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Submitted by

Asha Sreedhar (17010324010)

Div: C Batch: 2017-2022


Symbiosis Law School, Hyderabad

(Symbiosis International Deemed University, Pune)


September, 2019

Under the guidance of

Prof. Priyanka Mohod

Assistant Professor


The project entitled “Judicial Control over Administrative Delegated Power- A detailed
Study through Various Cases” submitted to Symbiosis Law School, Hyderabad as part of
Internal Assessment of Administrative Law is based on my original work carried out
under the guidance of Prof. Priyanka Mohod

The Research work has not been submitted elsewhere for award of any degree.

The material borrowed from other sources and incorporated in the research has been
duly acknowledged.

I understand that I could be held responsible and accountable for plagiarism, if any,
detected later on.

Date: 27th September, 2019

Signature of the Candidate














1. A.T. Markose, Judicial Control of Administrative of India

2. Academic Press and Publishers Ltd.
3. Ajanta Prakashan.
4. Bagawati Prosad Banerjee, Writ Remedies, (1999), Wadhwa, Nagpur.
5. Bangladesh Perspective. Dhaka: Rico Printers.
6. Brown and Garner - French Administrative Law - (1973) Chs. 7 & 9
7. Concepts & Cases, 2nd Ed. California: Mayfield Publishing Company.
8. Cooper, F.E. (1965; 32), State: Administrative Law, 1. New York : The Babbes Merril
9. Davis - Administrative Law - Text Chs. 4, 11, 12 & 18-20
10. De Smith, Judicial Review of Administrative Action (1995), Sweet and Maxwell.
11. Fazal - Judicial Control of Administrative Action in India and Pakistan (1969)
12. Freeman, J. Lepier (1952; 10-19), The Bureaucracy in Pressure Politics. Annals of
13. Griffith, L.A.G & Street, H. (1967; 19), Principle of Administrative Law. London:
14. Halim, M.A. (1998; 71-72), Constitution, Constitutional Law and Politics:
15. I.P. Massey, Administrative Law (1995), Eastern, Lucknow.
16. Jaffe - Judicial Control of Administrative Action
17. Jain & Jain, Principles of Administrative Law (1986), Tripathi
18. Jain and Jain - Principles of Administrative Law (1993) Chs 7, 8, 13, 14 & 15.
19. Jain, M.P. & Jain, S.M. (1981; 273), Principles of Administrative Law. Bombay :
20. Lutrin, Carld E. & Settle, Allenk (1980; 297-304), American Public Administration
21. M.P. Jain, Cases and Materials on Administrative Law (1996), Vol.I, Wadha, Nagpur.
22. M.P.Jain, The Evolving Indian Administrative Law (1983), Tripathi, Bombay
23. Massey, I.P. (2001; 54), Administrative Law. Lucknow: Eastern Book Company.
24. N.M. Tripathi Private Ltd.
25. New York : Ronald Press Co.
26. Obaidullah, A.T.M. (1999; 140-175), Bangladesh Public Administration. Dhaka:
27. Pfiffner, John M. & Presthus Robert (1953; 504-520), 10. Public Administration, 3rd Ed.
28. S.P. sathe, Administrative Law (1998), Butterworths, India.
29. Sachdeva & Gupta (1995; 307-310), A Simple Study of Public Administration, Delhi :
30. Schwartz and Wade - Legal Control of Government Chs. 9-12
31. Sir Isaac Piton and Sons Ltd.
32. Takwani, C,K. (2001; 39), Lectures on Administrative Law. Lucknow: Eastern Book


Public Administration exercises a large volume of power to meet the citizens need in modern democratic
welfare state. Today administration is not concerned with only pure administrative function but also
involved with a large number of quasi-judicial functions. For this respect they have a number of chances
to become arbitrary or master of the citizens. So it is very necessary to control them. The existing control
systems are legislative, executive and judicial. This is inclusive only of judicial control over
administration. To analyse judicial control over administration we must seek to what extent
administration exercise its power and the sources of the power. The problems created by administration
in exercising its power which enables us to approach the judicial remedies available against
administration in USA, UK.

