VIOLATION OF CONSTITUTIONAL PROVISIONS

Thus the Constitution of India is having significant effect on laws including

administrative law. It is under this fundamental laws are made and

executed, all governmental authorities and the validity of their functioning

adjudged. No legislature can make a law and no governmental agency can

act, contrary to the constitution no act, executive, legislative, judicial or quasijudicial,

of any administrative agency can stand if contrary to the constitution.

The constitution thus conditions the whole government process in the country.

The judiciary is obligated to see any governmental organ does not violate the

provisions of the constitution. This function of the judiciary entitles it to be

called as guardian of the constitution.

In India, in the Watershed one can include the whole control mechanism

provided in the constitution for the control of the administrative authorities that

is article 32, 226,136,300 and 311.

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The following functions of the administration have been held to be quasi-judicial

functions:

1. Disciplinary proceedings against students.

2. Disciplinary proceedings against an employee for

misconduct.

3. Confiscation of goods under the sea Customs Act, 1878.

4. Cancellation, suspension, revocation or refusal to renew

license or permit by licensing authority.

5. Determination of citizenship.

6. Determination of statutory disputes.

7. Power to continue the detention or seizure of goods

beyond a particular period.

8. Refusal to grant ‘no objection certificate’ under the

Bombay Cinemas (Regulations) Act, 1953.

9. Forfeiture of pensions and gratuity.

10. Authority granting or refusing permission for

retrenchment.

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If administrative instructions are not referable to any statutory

authority they cannot have the effect of taking away rights vested in

the person governed by the Act.

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The bodies are empowered under the Act to frame bye-laws and regulations

for carrying on their administration.

There are five main grounds on which any bye-law may be struck down as

ultra vires. They are :

a) That is not made and published in the manner specified by the

Act, which authorises the making thereof;

b) That is repugnant of the laws of the land;

c) That is repugnant to the Act under which it is framed;

iii) The manner of making returns, and

v) Such other administrative details

In the case of this normal type of delegated legislation, the limits of the

delegated power are clearly defined in the enabling statute and they do not

include such exceptional powers as the power to legislate on matters of

principle or to impose taxation or to amend an act of legislature.

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Procedural defects The Acts of Parliament delegating legislative

powers to other bodies or authorities often provide certain procedural

requirements to be complied with by such authorities while making rules and

regulations, etc. These formalities may consist of consultation with interested

bodies, publication of draft rules and regulations, hearing of objections,

considerations of representations etc. If these formal requirements are

mandatory in nature and are disregarded by the said authorities then the rules

etc. so made by these authorities would be invalidated by the Judiciary. In

short subordinate legislation in contravention of mandatory procedural

requirements would be invalidated by the court as being ultra vires the parent

statute. Provision in the parent Statute for consulting the interested parties

likely to be affected, may, in such cases, avoid all these inconveniences and

the Railway authorities may not enact such rule after they consult these

interests. A simple provision regarding consultation thus assumes importance.

On the other hand, if the procedural requirements were merely of directory

nature, then a disregard thereof would not affect the validity of subordinate

legislation.

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Judicial control over delegated legislature Judicial control over delegated

legislature can be exercised at the following two levels :-

1) Delegation may be challenged as unconstitutional; or

2) That the Statutory power has been improperly exercised.

The delegation can be challenged in the courts of law as being

unconstitutional, excessive or arbitrary.

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An administrative order based on a

reason or facts that do not exist must be held to be infected with an abuse of

power.India,(1979 2SCC 491)

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Now a day, the administrative authorities are conferred wide discretionary

powers. There is a great need of their control so that they may mot be misused.

The discretionary power is required to be exercised according to law. When the

mode of exercising a valid power is improper or unreasonable there is an abuse

of power. In the following conditions the abuse of the discretionary power is

inferred: -

i) Use for improper purpose: - The discretionary power is

required to be used for the purpose for which it has been given.

If it is given for one purpose and used for another purpose. It will

amount to abuse of power.

ii) Malafide or Bad faith: - If the discretionary power is exercised

by the authority with bad faith or dishonest intention, the action

is quashed by the court. Malafide exercise of discretionary

power is always bad and taken as abuse of discretion. Malafide

(bad faith) may be taken to mean dishonest intention or corrupt

motive. In relation to the exercise of statutory powers it may be

said to comprise dishonesty (or fraud) and malice. A power is

exercised fraudulently. If its repository intends to achieve an

object other than that for which he believes the power to have

been conferred. The intention may be to promote another public

interest or private interest.

iii) Irrelevant consideration: - The decision of the administrative

authority is declared void if it is not based on relevant and

germane considerations. The considerations will be irrelevant if

there is no reasonable connection between the facts and the

grounds.

iv) Leaving out relevant considerations: - The administrative

authority exercising the discretionary power is required to take

into account all the relevant facts. If it leaves out relevant

consideration, its action will be invalid.

v) Mixed consideration: - Sometimes the discretionary power is

exercised by the authority on both relevant and irrelevant

grounds. In such condition the court will examine whether or not

the exclusion of the irrelevant or non-existent considerations

would have affected the ultimate decision. If the court is satisfied

that the exclusion of the irrelevant considerations would have

affected the decision, the order passed by the authority in the

exercise of the discretionary power will be declared invalid but if

the court is satisfied that the exclusion of the irrelevant

considerations would not be declared invalid.

vi) Unreasonableness: - The Discretionary power is required to be

exercised by the authority reasonably. If it is exercised

unreasonably it will be declared invalid by the court. Every

authority is required to exercise its powers reasonably. In a case

Lord Wrenbury has observed that a person in whom invested a

discretion must exercise his discretion upon reasonable

grounds. Where a person is conferred discretionary power it

should not be taken to mean that he has been empowered to do

what he likes merely because he is minded to do so. He is

required to do what he ought and the discretion does not

empower him to do what he likes. He is required, by use of his

reason, to ascertain and follow the course which reason directs.

He is required to act reasonably

vii) Colourable Exercise of Power: - Where the discretionary

power is exercised by the authority on which it has been

conferred ostensibly for the purpose for which it has been given

but in reality for some other purpose, It is taken as colourable

exercise of the discretionary power and it is declared invalid.

viii) Non-compliance with procedural requirements and

principles of natural justice: - If the procedural requirement

laid down in the statute is mandatory and it is not complied, the

exercise of power will be bad. Whether the procedural

requirement is mandatory or directory is decided by the court.

Principles of natural justice are also required to be observed.

ix) Exceeding jurisdiction: - The authority is required to exercise

the power with in the limits or the statute. Consequently, if the

authority exceeds this limit, its action will be held to be ultra vires

and, therefore, void.

II. Failure to exercise Discretion.

In the following condition the authority is taken to have failed to exercise its

discretion and its decision or action will be bad.

i) Non-application of mind: - Where an authority is given

discretionary powers it is required to exercise it by applying its

mind to the facts and circumstances of the case in hand. If he

does not do so it will be deemed to have failed to exercise its

discretion and its action or decision will be bad.

ii) Acting under Dictation: - Where the authority exercises its

discretionary power under the instructions or dictation from

superior authority. It is taken, as non-exercise of power by the

authority and its decision or action is bad. In such condition the

authority purports to act on its won but in substance the power is

not exercised by it but by the other authority. The authority

entrusted with the powers does not take action on its own

judgement and does not apply its mind. For example in

Commissioner of Police v. Gordhandas the Police

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