ADMINISTRATIVE LAW I.P. Massey

692 Pages·808.84 MB·english

by  I.P. Massey

ADMINISTRATIVE

LAW
I.P. Massey Ninth Edition
Foreword by
Justice P.N. Bhagwati
Chief Justice of India
Introduction by
Prof. Upendra Baxi
EBC
India's leading law information provider
Administrative
Law
PROF. (DR) I.P. MASSEY
LLM (Lko), LLM (Calif., Berkeley), PhD
Formerly Professor and Chairman, Department of Law
and Dean, Faculty of Law
Himachal Pradesh University, Shimla,
Member, State Legal Services Authority, (H.P.),
Member, State Human Rights Commission, (H.P.),
Fellow, Indian Institute of Advanced Study, Shimla,
Visiting Professor of Law,
Hidayatullah National Law University Raipur (Chattisgarh)
Presently Professor of Law and Dean, Faculty of Law,
National Law University, Jodhpur
Foreword by
JuSTICE P.N. BHaCwATI
(Retd.) Chief Justice of India
With an Introduction by
PROF. UPENDRA BAXI
EBC
Lucknow|Delhi |Allahabad
Bangalore | Ahmedabad | Nagpur
ChielJusticeef Sndia
RO
Foreword to the Second Edition
I am very glad that Dr I.P. Massey has brought out a really useful book
on administrative law. The concept of administrative law has assumed
great importance in the last three decades and has witnessed remarkable
advances in recent times. It is a branch of law which is being increasingly
developed to control abuse or misuse of governmental power and keep
the executives and its various instrumentalities and agencies within the
limits of their power. The rule of law, which runs like a golden thread
through every provision of the Constitution and indisputably constitutes
one of its basic features, requires that every organ of the State must act
within the confines of the powers conferred upon it by the Constitution
and law; and administrative law is that branch of law which seeks to
ensure observance of the rule of law.
We are at present living in a modern welfare state and its chief charac-
teristics are: 1) a vast increase in the range and detail of government reg-
ulation of privately owned economic enterprise; 2) the direct furnishing
of services by government to individual members of the community-the
economic and social services as social security, low-cost housing, medi-
cal care, etc.; and 3) increasing government ownership and operation
of industries and businesses which, at an earlier time, were or would
have been operated for profit by individuals or private corporations. In
X ADMINISTRATIVE LAW
short, as pointed out by Friedmann in his well-known book, Lauw in a
Changing Society, the State performs five different functions and three
out of these functions result from the activities of the State as provider,
entrepreneur and economic controller.
In the welfare state, public power becomes an instrumentality for the
achievement of purposes beyond the minimum objectives of internal
order and national defence. It is not sufficient that the State be secure
against internal disorder and external aggression; a State can be secure
and well ordered and yet lack the attribute of distributive justice. But as
social justice becomes the conscious end of State policy, as is the case in
India under our Constitution, there is a vast and inevitable increase in
the frequency with which ordinary citizens come into direct relationship
with the wielders of power. An ordinary citizen's significant encounter is
not so much with the policeman or magistracy as with the officers repre-
senting regulatory authorities, dispensers of social services, managers of
public sector undertakings, etc. It is this dramatically increased incidence
of encounter that set the task of the rule of law in the welfare state. It
should be the goal of rule of law to see that these multifarious and diverse
encounters are fair, just and free from arbitrariness. This was precisely
what was pointed out by me, speaking on behalf of the Supreme Court,
in Ramana Dayaram Shetty v. International Airport Authority of India'
(Airport Authority) as:
Today with tremendous expansion of welfare and social service functions,
increasing control of material and economic resources and large scale
assumption of industrial and commercial activities by the State, the power
of the executive Government to affect the lives of the people is steadily
growing. The attainment of socio-economic justice being a conscious end
of State policy, there is a vast and inevitable increase in the frequency with
which ordinary citizens come into relationship of direct encounter with
State power-holders. This renders it necessary to structure and restrict the
power of the executive Government so as to prevent its arbitrary application
or exercise.
It is also an important factor which cannot be ignored that a modern
welfare state entails the conferment of discretionary powers on the
administration to eftectuate wide socio-economic goals. In any area of
1. (1979) 3 SCC 489.
