Admin Moot Memo-FINAL

ADMINISTRATIVE LAW MOOT - 2013

Before THE HONOURABLE HIGH COURT OF WESTERN SAHARA

XYZ.................................................................P

ETITIONER

.

v

STATE OF WESTERN SAHARA............................R ESPONDENT ESPONDENT

MEMORANDUM for PETITIONER

MEMORIAL FOR THE PETITIONER

CONTENTS LIST OF ABBREVIATIONS .......................................... ................................................................. ............................................. ......................................... ................... 3 INDEX OF AUTHORITIES ........................................... .................................................................. ............................................. ......................................... ...................4 CASES ............................................ .................................................................. ............................................ ............................................ ............................................. ....................... 4 STATUTES............................................. ................................................................... ............................................ ............................................ ...................................... ................ 5 BOOKS ........................................... ................................................................. ............................................ ............................................ ............................................. ....................... 5 ARTICLES ............................................. ................................................................... ............................................ ............................................ ...................................... ................ 5 OTHER AUTHORITIES ............................................ ................................................................... ............................................. ......................................... ................... 6 STATEMENT OF JURISDICTION ........................................... .................................................................. ............................................. .............................. ........ 7 STATEMENT OF FACTS ........................................... ................................................................. ............................................ ............................................. ....................... 8 QUESTIONS OF LAW ........................................... ................................................................. ............................................ ............................................. ........................... .... 9 SUMMARY OF ARGUMENTS ........................................... ................................................................. ............................................ .................................... .............. 10 ARGUMENTS ADVANCED ........................................... .................................................................. ............................................. ....................................... ................. 11 I

DELEGATION OF LEGISLATIVE FUNCTIONS IS NOT PERMISSIBLE ON THE GROUNDS

OF EFFICIENCY, EXPEDIENCY OR PUBLIC NECESSITY ........................................... ..................................................... .......... 11

1.1 The Delegation Is Excessive Due To Lack Of Policy Or Guidelines For The Executive To Execute The Said Functions ........................................... .................................................................. ............................ ..... 12 1.2 The Delegation Is Excessive And Bad Due To Delegation Of Essential Ess ential Function ... 14 1.3 The Policy declared by the Executive as the Export Promotion Policy is violative of the Rule of Equality............................................ ................................................................... ............................................. ....................................... ................. 16 II

ANTI NATAL AND POST NATAL PUBLICITY ARE NECESSARY ELEMENTS BEFORE

ENACTING A STATUTE IN ORDER TO PREVENT EXCESSIVE DELEGATION OF ESSENTIAL LEGISLATIVE FUNCTIONS. ............................................ .................................................................. ............................................ ................................ .......... 18

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CONTENTS LIST OF ABBREVIATIONS .......................................... ................................................................. ............................................. ......................................... ................... 3 INDEX OF AUTHORITIES ........................................... .................................................................. ............................................. ......................................... ...................4 CASES ............................................ .................................................................. ............................................ ............................................ ............................................. ....................... 4 STATUTES............................................. ................................................................... ............................................ ............................................ ...................................... ................ 5 BOOKS ........................................... ................................................................. ............................................ ............................................ ............................................. ....................... 5 ARTICLES ............................................. ................................................................... ............................................ ............................................ ...................................... ................ 5 OTHER AUTHORITIES ............................................ ................................................................... ............................................. ......................................... ................... 6 STATEMENT OF JURISDICTION ........................................... .................................................................. ............................................. .............................. ........ 7 STATEMENT OF FACTS ........................................... ................................................................. ............................................ ............................................. ....................... 8 QUESTIONS OF LAW ........................................... ................................................................. ............................................ ............................................. ........................... .... 9 SUMMARY OF ARGUMENTS ........................................... ................................................................. ............................................ .................................... .............. 10 ARGUMENTS ADVANCED ........................................... .................................................................. ............................................. ....................................... ................. 11 I

DELEGATION OF LEGISLATIVE FUNCTIONS IS NOT PERMISSIBLE ON THE GROUNDS

OF EFFICIENCY, EXPEDIENCY OR PUBLIC NECESSITY ........................................... ..................................................... .......... 11

1.1 The Delegation Is Excessive Due To Lack Of Policy Or Guidelines For The Executive To Execute The Said Functions ........................................... .................................................................. ............................ ..... 12 1.2 The Delegation Is Excessive And Bad Due To Delegation Of Essential Ess ential Function ... 14 1.3 The Policy declared by the Executive as the Export Promotion Policy is violative of the Rule of Equality............................................ ................................................................... ............................................. ....................................... ................. 16 II