The Indian Constitution has established a Welfare State1 which mandates that the State shall legislate on
innumerable activities touching human lives in order to promote the ‘maximum happiness of the
maximum number of people’. 2 Consequently the State has to undertake legislation on a variety of
subjects. In view of this increasing legislative activity, the legislatures will not find adequate time to
legislate on every minute detail and limit themselves to ‘policy matters and leaving a large volume of
area to executives to frame rules to carry out the purposes of legislation. Thus, the need for delegation
became indispensable and it was sought to be justified on grounds of ‘speed’, flexibility and adoptability’. 3
The application of law to changing circumstances was made feasible through the instruments of ‘rules’
framed by the executive. It is not a surprise to find that during the years (1973-77) spanning a period of 4
years Parliament enacted 300 statutes but the rules framed by the executive. This has been observed in
the Arvind Singh’s case.4

Keywords: Administration, Citizen’s Rights and Judicial Control.

1Bharat Bank Vs. Employees of Bharat Bank, AIR 1950 SC, P.306
2Bentham’s Theory of Utility.
3 See for details Erskire May, ‘Parliamentary practice’ 24 th edition Lexis Nexus p.669
4 AIR 1979 SC P 321


“Legislatures delegating their powers must bear the obligation of ensuring that the delegate does not o
verride the lawful domain and commit a breach by exceeding or abusing the delegated powers.
The legislatures must therefore control the delegated legislation and, if not, executives can exercise th
e delegated power to become a potential dictator or even to become a parallel legislature.” This
legislative control over delegated legislation has become a ‘living continuity as Constitutional
necessity’5 The rule of majority in democratic systems have virtually made legislative controls
ineffective. A similar statement is found in Wade & Forsyth6.
A more serious observation has been made by Mr. Lloyd George to the effect that ‘legislatures have no
control over the executive”. All these observations are pointers to the view that had the Parliamentary
control over delegated legislature been effective, the need for judicial control would not have arisen or
probably reduced to the minimum. This has not been so, hence, judicial control has become an
inevitable necessity to prevent executives acting as super-legislatives or potential dictators. 7 Pre-
constitutional control to post-constitutional judicial control found a big shift from the scrutiny of
delegated legislation confined to the area of sub-delegation from British Parliament to Indian
legislature8 and laying down a fundamental principle of delegation in post- constitutional era 9 which
can be stated as follows:
Legislatures cannot delegate their essential legislative powers. Essential legislative powers relate to
the determination of the policy of the legislature and of rendering that policy into a binding rule of
conduct. 10
In other words, legislative power delegation may be limited to nonessential or subsidiary issues. It
would be invalid to delegate legislative power or vital nature. This has become a fist principle laid
down in the region of judicial control and has subsequently been extended to a number of laws
established by the judiciary.
Administrative law is mainly a judge-made law and has secured its present features through a
myriad of judicial decisions. The historical evolution of the judicial agencies reviewing administrative
procedures, jurisdictional aspects of administrative decision making subjected to review, the grounds
on which decisions are challenged, the scope of review of delegated legislation and the limitations on
the judicial review of administrative action are to be studied in detail in this course. The procedural
fairness is the key to good administrative decision and the various remedies rendered in judicial
5 Justice Krishna iyer’s observation in Aravind Singh’s case, Supra P.175
6 See, Administrative Law (2009) 764-765
7 C.K.Takwani ‘Lecturers on Administrative Law’ 5th Edition 2012 P 172
8 Empress v. Burah (1877) 3 Cal. P.63
9 In Re Delhi Law Act case AIR 1951 SC P 332
10 Ibid

process clear the way for achieving administrative justice. The ever increasing number of delegated
legislation in the form of rules, regulations, circulars and general orders has the characteristics of law,
which though framed by administration, impose burden on the rights of citizens. Keeping this specie
of administration beyond judicial review is neither in the interests of the general public nor for laying
down standards of administrative behaviour.
Since, ‘judicial Review’ forms an important feature of basic structure of the Constitution; it cannot be
taken away even by an amendment to the constitution. This has now raised a few problems relating to
judicial control over delegated legislation.


The study is collected from national and international journals, books and publications from various
websites which give importance to the abolition of death sentence under international law.


The researcher has referred books, research articles, unpublished thesis and e-sources as a part of
secondary sources for the writing of the project.