FOREWORD XI
socio-economic regulation, discretionary power over valuable interests
is perhaps inevitable. The theory that the legislature must delineate the
policies and that administrators must have no discretion, except to apply
the legislative policies, has to yield to the stark reality that legislatures
cannot possibly anticipate and provide for all situations. As Aristotle
said, "The generality of law falters before the specifics of life." Moreover,
quite often, the legislation is skeletal, leaving many gaps and conferring
powers on the administration to act in a way it deems "necessary" or
reasonable" or if it "is satisfied" or "is of opinion" and so on. The legis-
lature often bestows more or less unqualified or uncontrolled discretion
on the executive. Discretion is a tool for individualisation of justice. The
administration has to apply statutory provisions, which may be seem-
ingly vague or indefinite, according to the fact situations as they arise
with a view to effectuating legislative policy. As Davis has said:
All governments in history have been governments of laws and of men.
Rules alone, untempered by discretion cannot cope with the complexities
of modern government and of modern justice. Discretion is our principal
source of creativeness in government and in law.
It, therefore, becomes necessary to confine structure and check discre-
tion in order to uphold the principle of rule of law in administration.
The judiciary has over the years evolved rules for controlling and struc-
turing the exercise of discretionary power which, having regard to the
complexities of modern economy, has necessarily to be vested in differ-
ent instrumentalities and agencies of the State, so that the discretionary
power does not degenerate into arbitrary power. There is often antithesis
between power and justice, and by administrative law, this antithesis is
sought to be removed and power is sought to be controlled and chan-
nelised for bringing about a just result. Administrative law is, in fact, a
potent weapon for bringing about harmony between power and justice.
There are several principles of administrative law which have been
evolved by the courts for the purpose of controlling the exercise of power
so that it does not lead to arbitrariness or despotic use of power. These
principles are intended to provide safeguard to the citizens against abuse
or misuse of power by the instrumentalities or agencies of the State. One
of the most important of these principles is the rule of natural justice
XII ADMINISTRATIVE LAW
which consists of two major constituent principles, namely, the principle
of audi alteram partem and the principle that no one shall be a judge in
his own cause. The principle of audi alteram partem requires that no one
shall be condemned unheard, and it has received its finest flowering in
recent times in the decisions of the Supreme Court in Mohinder Singh
Gill v. Chief Election Commr (Gill) and Maneka Gandhi v. Union of
India' (Maneka Gandhi). The Supreme Court has held that if in a given
case prior hearing would frustrate the object and purpose of the exercise
of the power, it can be dispensed with, but, in that event, it must be sub-
stituted by post-decisional hearing. This is a striking advance made by
the Supreme Court on the English Law because there the law is that the
requirement of prior hearing may bedispensed with if it would frustrate
the object and purpose of the exercise of the power and in such a case,
there need be no hearing at all, but in India, the Supreme Court has intro-
duced the necessity of post-decisional hearing in such a case. Sometimes,
an attempt is made by lawyers appearing on behalf of the government
to contend that even where prior hearing is not given, the exercise of the
power does not become bad and it can be cured by post-decisional hear-
ing. But this is a gross misunderstanding of the decisions of the Supreme
Court in Gilt and Maneka Gandhi', because it is clear law that if prior
hearing is required to be given as part of the rule of natural justice, fail-
ure to give it would indubitably invalidate the exercise of the power and it
cannot be saved by post-decisional hearing. It is only where the necessity
for prior hearing cannot be read into the statute because to do so would
be to defeat the object and purpose of the exercise of the power, that post-
decisional hearing is required to be given and if that is not done, the exercise
of the power would be vitiated. The other principle that no one shall be a
judge in his own cause has also been recognised and developed
in Indian jurisprudence in several decisions of the Supreme Court. The
Supreme Court has also held that every quasi-judicial tribunal must give
reasons for the decisions it makes, and necessity to give reasons is a part
of the principles of natural justice. Dr Massey has very perceptively dealt
with these rules of natural justice as evolved in various decisions of the
Supreme Court as well as courts outside India.
2. (1978) I SCC 405.
3. (1978) I SCC 248.
4. (1978) 1 SCC 405.
5. (1978) 1 SCC 248.
FOREWORD XIII
One other development which has revolutionised administrative law
in India owes its genesis to the decisions of the Supreme Court in Airport
Authority and Ajay Hasia v. Khalid Mujib Sehravardi". These deci-
sions have laid down that not only the State Government but also every
instrumentality or agency of the State Government is subject to the con-
stirutional limitations imposed by fundamental rights, and one of the
limitations so imposed is that every action of the State or its instrumental
ity or agency must be reasonable and non-arbitrary. The Supreme Court
has imposed the requirement of reasonableness and non-arbitrariness in
every action, whether it be of the government or any of its instrumen-
talities or agencies, and laid down that the yardstick of reasonableness
must be found in the directive principles of state policy. This principle
has invested the courts with immense power to scrutinise the action of
the executive and its instrumentalities and agencies for the purpose of
determining whether such action is reasonable and non-arbitrary. If the
court finds that the action is not based on any principle or norm, but is
arbitrary, the court would be under the plainest duty to strike it down.
