Some Recent Developments in Indian Administrative Law

Publication Date01 June 1984
DOI10.1177/002085238405000206
AuthorBalram K. Gupta
SubjectArticles
/tmp/tmp-17t3Us2EU82a4N/input
Some Recent Developments in
Indian Administrative Law
CDU : 35(54)
by
Professor Balram K. GUPTA,
Panjab University, Chandigarh, India
Administrative law in India is not of recent
THE NAGGING PROBLEM
origin (1) but its real development has taken
OF DELEGATED LEGISLATION
place since the advent of the Indian Constitu-
The
tion
area of
(2). To begin with,
delegated legislation has been
progress was slow
of constant interest
and
to the
gradual but it increased with each decade
legal fraternity, jud-
ges and academics. Since the Delhi Laws Act
so that the three decades since 1950 have seen
case (6), there has been an abundance of judi-
a vast improvement. Now it can be safely
cial
said that administrative law in India has &dquo;
pronouncements (7). But from the very
come
of age &dquo;. It is
beginning and until the last reported case,
no more a subject of mere aca-
demic discussion : it is of everyday experien-
Kunjambu (8), the theories of Policy and
Guidelines have been accepted. The position
ce (3).
has been summarised by Chinnappa Reddy, J. :
In the Constitution of India is ingrained the
The
philosophy of
power to legislate carries with it the
a welfare state which aims at
securing for its citizens the threefold aim of
power to delegate. But excessive delegation
social, economic and political justice (4). For
may amount to abdication. Delegation un-
limited
the fulfilment of this, the state has come to
may invite despotism uninhibited. So
the
play
theory has been evolved that the legis-
an important role and wields considerable
.
lature cannot delegate its essential legislative
power, whether it be legislative or executive.
functions.
It is here that administrative jurisprudence
Legislate it must by laying down
policy and principle and delegate it
comes into action, to
may to
ensure that the state acts
&dquo;
fill in detail and
fairly without discrimination and without
varry out policy.... If
un-
fair procedure &dquo; (5). It needs
guidance there is, wherever it
to be acknow-
may be found,
the
ledged that the Indian judiciary has made
delegation is valid (9).
a
large contribution towards providing &dquo;
a
devel-
In working out the details of this theory,
oped-look&dquo; to Indian administrative jurispru-
Parliament has enjoyed an increasing degree
dence.
As it will not be possible to cover
of latitude.
In particular this &dquo; liberality &dquo;
the entire range of developments in this paper,
the main focus will be on more recent develop-
(6) In re Art. 143, Constitution of India, etc.,
ments.
AIR 1951 SC 332.
(7) The following key cases can be listed: Hari-
shankar Bagla v. M.P., AIR 1954 SC 465; Ratuarain-
(1) The following sources provide historical back-
singh v. Chairman, Patna Adm. Committee, AIR
ground to Indian Administrative Law: Jayaswal,
1954 SC 569; Banarsi Das v. M.P., AIR 1958 SC
Manu and Yajnavalkya, 1930, pp. 92-101; Majumdar,
909; Western India Theatres Ltd. v. Municipal Corpn.
Problems of Public Administration in India, 1952,
of Poona, AIR 1959 SC 586; Hamdard Dawakhana
p. 11; Shamasastry, Kautilya’s Arthasastra, 1961, pp.
v. U.O.I., AIR 1960 SC 554; V.M. Sanjanwala v.
56-75; A.K. Chanda, Indian Administration, 1965,
Bombay, AIR 1961 SC 4; Jyoti Pershad v. Delhi,
pp. 15-42; Kane, History of Dharma Shastra, 1968,
AIR 1961 SC 1602; Corporation of Calcutta v. Liber-
Vol. 1, p. 201.
ty Cinema, AIR 1965 SC 1107; Municipal Board,
(2) A standard work on Indian Administrative Law
Hapur v. R. Kirpal, AIR 1966 SC 693; Municipal
which covers the developments after the coming into
Corporation of Delhi v. Birla Cotton Spinning and
force of the Constitution is: M.P. Jain and S.N.
Weaving Mills, AIR 1968 SC 1232; Sita Ram Bi-
Jain, Principles of Administrative Law, 1979.
shambhar Dayal v. State of U.P., AIR 1972 SC
(3) S.P. Sathe, " Administrative Law: New Hori-
1168; Gwalior Rayon Co. v. Asstt. Commr. of Sales
zons ", Journal of Constitutional and Parliamentary
Tax, AIR 1974 SC 1660; N.K. Papiah v. Excise
Studies, Vol. X, 1976, p. 439.
Commissioner, AIR 1975 SC 1007; K.S.E. Board v.
(4) The main philosophy of the Constitution is
Indian Aluminium Co., AIR 1976 SC 1031; Avinder
contained in op. cit. The Preamble, Part III - Fun-
Singh v. Punjab, (1979) 1 SCC 137; The Registrar
damental Rights, and Part IV - Directive Principles
of Cooperative Societies v. K. Kunjambu, (1980) 1
of State Philosophy.
SCC 340.
(5) P.N. Bhagwati, J. in R.D. Shetty v. Interna-
(8) Kunjambu, see note 7.
tional Airport Authority, 1979, 3 SCC 489 at 506.
(9) Ibid., p. 343.