Administrative law concerns itself more on the executives whereas constitutional law is all embracing
that is to say the concerns of everyone – it addresses everything except nothing. The other difference
between constitutional law and administrative law is that constitutional law covers the national
legislative powers, topics , functions of government hierarchy and status of courts of law, limits of
personal liberty and rights of individuals, law of citizenship and status of aliens, status of national
institutions such as Universities, Army, Police and Prisons whereas administrative law covers the legal
framework of government, administrative functions, judicial control that is courts must ensure that
there is rule of law, discretionary power, natural justice (equity), remedies and liabilities, legislative
and adjudicative procedures. The literature of the last ten years contains numerous references to two
opposite trends: on one hand, the end of administrative law, on the other, the “new administrative
law.” According to the first body of literature, which is mainly of French and Belgian origins,
administrative law has lost its peculiarities (thus giving rise to the increasing difficulty in defining its
status and scope); it has become a hybrid, has been destabilized and destructured, and is now in ruins.
This situation is—according to this narrative—the product of various, conflicting causes:
globalization, constitutionalization, destatization, privatization and decentralization. As a result of the
pressures stemming from these diverse trends, administrative law is slowly losing its raison d’être—
its center: the state. 11

“On the contrary a new administrative law is developing due to a process of change, modernatization
and reform. This new or post modern administrative law is more open than the old administrative
law, and is focused on steering rather than on ordering. ”

11 Jean-Bernard Auby, La bataille de San Romano. Réflexions sur les évolutions récentes du droit administratif [The Battle
of San Romano. Reflections on the Recent Developments in Administrative Law],

1. To know about the role of the Judiciary for controlling the administrative power.
2. To briefly study on the judicial control over the administrative delegated power.
3. To study how it protects the citizens right and an overview for administrative rights.
4. To study the situations of the Judiciary for controlling the administrative power with various
case laws.
5. The historical evolution of the judicial agencies reviewing administrative procedures,
jurisdictional aspects of administrative decision making subjected to review, the grounds on
which decisions are challenged, the scope of review of delegated legislation and the limitations
on the judicial review of administrative action are to be studied in detail in this course


1. How to make the Judiciary responsible for exceeding its legitimate limits?
2. How to ensure that judiciary acts only in cases where the delegated legislation assumes the
character of its being a super-legislatures or parallel legislature?
3. How to ensure that judicial control to preserve the ‘rule of law’.


“Administrative Law is the law regarding the exercise of powers by public authorities. That authority must
have a legislative role or the policies must be developed through the legislature, it must understand that it
has constitutional and judicial constraints and finally it is a buffer between the judicial and the executive
branch of government. With that being said it must be stated that in the entire public service no written
policy on the re-enlistment of persons exists, however; there are several precedents that has been set
hence, the legitimate expectations of police officers. Administrative law is the law that determines the
organization’s powers and duties of administrative officers. It is the law relating to the administrative
government. It concerns itself with public authorities and how they function. Administrative law is the
body of general principles that govern the exercise of power by authorities. Wade defines Administration
Law as the Law relating to control of government power. Furthermore, the primary purpose of
administrative law is to keep the powers of government within their legal bounds, so as to protect the
citizen against their abuse. Administrative law works hand in hand with Constitutional law which is the
law that establishes the state and its institutions. In Overview of this topic Administrative law concerns
itself with public authorities and how they function with its vast implementations of general principles
that govern the exercise of power by authorities. Whereas constitutional law is a system of laws, customs,
conventions which define the composition and powers of the state and regulates the activities of various
state and regulates the activities of various state organs on one hand and private citizens on the other. Like
constitutional law administrative law deals with the control and exercise of power by government. The
distinction between the two can be drawn by the fact that constitutional law is mainly concerned with the
structure and composition of primary organs of government. Whereas administrative law is concerned
with the work of officials or agencies in providing services and regulating the activities of citizens.
Administrative and constitutional law differs in their scope and purpose, constitutional law plays a large
part in administrative law. Administrative law concerns itself more on the executives whereas
constitutional law is all embracing that is to say the concerns of everyone – it addresses everything except
nothing. ”


