Supreme Court quashed the order of the tribunal confirming premature retirement on the ground that the chairman of the tribunal was also a member of the review committee which had recommended premature retirement.
Test For Personal Bias:
(a) Reasonable Suspicion Of Bias: looks mainly to outward appearance.
(b) Real Likelihood Of Bias: Focuses on courts own evaluation of possibilities.
In both the situations, the court sees whether there is reasonable ground for believing that the deciding officer was likely to be biased, as it is very difficult to prove a persons state of mind.
In the case of Jiwan K. Lohia v. Durga Dutt Lohia, the apex court observed that it is not whether the bias has affected the judgment, but whether a litigant could reasonably apprehend that a bias attributable might have operated against him in the final decision. Therefore the real test for likelihood of bias is whether a reasonable person in possession of relevant information, would have tho ught that bias was likely and whether the authority concerned was likely to be disposed to decide a matter in a particular manner.
(2) Pecuniary Bias:
Pecuniary bias arises out financial or material interest howsoever
small it may be. In Jeejeebhoy vs.
Astt. Collector,Thana the CJ reconstituted the bench, when it was found
that one of the members of the bench was the member of the cooperative society
for which the land has been acquired. But this rule is not applicable where the
judge, though having a financial interest, has no direct financial interest in
the outcome of the case.
(3) Subject Matter Bias
The situations where the deciding officer is directly or
indirectly in the subject matter of the case. The Supreme Court in cases
like Murlidhar v. Kadam Singh and Sub – committee of Judicial Accountability
v. Union of India followed that deciding officer is part of the subject
matter. But in Gulla Palli
Nageshwara Rao v. APSRTC, the Supreme Court quashed the decision of Andhra
Pradesh government. Nationalizing road transport on the ground that the secretary
of the transport department who was given a hearing was interested in the
subject matter.
(4) Departmental Bias
The problem of departmental bias is something which is inherent in
the administrative process, and if it is not effectively checked, it may negate
the very concept of fairness in the administrative proceeding.
In Gullapalli Nageswara Rao v. APSRTC the order of the government nationalizing road transport was challenged in this case. One of the grounds for challenge was that the Secretary of the Transport Department who gave the hearing was biased, being the person who initiated the scheme and also being the head of the department whose responsibility it was to execute it. The court quashed the order on the ground that, under the circumstances, the Secretary was biased, and hence no fair hearing could be expected.
The problem of departmental bias arises in different context- when the functions of judge and prosecutor are combined in the same department. It is not uncommon to find that the same department which initiates a matter also decides it, therefore, at times, departmental fraternity and loyalty militates against the concept of fair hearing.
(5) Preconceived Notion Bias
In Gullapalli Nageswara Rao v. APSRTC the order of the government nationalizing road transport was challenged in this case. One of the grounds for challenge was that the Secretary of the Transport Department who gave the hearing was biased, being the person who initiated the scheme and also being the head of the department whose responsibility it was to execute it. The court quashed the order on the ground that, under the circumstances, the Secretary was biased, and hence no fair hearing could be expected.
The problem of departmental bias arises in different context- when the functions of judge and prosecutor are combined in the same department. It is not uncommon to find that the same department which initiates a matter also decides it, therefore, at times, departmental fraternity and loyalty militates against the concept of fair hearing.
(5) Preconceived Notion Bias
Bias arising out of preconceived notions is a very delicate
problem of administrative law. On the one hand, no judge as a human being is
expected to sit as a blank sheet of paper, on the other hand, preconceived
notions would vitiate a fair trial. A classic case bringing this problem to the
forefront is Franklin v. Minister of Town
and Country Planning known as Stevenage case. This point came up for
consideration before the Supreme Court in T. Govindaraja Mudaliar v. State of T.N, the government
decided in principle to nationalize road transport and appointed a committee to
frame the scheme. The Home Secretary was made a member of this committee. Later
on, the scheme of nationalization was finalized, published and objections were
heard by the Home Secretary. It was contended that the hearing was vitiated by
the rule against bias because the Secretary had already made up his mind on the
question of nationalization as he was a member of the committee which took this
policy decision. The court rejected the challenge on the ground that the Secretary
as a member of the committee did not finally determine any issue as to
foreclose his mind. He simply helped the government in framing the scheme.
(6) Bias on Account of Obstinacy
The word Obstinacy implies unreasonable and unwavering
persistence and the deciding officer would not take no for an answer. This new
category of bias was discovered in a situation where a judge of the Calcutta
High Court upheld his own judgment while sitting in appeal against his own
judgment. Of course a direct violation of the rule that no judge can sit in
appeal against his own judgment is not possible, therefore, this rule can only
be violated indirectly. In this case in a fresh writ petition the judge
validated his own order in an earlier writ petition which had been overruled by
the Division Bench. What applies to judicial process can be applied to
administrative process as well.