ANTI NATAL AND POST NATAL PUBLICITY ARE NECESSARY ELEMENTS BEFORE

ENACTING A STATUTE IN ORDER TO PREVENT EXCESSIVE DELEGATION OF ESSENTIAL LEGISLATIVE FUNCTIONS. ............................................ .................................................................. ............................................ ................................ .......... 18

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2.1 Delegated Legislation Becomes Valid And Effective Only Only After Proper Publication .......................................... ................................................................. ............................................. ............................................. .............................................. ............................ ..... 18 2.2 Publication 2.2 Publication Of Delegated Legislation In The The Context Of Different Jurisdictions ..... 20 2.3 Publication Amounting To Consultation Contributing To The Increased Efficacy Of Delegated Legislation ............................................ .................................................................. ............................................ .................................... .............. 23 ULE MAKING IN WESTERN SAHARA III CONTROL MECHANISM OF ADMINISTRATIVE R ULE

ADEQUATELY

PROTECT

THE

INDIVIDUAL

IGHTS R IGHTS

AND

PRIVATE

INTERESTS

GUARANTEED BY THE CONSTITUTION........................................... .................................................................. .................................... ............. 26

3.1 The Discretionary Powers With Administrative Authority Are Tool For Arbitrariness .......................................... ................................................................. ............................................. ............................................. .............................................. ............................ ..... 26 3.2 The System Lacks Independence Of Judiciary, Hence Abuse Of Powers By Administrative Authorities ............................................ ................................................................... ............................................. ............................ ...... 28 3.3 Lack Of System Of Checks And Balances: Specifically Institution Of Ombudsman Creates Arbitrariness............................................................ .................................................................................. ........................................... .....................29 PRAYER ............................................. ................................................................... ............................................ ............................................ ........................................... .....................31

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LIST OF ABBREVIATIONS

Art. ..............................................................................................Article AIR..............................................................................................All India Report ed. ...............................................................................................Edition HC...............................................................................................High Court SC................................................................................................Supreme Court SCC.............................................................................................Supreme Court cases Sec...............................................................................................Section T.N..............................................................................................Tamil Nadu UOI.............................................................................................Union of India v...................................................................................................Versus Vol...............................................................................................Volume

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INDEX OF AUTHORITIES Cases                                  

Chandra Bansi Singh v. State of Bihar, AIR 1984 SC 1767:(1984) 4 SCC 316. Daymond v. Plymouth City Council Edward Mill. Co. v. State of Ajmer, AIR 1955 SC 25 G.Sadanandan v. State of Kerala, AIR 1966 SC 1925. Government of Andhra Pradesh and Ors. v. M.T. Khan , AIR 2004 SC 428 : (2004) 1 SCC 616. Gwalior Rayon Co. v. Asst. Commr. Of Sales Tax, AIR 1974 SC 1660. Gwalior Rayon Silk Mfg. Co. Ltd. v. Asstt.Commr., (1974) 4 SCC 98: AIR 1974 SC 1660 Harishankar Bagla v. State of M.P. AIR 1954 SC 465 Harla v. State of Rajasthan, AIR1951 SC 467. Humdard Dwakhana(wakf) v. Union of India, AIR 1960 SC 554 Indian Express Newspapers (P.) Ltd. v. Union of India AIR 1995 SC 965 In Re Delhi Laws Act 1951 AIR 332 Jalan Trading Co. v. Mill Majdoor Sabha AIR 1967 SC 691 Johnson v. Sargant, [1918] 1 K.B. 101. Khoday Distilleries Ltd. v. State of Karnataka (1996) 10 SCC 304 Mahe Beach Trading Co. v. Union Territor y of Pondichery, (1996) 3 SCC 741 (746) Minerva Mills v. Union of India, AIR 1980 SC 1789. Municipal Corpn. Of Delhi v. Birla Cotton Mills, AIR 1968 SC 1232 Narendra Kumar v, Union of India, AIR 1960 SC 296. Newspapers Ltd. v. State Industrial Tribunal, AIR 1957 SC 532:1957 SCR 754. OnkarLal Bajaj v. Union of India AIR, 2003 SC 2562 : (2003) 2 SCC 673. Panama Refining Co. vs. Ryan 293 US 388 R v. Minister of Transport, ex Upminster Services Ltd., (1934) 1 KB 277: 1933 All ER Rep 604 (CA) R.K. Jain v. Union of India, 1993 4 SCC 119, 168 : 1993 SCC 1128. Rajnarayan Singh v. Chairman, Patna Admn. Committee AIR 1954 SC 569 Raza Buland Sugar Co Ltd v. The Municipal Board, Rampur, AIR 1965 SC 895. Registrar of Co-operative societies v. K. Kunjbum AIR 1980 SC 350 Shrikishan Singh v. State of Rajasthan AIR 1955 SC 795 SitaramBishambharDayal v. State of UP (1972) 4 SCC 485 State of Kerala v. P.J. Joseph, AIR 1958 SC 296. State of Madhya Pradesh v. Ramshankar Raghuvanshi, AIR 1983 SC 374 : (1983) 2 SCC 145. Susannah Sharp v. Wakefield 1891 AC 173, 179 : (1886-1890) All ER Rep 651 (HL). Tata Iron & Steel vs. Worken AIR 1972 US Supreme Court in Industrial Deptt. V. American Petroleum Institution, 1980 448 US 607