“In modern times the administrative process as a by product of intensive form of government cuts
across the traditional forms of governmental powers and combines into one all the powers which
were traditionally exercised by three different organs of the state. In Halsbery's Laws of England also
it is stated that howsoever the term the Executive' or 'the Administration' is employed, there is no
implication that the functions of the executive are confined exclusively to those of an executive or
administrative character. Today, the executive performs variegated functions, viz. to investigate, to
prosecute, to prepare and to adopt schemes, to issue and cancel licences, etc. (administrative); to
adjudicate on disputes, to impose fine and penalty, etc. (Judicial); to make rules, regulations and bye
laws, to fix prices etc. (Legislative). Schwartz rightly states that rulemaking (quasi-legislative) and
adjudication (quasi-judicial) have become the chief weapons in the administrative armoury (Takwani,
2001; 39). ”

To what extent power is exercised by the administration?

Thus, Speaking generally, an administrative action can be classified into four categories;
1. Rule - making action or quasi-legislative action;
2. Rule decision action or quasi-judicial action;
3. Rule-application action or administrative action; and
4. Ministerial action.
We can define the above forms of administrative action by the way: The legislative power as the
power to create rights, powers, privileges or immunities and their correlatives as well as status, not
dependent upon any previous rights, duties etc. (or for the first time), that is apparently, the power of
certain antecedent legal capacities and liabilities. Judicial power as the power to create some right or
duty dependent upon a previous right or duty that is apparently the power to create remedial legal
capacities and liabilities. Administrative power is the power, which is concerned mostly with the
management and execution of public affairs. And the Ministerial power is that power of the
administration which is taken as a matter of duty imposed upon it by the law devoid of any discretion
or judgment. “Therefore a ministerial action involves the performance of a definite duty in respects of
which there is no choice. Collection of revenue may be one such ministerial action. ”
The above functions or power exercised by the following four ways mainly:
1. Rule making or Quasi-legislative action is exercised by the power of delegated legislation.
2. Rule decision or Quasi judicial action is exercised by the administrative adjudicating power.
3. Rule application or pure administrative action is exercised by the discretionary power.

4. On the other hand ministerial power is one where law prescribes that the duty will be
performed in certain and specific terms and leaves nothing to discretion (Jain and Jain, 1981;
273 & Obaidullah, 1999; 141).
What are the Sources of Administrative Power?
Since World War II, American administration has acquired increasing authority and power in the
formulation and implement of public policy (Lutrin & Settle, 1980; 297). Administration derives its
power from five major sources: 1) Public constituents and Interest group, 2) The legislature branch of
government, 3) The executive branch of government, 4) The Expertise of its personnel, and 5) A
massive, multilevel civil service system. (Some writers suggest, in addition, the strategic position of
public administration and its discretionary powers in carrying out policy). These are not mutually
exclusive categories; an administrative agency can use any combination of them to further its growth
and goals. Moreover, sources of power vary from agency to agency and at different levels of
a. Constituency and interest group support: “A government agency must have the support, or
at least the acquiescence, of some constituency to become established and to service. The
constituency may consist of the general public, of special interest groups, or of both. A public,
constituency provides administration with power at any level of government as long as citizens
demand an increasing number of services from government agencies. Discovery that use of the
drug thalidomide by pregnant women can causes fetal deformities, for example, aroused a
tremendous public outcry against the dangers of improperly tested drugs. While this, event not
only justified the existence of food and Drug Administration (FDA) but also helped it to obtain a
large budget for drug testing, it is among the rare instances in which regulatory activity has
gained widespread popular attention. More often, the public’s attitude toward individual
government agencies is merely vague and apathetic. ”

“Special interest groups, on the other hand are issue oriented, react selectively to government
policy, and frequently have a far greater effect than the public utility commissions, for example,
experience considerable pressure from local utility companies to set favourable rates.
Independent agencies, such as the small Business Administration and Farm credit.
Administration perform services that benefit special interest groups and other governmental
bureaus alive, Government corporations such as the Federal Home Bank Board title wise
perform specific tasks that arouse support or opposition among as issue oriented segment of
the business community. ”

b. Legislative Support: “Several competent writers have described how bureaucracy obtains
legislative support is its ratio of success in gaining desired budget allocations. An agency like
the FBI, which is highly regarded by congress, is likely to receive, necessary allocations of
money, although high visibility is not required for agencies to enjoy congressional respect; the
Treasury Department’s Bureau of Customs and Bureau of Public Debt both have strong
congressional support. ”

