Law Optional (Judicial review of Administrative Action) by Rajnish Jindal

Model Answer

Question #1.“Excessive delegation of rule-making powers is unconstitutional”. Discuss in view of Delhi Laws Act case. Which are the functions that can be delegated? 10 marks (150 words)

Ans.

The doctrine of separation of powers contemplates the idea that the governmental functions must be based on a tripartite division of legislature, executive and judiciary. The three organs should be separate, distinct, and sovereign in its own sphere so that one does not trespass the territory of the other.

In this modern Welfare State, governmental activity has pervaded almost every field of human Endeavour, thus, necessitating enactment of multifarious laws to regulate this ever widening activity. The Legislature does not have enough time to deliberate upon, discuss and approve all the regulatory measures required to implement the enacted law and here comes the requirement of delegated legislation. Moreover, law-making has now become a complicated and technical matter, and law must be flawless in technical details. In such a case, Parliament routinely delegates certain functions to authorities established by law since every aspect cannot be dealt with directly by the law makers themselves. This delegation of powers is noted in statutes, which are commonly referred to as delegated legislations. The delegated legislation would specify operational details, giving power to those executing the details. Regulations and by-laws under legislations are classic examples of delegated legislation.

Why is excessive delegation power an issue?

In the case of Queen v. Burah (1878), the Privy Council observed that Indian legislature was not an agent or delegate, but was intended to have plenary powers of legislation, and of the same nature of the parliament itself. It was observed that Indian legislature had exercised its judgment as to the place, person, law, powers and what the governor was required to do was to make it effective upon fulfilment of certain conditions. This was called conditional legislation which was upheld by the court. But on the practically important question of delegating power to make substantive law to other bodies short of general total self-effacement but without any standard or safeguard, the privy council did not seem to have expressed any opinion. There was a lot of confusion regarding delegated legislation after these cases. The question of moot was whether the legislature of Independent India should be restricted to such rules or should it be given greater freedom? The next step of confusion was whether India should follow American model where unlimited power cannot be delegated or like that of England where, as much power can be delegated?

Further, Indian constitution was silent on the issue whether legislature can delegate or not. Moreover, in Jatindra Nath v Province of Bihar (1949), the court invalidated provision in question, on the ground that the power conferred on the executive to extend the life of the Act was delegation of legislative power and not conditional legislation because the impugned delegation in that case was found to amount to abdication and the creation of a parallel legislature. It was this decision that had necessitated the reference in the Delhi Laws Acts (1951) case in which the court was of the view that: 

• There is a limitation on delegation of power. Legislature cannot delegate its essential functions.
• Only ancillary functions can be delegated.
• Parliament completely cannot abdicate itself by creating a parallel authority.

The case further clarified that since the legislature derives its power from the Constitution, excessive freedom like in the case of British constitution cannot be granted and limitations are required and thus USA model would be adopted in India and since legislature is very much under the thumb of the executive, thus India is not ready for unlimited delegation of power.

Thus, even though the framers of the Indian Constitution did not recognize the doctrine of separation of powers in a rigid sense it is not completely alien to our Constitution. As we retrospect, relevant classic jurisprudence like Ram Jawaya v. State of Punjab, clearly elucidates this principle. Chief Justice Mukherjea in the instant case said: “It can very well be said that our Constitution does not contemplate assumption, by one organ or part of the State, of functions that essentially belong to another. The executive indeed can exercise the powers of departmental.

In Hamdard Dawakhana v Union of India (1959), the Supreme Court had struck down delegation of powers on the grounds that it was vague. A Constitution Bench considered the validity of certain provisions of the Drug and Magic Remedies (Objectionable Advertisements) Act that prohibited advertisements of certain drugs for treatment of certain diseases and dealt with the powers of search, seizure and entry. The Court held that the central government’s power of specifying diseases and conditions as given in Section 3(d) is ‘uncanalised’, ‘uncontrolled’, and going beyond the permissible boundaries of valid delegation. Hence, the same was deemed unconstitutional. The Court applied the “policy and guideline” test to decide the constitutionality of the delegated legislation.

Conclusion: The practice of empowering the Executive to make subordinate legislation within a prescribed sphere has evolved out of practical necessity and pragmatic needs of a modern welfare State. At the same time it has to be borne in mind that our Constitution-makers have entrusted the power of legislation to the representatives of the people, so that the said power may be exercised not only in the name of the people but also by the people speaking through their representatives. The role against excessive delegation of legislative authority flows from and is a necessary postulate of the sovereignty of the people.

Question #2. “The principle of primary review & proportionality on the one hand and the principle of secondary review & Wednesbury reasonableness on the other hand gave a new dimension to Administrative Law, the former applying in the case of fundamental freedoms and the latter, in other cases.” Discuss referring to decided cases. 15 marks (250 words)

Ans.

Doctrine of Proportionality: The proportionality doctrine basically prescribes that decisions and orders of the administration should only be as restrictive as absolutely necessary for public purpose. As opposed to the Webnesbury unreasonableness principle, the proportionality doctrine has objective criteria for analysis and review which can be applied on case-to-case basis through pre-determined tests. Furthermore, Lord Diplock, while classifying the external structure of judicial review, had also opined that the concept of proportionality would become one of the grounds for judicial review in the future in addition to illegality, irrationality and procedural impropriety.