Doctrine of Necessity:
Bias would not disqualify an officer from taking an action if no
other person is competent to act in his place. This exception is based on the
doctrine which it would otherwise not countenance on the touchstone of judicial
propriety. The doctrine of necessity makes it imperative for the authority to
decide and considerations of judicial propriety must yield. It can be invoked
in cases of bias where there is no authority to decide the issue. If the
doctrine of necessity is not allowed full play in certain unavoidable
situations, it would impede the course of justice itself and the defaulting
party would benefit from it. If the choice is between either to allow a biased
person to act or to stifle the action altogether, the choice must fall in favor
of the former as it is the only way to promote decision-making. Therefore, the
Court held that bias would not vitiate the action of the Speaker in impeachment
proceedings and the action of the Chief Election Commissioner in election
matters.
However, the term bias must be confined to its proper place. If bias arising out of preconceived notions means the total absence of preconceptions in the mind of the judge, then no one has ever had a fair trial, and no one ever will. Therefore, unless the strength of the preconceived notions is such that it has the capacity of foreclosing the mind of the judge, administrative action would not be vitiated.
8. Write a short note on the institute of Ombudsman.However, the term bias must be confined to its proper place. If bias arising out of preconceived notions means the total absence of preconceptions in the mind of the judge, then no one has ever had a fair trial, and no one ever will. Therefore, unless the strength of the preconceived notions is such that it has the capacity of foreclosing the mind of the judge, administrative action would not be vitiated.
Ans: An ombudsman or public advocate is an official who is charged with representing the interests of the public by investigating and addressing complaints of maladministration or a violation of rights. The ombudsman is usually appointed by the government or by parliament, but with a significant degree of independence.
The typical duties of an ombudsman are to investigate complaints and attempt to resolve them, usually through recommendations (binding or not) or mediation. Ombudsmen sometimes also aim to identify systemic issues leading to poor service or breaches of people's rights. At the national level, most ombudsmen have a wide mandate to deal with the entire public sector, and sometimes also elements of the private sector (for example, contracted service providers).
The Government of India has designated several ombudsmen (sometimes called Chief Vigilance Officer (CVO)) for the redress of grievances and complaints from individuals in the banking, insurance and other sectors being serviced by both private and public bodies and corporations.[77] The CVC (Central Vigilance Commission) was set up on the recommendation of the Santhanam Committee (1962–64).
Lokpal
In India, the Ombudsman is known as the Lokpal or Lokayukta. An Administrative Reforms Commission (ARC) was set up on 5 January 1966 under the Chairmanship of Shri Morarji Desai. It recommended a two-tier machinery: Lokpal at the Centre (parliamentary commissioner, as in New Zealand) and one Lokayukta each at the State level for redress of people's grievances. However, the jurisdiction of the Lokpal did not extend to the judiciary (as in case of New Zealand). The central Government introduced the first Lokpal Bill, Lokpal and Lokayuktas Bill in 1968, and further legislation was introduced in 2005. Final bill, after all the amendments, has been passed in Rajya Sabha on 17 December 2013 and passed in Loksabha on 18 December 2013.
Lokayuka
The state-level Lokayukta institution has developed gradually. Orissa was the first state to present a bill on establishment of Lokayukta in 1970, but Maharashtra was the first to establish the institution, in 1972. Other states followed: Bihar (1974), Uttar Pradesh (1977), Madhya Pradesh (1981), Andhra Pradesh (1983), Himachal Pradesh (1983), Karnataka (1984), Assam (1986), Gujarat (1988), Delhi (1995), Punjab (1996), Kerala (1998), Chhattishgarh (2002), Uttaranchal (2002), West Bengal (2003) and Haryana (2004). The structure of the Lokayukta is not uniform across all the states. Some states have UpaLokayukta under the Lokayukta and in some states, the Lokayukta does not have suo moto powers of initiating an inquiry.
Section C (20 marks)
9. What are different types of Administrative functions.
10. Write a critical note on doctrine of 'Legitimate Expectations'.
11. Discuss the objective of the Writ of Mandamus. Against whom or on what grounds it can be issued? refer to case law.
12. Discuss in detail, Government privilege to withhold evidence in public interest.
13. Comment upon the institution of 'Lokayukta'. Explain its functions and powers.
No comments:
Post a Comment