158
has been extended to the fields of taxation
1957 was in question. Section 15 empowers
and welfare legislation. In matters of rates
the state government to make rules for &dquo; re-
of taxation, even the delegation of blanket
gulating &dquo; the grant of leases in respect of
power to the Government has been upheld
minor minerals. Acting under this delegation,
and justified on the grounds that it would
the Tamil Nadu Government enacted a rule
provide a fixed rate of taxation, taking into
banning leases in respect to black granite to
consideration the financial resources required
private individuals and granting them only to
for the purposes of the Act which delegated
government-owned corporations. The net re-
the authority (10). Another factor that in-
sult was that in the exercise of the regulations,
fluenced the court is the nature of the
the state government abolished private enter-
body to whom the power is delegated. If it
prise and nationalised the business in black
is delegated to a municipal body or a cor-
granite. Its validity was upheld by the court.
poration which is representative in character,
It argued ( 16) :
this in itself is considered to be a sufficient
In modem statutes concerned as
check (11). In the
they are
case of taxing statutes, the
with economic and social activities, &dquo;
Supreme Court has
regula-
now extended this latitude
tion &dquo; must, of necessity, receive so wide
to the case of welfare legislation, in particular
an
those
interpretation that, in certain situations,
statutes which are designed to further
it must exclude
the directive principles of
competition to the
state policy (12).
public
sector from the
This proposition
private sector.
was laid down by the Su-
preme Court during the examination of the
The court even rejected the argument that
validity of Section 60 of the Madras Coopera-
this ruling had the effect of changing the
tive Societies Act, 1932 which reads as fol-
very policy which was laid down by the parent
lows :
Act. The court contended that the rule re-
ferred
The State Government
only to one mineral, black granite, and
may, by general or
not to all minerals and, therefore, did not
special order, exempt any registered society
from
represent any change in policy. This means
any of the provisions of this Act or
that if the state chooses to extend this very
may direct that such provisions shall apply
rule by
to such society with such modifications
separate notifications on different
as
minerals and thus gradually create a monopoly,
may be specified in the order.
there will be no means of preventing this.
The Supreme Court appreciated the fact
On the one hand this is a welcome
that this
trend,
provision approached the &dquo; Henry
for in a Cabinet
VIII Clause &dquo; but it upheld it since it formed
system, it is primarily the
executive which plays the key role in enacting
part of welfare legislation (13). It is doubtful
the laws
how sound
through Parliament. This being so,
a policy it would be to introduce
the element of
delegated legislation is a continuation of the
flexibility into the application
of welfare legislation by giving the Govern-
process. On the other hand, the post-auditing
of delegated legislation by Parliament by
ment a discretionary power of exemption. On
means of
the other hand, the Government
reserving the right to modify or
may exercise
its discrimination but there
repeal is of little consequence in practical
may not be an
terms in an executive-dominated-Parliament
effective control system other than, in a few
In other words, it is more or less a rubber
cases, the possibility of a challenge on the
stamping
grounds that refusal to
process. Is this trend an invitation
exempt is in violation
to the &dquo; New
of the constitutional
Despotism &dquo; of 1929 in the
guarantee of Equality (14).
U.K. or in the current situation of enormous
A
more recent illustration of the liberal attitude
state
of the Supreme Court is the
activity, is it normal, necessary or essen-
case of Messrs.
tial ?
Hind Stone (15). In this
Delegation was necessary then. It is
case, the Mines and
even more
Minerals (Regulation and Development) Act,
necessary now.
When speaking
of administrative legislation, Prof. H.W.R.
Wade has aptly stated:
(10) Avinder Singh, see note 7, p. 148.
There is
(11) Municipal Board, Hapur, see note 7; Avinder
only a hazy borderline between
Singh, see note 7.
legislation and administration, and the as-
(12) Kunjambu, see note 7, p. 343. The Directive
sumption that they are two fundamentally
Principles of state policy are contained in Part IV,
different forms of
Articles 36-51 of the Constitution
power is misleading (17).
of India.
(13) Ibid., p. 345.
(14) The right to Equality is guaranteed under
Article 14 of the Constitution of India.
(16) Ibid., p. 719.
(15) State of Tamil Nadu v. M/S Hind Stone,
(17) H.W.R. Wade, Administrative...

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