Proportionality and Wednesbury unreasonableness are widely considered to be subdivisions of the concept of irrationality. Though initially, there was a slight conflict between these two concepts, due to changes and developments that have occurred in the doctrine in recent years, proportionality has now become synonymous with irrationality and it is now the only aspect of the concept of irrationality that is taken into consideration. In this context Lord Diplock has said that: “The principle of proportionality envisages that a public authority ought to maintain a sense of proportion between his particular goals and the means he employees to achieve those goals, so that his action impinges on the individual rights to the minimum extent to preserve public interest”.

The application of the doctrine of proportionality was introduced in India with the case of Union of India vs G. Ganayutham (1997) where the Supreme Court held that “the Wednesbury unreasonableness will be the guiding principle in India, so long as fundamental rights are not involved.” Nevertheless, the court abstained from deciding anything in the matter relating to whether the proportionality test can be applied in the cases concerning violation of fundamental rights. Again, in the landmark decision given in the case of Omkumar vs Union of India (2000), the Hon’ble Supreme Court accepted the concept of proportionality in India. However, a strange thing was discovered by the Supreme Court in this case which is that the courts in India have been using the proportionality test since 1950 while deciding upon the validity of administrative actions relating to fundamental rights violation guaranteed under Article 19(1) of the Indian Constitution. The Supreme Court after much reviewing concluded that in India, the decisions concerning administrative actions infringing the Fundamental rights have always been determined on the basis of the proportionality test though it has never been expressly mentioned as such. Therefore, the Court concluded that the executive action or decision infringing Article 19 and 21 of the Indian Constitution would be determined by the application of the doctrine of proportionality whereas,61 in case of the decisions in violation of Article 14 of the Constitution, the Bench would adopt a primary view. The secondary review of the Wednesbury principle would apply when a decision made by the executive is questioned on the ground of irrationality.

Principle of Wednesbury: Unreasonableness primarily, the concept of irrationality was associated with Wednesbury unreasonableness, a principle that originated in the case of Associated Picture House v. Wednesbury Corporation.  The principle basically connotes that the discretion that has been conferred on the administration should be exercised properly and reasonably in accordance to the law. Pursuant to this, matters relevant to the subject at hand should be included and matters irrelevant to the subject at hand should be excluded from consideration while taking administrative decisions. Any action in contravention to this will be considered to be unreasonable and will attract the Wednesbury unreasonableness principle.

The doctrine of the Wednesbury principle was adopted by many common law nations including India as a tool for reviewing administrative action. The Indian Constitution confers power on Supreme Court as well as on the High Court to review an administrative decision or legislative act and nullify the same if it is against the Constitutional principles. The Wednesbury principle developed after the judgement given in the famous case of Associated Provincial Picture House v. Wednesbury Corporation. When an executive action seems to be unreasonable and illogical, it is put to wednesbury test so that it can be reviewed accordingly.

Though no standard test for universal application can be made applicable in case of Wednesbury unreasonableness and though the principle is somewhat vague and not capable of objective evaluation, according to Lord Diplock: “Wednesbury unreasonableness is a principle that applies to a decision which is so outrageous in its defiance of logic or of accepted moral standards that no sensible person who applied his mind to the question to be decided could have arrived at it”.

Any person in authority who is delegated with discretion must display responsibility and should only consider those matters that are relevant and which he needs to look into compulsorily. He would be considered to be acting unreasonably if he doesn’t act according to the rules and go against the laws. This is what is referred to as the Wednesbury principle.

In the case of Dy. Director of Consolidation vs Deen Bandhu Rai (1965), there was an application of exchange made to the officer which was rejected on the ground that it would burden the officers with work. The Hon’ble Supreme Court observed that the ground mentioned for the rejection of the application was not relevant and appropriate. In another case of Barium Chemicals Ltd. vs Company Law Board (1967), some inspectors were appointed by the Company Law Board Secretary, for carrying an inspection into the company affairs as per Section 237(b) of the Companies Act, 1956. The Supreme Court in this case held that the discretion under section 237 of the Act, can only be exercised under certain circumstances in which the authority in their opinion feels right as per the grounds given in the Act. In a similar case of Shalini Soni vs Union of India (1981), the Supreme Court held that “It is an unwritten rule of the law, constitutional and administrative, that whenever a decision-making function is entrusted to the subjective satisfaction of a statutory functionary, there is an implicit obligation to apply his mind to pertinent and proximate matters only, eschewing the irrelevant and the remote.”

Conclusion: The scope of the Wednesbury principle is much wider than what is suggested by the term reasonableness. Every action or decision taken by a public authority who is entrusted with a statutory discretion must be well within the boundaries of law and while determining the lawfulness of such decisions it must be done with respect to the facts and circumstances of the case as ‘context’ is everything in law. While the courts are accustomed to referring to the Wednesbury principle of unreasonableness, some eminent people are proposing that proportionality would be a better and useful test even in those cases which don’t involve nonconventional rights. There has to be intense scrutiny in cases that involves the fundamental rights or interests of others. The Wednesbury test which was applied uniformly in every case is no longer acceptable as every case must be reviewed according to its context.