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Statutes



Imports and Exports Control Act, 2012



General Clauses Act, 1897



Statutory Instruments Act, 1946



Federal Administrative Procedure Act, 1946



The Constitution of India 1950

Books 

SALMOND ON JURISPRUDENCE, 12 th edition



C K TAKWANI, LECTURES ON ADMINISTRATIVE LAW (2008)



JAIN & JAIN, PRINCIPLES OF ADMINISTRATIVE LAW (2007)



DD BASU, COMMENTARIES ON THE CONSTITUTION OF INDIA(Vol. IV)



D D BASU, SHORTER CONSTITUTION



S P SATHE, ADMINISTRATIVE LAW, 7 th edition (2004).



I P MASSEY, ADMINISTRATIVE LAW, 7 TH edition (2008).



J J R UPADHYAY, ADMINISTRATIVE LAW, 7 th edition



P P CRAIG, ADMINISTRATIVE LAW, 5 th edition (2003)

Articles 

Cecil T. Carr, Delegated Legislation in the United States, JOURNAL OF COMPARATIVE LEGISLATION AND INTERNATIONAL LAW, Third Series, 47 54 (1943).



Michael Taggart, From 'Parlianentary Powers' to Privatization: The Chequered History of Delegated Legislationin the Twentieth Century, 3 THE UNIVERSITY OF TORONTO LAW JOURNAL 55, 575-627 (Summer, 2005).



Daniel D. Geronazzo And Carl R. Jonsson, Promulgation of Statutory Orders at Common Law, 2 U. B. C. LEGAL NOTES 603 (1953-1958).



Michael Asimow, Delegated Legislation: United States and United Kingdom, 2 OXFORD JOURNAL OF LEGAL STUDIES 3, 253-276 (Summer, 1983).



David Lanham, Delegation of Governmental Power to Private Parties, 6 OTAGO L. REV. 50 (1985-1988). 5|Page




D. J. Lanham, Delegated Legislation and Publication, 5 THE MODERN LAW REVIEW 37, 510-524 (Sep. 1974).



S. A. de Smith, Delegated Legislation in England, 4 THE WESTERN POLITICAL QUARTERLY 2, 514-526 (Dec., 1949).



J. A. G. Griffith, Delegated Legislation: Some Recent Developments, 3 THE MODERN LAW REVIEW 12, 297-318(Jul., 1949).



Bernard Schwartz, Delegated Legislation in America: Procedure and Safeguards, 4 THE MODERN LAW REVIEW 11, 449-465 (Oct., 1948).



Hermann Punder, Democratic Legitimation Of Delegated Legislation-A Comparative View On The American, British AndGerman Law , 58 INT'L & COMP. L.Q. 353 (2009).



Rehema Mkuye, Controls and Safeguards of Delegated Legislation: a Case Study of Tanzania, 9 EUR. J.L. REFORM 205 (2007



Why Is It Necessary To Have Controls Over Delegated Legislation? Are The Present Controls Satisfactory?, http://www.peterjepson.com/law/Kieren%20Chahal.htm



Parliamentary Control of Delegated Legislation, http://www.aph.gov.au/About_Parliament/Senate/Research_and_Education/hamer/ch ap09

Other Authorities 

P RAMANATHA AIYAR, CONCISE LAW DICTIONARY, 3 rd edition (2009)

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STATEMENT OF JURISDICTION

The Petitoner Have The Honour To Submit Before The Honourable High Court Of Western Sahara, The Memorandum For The Petioners In The Public Interest Litigation Filed By The Public Spirited XYZ Organization under a relevant provision as Art 226 of the Constitution of India

THE

PRESENT MEMORANDUM SETS FORTH THE FACTS, CONTENTIONS AND ARGUMENTS IN THE

PRESENT CASE.