This principle has also been adequately discussed by Dr I.P. Massey in
this book.
One other question which has bedevilled administrative law is the
question of State liability for the unconstitutional acts of its servants.
What is the extent of liability of the State for the wrongful acts of the
administration? There are decisions of the Supreme Court which seem
to indicate that where there is gross violation of the right to life and the
principle enshrined in Article 21 of the Constitution by any government
servant, the State may be held liable to pay compensation to the victim
or his dependents. The Supreme Court in Rudul Sah v State of Bihar
directed compensation in the sum of F 30,000 to be paid to Rudul Sah
for his detention in jail contrary to the mandate of Article 21. So also the
Supreme Court in Sebastian M. Hongray v. Union of India' directed the
State to pay a sum of zone lakh each to the wives of two citizens who
were arrested by the armed forces, but who did not return back. This is a
developing branch of law and it remains to be seen how far the Supreme
6. (1979) 3 SCC 489.
7. (1981) 1 SCC 722.
8. (1983) 4 SCC 141.
9. (1984) 3 SCC 82.
XIV ADMINISTRATIVE LAw
Court will go in awarding compensation for violation of Article 21 of
the Constitution.
Dr I.P. Massey's book contains a lucid exposition of administrative
law in all its aspects and dimensions and offers a highly perceptive and
critical analysis. I have no doubt that this book will be of immense use
not only to law students but also to lawyers and administrators and men
in public life.
May I once again congratulate Dr I.P. Massey on bringing out a really
critical and refreshing book on administrative law.
-P.N. BHAGWATI
3. Janpath
New Delhi
16 August 1985
,
.
Preface
This book in your hand was first published in 198o. Since then it has
undergone 8 editions and 2 reprints. This shows that the book has been
able to sustain the interest of generations of students and practitioners of
law. I thank all my readers for their continued interest and appreciation.
Administrative law as a part of public law is essentially anti-author-
itarian and aims to enforce rule of law in the governance as it is always
in the state of transformation and flux. Liberalisation and globalisation
of economy has added new dimension to it which requires restatement of
classical administrative law principles and norms in the changed national
and transnational scenario. Therefore, revision of the book in some
essential areas became unavoidable. Areas like tribunalisation of jus-
tice, judicial review of administrative action, public and private dilema
in the age of corporatisation received special attention in this revision.
While bringing the text up-to-date care has been taken not to change the
scheme and volume of the book. Needless to say that the Introduction
of the book written by Prof. Upendra Baxi remains the most attractive
part of the treatise. I am sure this Ninth Edition will continue to hold the
interest of law scholars as before.
My thanks to Mr Abhinandan Malik, General Editor and his team
of dedicated workers at Eastern Book Company, Lucknow for bringing
out this edition with speed and accuracy. I also thank my wife Dr Meera
Massey who helped me in various ways during this revision process.
National Law University -I.P. MAsSEY
Jodhpur (Rajasthan)
2016
Introduction'
Prof. Upendra Baxi
The Myth and Reality of the Indian Administrative Law
1. PREFATORY OBSERVATIONS
At the outset, I wish to thank Prof. I.P. Massey and the publishers for
their invitation to continue to associate myself with the seventh edition of
this work. Prof. Massey's admirable textbook has stood the test of time.
This edition continues to provide a reliable overview of extensive and
intensive judicial decisions and doctrinal developments. Telling stories of
these developments in a short compass remains an arduous task, indeed,
and Prof. Massey accomplishes this admirably well. Among the notable
changes, this edition offers, is a most welcome addition via its brief but
important chapter concerning global administrative law (Chapter I5).
While appreciative of the demands made by many readers that no re-
write may surrender some "inspirational" or "critical" elements in its
earlier versions, I still proceed to recompose this introduction substan-
tially to specifically peruse the following tasks: I) contrasting conven-
tional legal understanding of the Indian administrative law (IAL) with
historical and sociological narratives of it; 2) understanding elements of
continuity and change in the IAL; 3) addressing some "tragedies" of the
IAL; 4) re-visiting the normative developments; and 5) developing some
threshold standards for the appraisal of judicial role and function.
2. UNDERSTANDING INDIAN ADMINISTRATIVE LAW
Administrative law is no doubt a conceptually awkward and fuzzy notion
and, yet at the same moment, an ever-growing doctrinal sphere because
it has no fixed terrain. The IAL is not really a subject or discipline of law
like, say, torts, property, company law, and at times invades administra-
tion of the criminal justice system. The IAL principles emerge across the
board, and are to be found, discovered, and even invented, wherever
Introduction to theSeventh Edition, 2008.