“For administrative agencies, some evidence of legislative support is to be found in the

enabling law, the Legislative grants of power that serves at the same time as controlling device.
Control is exercised by the agency’s awareness that congress can withdraw legal or monetary
support, delay funds or nomination approvals, or initial potentially embarrassing
investigations of agency activities still strong. Support from appropriations committees helps
to ensure an agency’s survival in the face opposition from other agencies, loss of constituency
support or loss of support from other branches of government.”

c. Executive’s Support: Concentrated as they are with the control of resources, agencies within
the executive branch generally possess considerable power. The civil service commission
controls personnel regulations. The General Services Administration constructs and operates
the majority of government buildings. The office of management and Budget (OMB) not only
controls major resources but has substantial power owing to the size and expertise of its staff.

d. “Reorganized from the Bureau of the Budget in 1970, the OMB serves as presidential aide in
budget preparation and guardian of the federal budget. Its public administration specialists,
lawyers, economists and political scientists act as presidential shock troops in modifying or
eliminating federal programs. Because other executive agencies must clear their
communications with congress through the OMB to assure their consistency with the
president’s policy goals, these other agencies may be said to constitute the OMB’s


Judicial review of administrative action is perhaps the most important development in the field of
public Law in the second half of this century. Judicial review is a great weapon in the hands of judges.
It comprises the power of a court to hold unconstitutional and unenforceable any law or order based
upon such law or any other action by a public authority which is inconsistent or in conflict with the
basic law of the land (Takawani, 2001; 236).

“By judicial control is meant the power of the courts to examine the Legality of the officials act and
thereby to safeguard the fundamental and other essential rights of the citizens. The underlying object
of judicial review is to ensure that the authority does not abuse its power and the individual receives
just and fair treatment and not to ensure that the authority reaches a conclusion, which is correct in
the eye of law. The role of judiciary in protecting the citizens against the excess of officials has become
all the more important with the increase in the powers and discretion of the public officials in the
modern welfare states. But the courts cannot interfere in the administrative activities of their own
accord. They can intervene only when they are invited to do so by any person who feels that his right
have been abrogated or are likely to be abrogated as a result of some action of the public official.
Secondly, the courts cannot interfere in each and every administrative act, as too much of Judicial
action may make the official too much conscious and very little of it may make them negligent of the
rights of citizens. “

“In the words of Mr. L.D. White, "At one extreme, the vigour of judicial control may paralyse effective
administration, at the other the result may be offensive bureaucratic tyranny, exactly where the
balance may be best struck is a major problem of judicial administrative relationship. Now we discuss
the judicial control system in USA, U.K. and Bangladesh.”

Finality of Administrative Decisions: Although the Supreme Court has been content to permit a
large degree of administrative finality in old and tested fields where accepted principles and
techniques of regulation prevail, it maintains a watchful eye even on such venerable agencies as the
Interstate commerce commission. For example in a session the court consistently upheld
administrative determinations in the tried and tested area of railroad regulation. The court have,
never the less been reluctant to relinquish their right to exercise a final scrutiny of administrative

“The administrative procedure Act (1946) particularly has expanded the scope of judicial review. A
complainant cannot ordinarily resort to the courts until he has exhausted all administrative remedies.
This is quite properly so, because to have recourse to the courts for purposes of mere delay would
soon deprived the administrative process of the dispatch which is one of its major virtue. Section 10 of
the administrative procedure Act, however, has a provision for "interim relief" which apparently aims
at undercutting this doctrine of the exhaustion of administrative remedies.”

“To avoid "irreparable harm" every reviewing court is authorized to issue all orders necessary to post
pone the effective date of agency action or to preserve status or rights until conclusion of the review
proceedings. This complicities the administrative process and places a new emphasis upon review by
making it easier for individuals to go to the courts for declaratory judgments or order before
exhausting the remedies available through administrative action. ”

Disregarded of natural justice:

Failure to give proper hearing may also quite properly be regarded as one of the varieties of abuse of
power. There are many where either common law or statute makes the exercise of a owner illegal if
the person who will suffer has not first been fairly heard in his own defence. But this opens the whole
subject of natural justice, which needs chapter to it. It is indeed, full of examples of the right thing
being done in the wrong manner. But it also has wider aspects, and will be best treated independently.

Limitations of Judicial Control

The judicial remedies mentioned above under the ‘Rule of Law’ system provide an effective control
against official excesses or abuse of power and in protecting the liberties and rights of the citizens. But
judicial control has certain limitations.

It the first place all administrative actions are not subject to judicial control. There are many kinds of
administrative actions, which cannot be reviewed by the law courts. Then there is a tendency on the
part of the legislature also to exclude by law certain administrative acts from the jurisdiction of the
judiciary. For example, in India the administration of Evacuee Property act, 1950 vests final judicial
powers in the Custodians and Custodian General of Evacuee Property and the law courts have no
jurisdiction to interfere in the decision made under this Act.

Second, even in those administrative actions which are within its jurisdiction, the judiciary cannot by
itself take cognisance of excesses on the part of officials. It can intervene only on the request of
somebody who has been affected or is likely to be affected by an official action. Human nature being

what it is, legalism is the last sphere in which it would like to enter. We are always reluctant to enter
the precincts of judiciary and prefer to continue to put up with minor injustices of administration.

That means that a negligible fraction of the cases of administrative excesses would come before the
judiciary and that too after a person has already suffered.
Third, the judicial process is very slow and cumbersome. The courts follow certain set technical
pattern of procedure beyond the comprehension of a layman and then the procedure is so lengthy that
it cannot be known as to when the final judgment shall be given. There have been instances when
cases have been pending with the courts for years together. Sometimes the decision of the court comes
when the damage has been done beyond repair: “Justice delayed is justice denied”. An aggrieved
person cannot wait indefinitely to avail himself of the judicial remedy. The dilatory judicial procedure
will not in any way console the sufferer or reconcile his afflicted mind. Tired of the delay he
will lose hope and become a victim of bureaucracy.

Fourth, sometimes the remedies offered by the law courts are in adequate and ineffective. In many
cases, especially relating to business activities, mere announcement of an administrative action or
even a reminder concerning a proposed action may cause an injury to the individual against who not
even a suit can be filed in the law court.

Fifth, the government may deprive the person of the remedy granted to him by the court by changing
the law or rules thereof. In a case the High Court’s ordered that the petitioners be promoted to the
senior posts of Professors class I and that direct selection for these posts contravenes the provision of
the States Reorganisation act in as much as it changes the conditions of service of the petitioners to
their disadvantages. The Government did promote the petitioners thereby giving effect to the
judgement of the court. But after some time these posts were withdrawn on the ground of financial
Stringency and the persons were reverted to their substantive posts.

Sixth, judicial action is incredibly expensive and cannot therefore be taken advantage of by many
people. Filing a suit means paying the court fee, fee of the lawyer engaged and cost of producing
witnesses and undergoing all inconveniences which only those who can afford can bear. This keeps
many people away from the court who prefer to suffer. On account of heavy cost and great
inconvenience the judicial remedies are of little advantage.

Last, the highly technical nature of most of the administrative actions saps the force of judicial review.
The judges are only legal experts and they may have little knowledge of the technicalities and

complexities of administrative problems. Their legal bent of mind may hinder them in arriving at a
right decision. They have to follow the prescribed procedures and observe some formalities. W. A.
Robson writes, “The liability of the individual official for wrong doing committed in the course of his
duty is essentially a relic from past centuries when government was in the hands of a few Prominent,
independent and substantial persons, so called Public Officers, who were in no way responsible to
ministers or elected legislatures or councils. Such a doctrine is utterly unsuited to the Twentieth
Century State, in which the Public Officer has been superseded by armies of anonymous and obscure
civil servants acting directly under the orders of their superiors, who are ultimately responsible to an
elected body. The exclusive liability of the individual officer is a doctrine typical of a highly individual
Common Law. It is of decreasing value today, and is small recompense for an irresponsible state.”
Besides, the judges have their own whims and prejudices. That is why the modern trend is towards
the establishment of Administrative Tribunals, which consist of person’s expert in technical matters.