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STATEMENT OF FACTS

The People of Western Sahara, after overthrowing their despotic ruler, in order to ensure an accountable exercise of power, established an independent judiciary along with a system of „checks and balances‟ between various organs of the State. a high powered committee of senior civil servants were set up to ensure accountability of the administrators and to redress the various grievances of the people. This issue turned out to be controversial as a few people felt that effective control over the administration could only be exercised by the courts as they were conferred with the power to do so. Quite a few were in support of the establishment of institution of Ombudsman. Eventually, this turned out to be a heated topic of discussion debate in the media.

The questions that prevailed continually were whether delegated legislation was permissible in Western Sahara and who was the apt authority to make a decision as to whether the legislature has acted in accordance with the law or not. These questions mainly arose as the legislature of Western Sahara had recently enacted Imports and Exports Control Act 2012 and it stated that “to promote international trade and to enhance the foreign reserves of the country, the executive may both identify the goods that could be imported and exported” and they might as well specify the right procedure by which such Import and Export could be undertaken. However before notifying the final rules, the executive was required to consult with the people so as to obtain their opinion on the proposed rules.

Complying with this requirement, the executive first published the Draft rules in the official gazette and granted 30 days to the people to respond to the rules and at the end of 30 days they notified the final rules. The final rules were in such a manner that they did not have any substantive difference from that of the Draft rules.

The Government, at the same time as that of enactment of these Rules, also notified the Export Promotion policy which announced a series of incentives to exporters of Goods specified in the policy, independent of the above rules. The legality and correctness of rules was questioned by a public spirited organisation XYZ in the High Court of Western Sahara that the final rules are arbitrary and illegal ; as people were not consulted inter alia while

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drafting, pre-publication, consultation, post-publication, compilation and laying remedial parameters and hence invariably seen as infringement of principles of Natural Justice. QUESTIONS OF LAW

1. Whether delegation of legislative functions is permissible on the grounds of efficiency, expediency or public necessity?

2. Whether anti natal and Post natal publicity are necessary elements before enacting a statute in preventing excessive delegation of essential legislative functions?

3. Whether the control mechanisms of administrative rule making in Western Sahara adequately protect the individual rights and private interests guaranteed by the constitution?

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SUMMARY OF ARGUMENTS 1. Delegation of essential legislative functions is not permissible on the grounds of efficiency, expediency or public necessity

The Delegation is excessive due to lack of policy or guidelines for the executive to execute the said functions and due to delegation of essential function. Also, the Policy declared by the Executive as the Export Promotion Policy is violative of the Rule of Equality

2. Anti natal and Post natal publicity are necessary elements before enacting a statute in preventing excessive delegation of essential legislative functions.

Delegated legislation becomes valid and effective only after proper publication. The system of publication of delegated legislation with respect to different jurisdictions, are also discussed. Moreover, publication amounting to consultation contributes to increased efficacy of delegated legislation.

3. Control mechanisms of administrative rule making in Western Sahara does not protect the individual rights and private interests guaranteed by the constitution

The discretionary powers with administrative authority are tool for arbitrariness. The system lacks independence of judiciary and hence there is abuse of powers by administrative authorities. Thus, lack of system of checks and balances creates arbitrariness.

10 | P a g e


ARGUMENTS ADVANCED I

DELEGATION OF LEGISLATIVE FUNCTIONS IS NOT PERMISSIBLE ON THE GROUNDS OF EFFICIENCY, EXPEDIENCY OR PUBLIC NECESSITY

According to Salmond 1 legislation is either supreme or subordinate. Whereas the former proceeds from sovereign or supreme power, the latter flows from any authority other than sovereign power, and are therefore dependent for its existence and continuance on superior or supreme authority. Legislation made by a person or body other than the parliament, by virtue of powers conferred either by statute or by legislation which is itself made under statutory powers is referred as delegated legislation. 2 The delegation of Legislative power is only permitted only on the following grounds: 

When the legislative policy is laid down, and the delegate is empowered to carry out the policy within the guidelines laid down by the legislature. 3



The function which has been delegated must be a non-essential function, i.e. an ancillary function of the legislature. 4

A legislature cannot strip itself of its essential functions and vest the same on an extraneous authority. The primary duty of law-making has to be discharged by the legislature itself but delegation may be resorted to as a subsidiary or an ancillary measure.5 In the present case because the legislature of Western Sahara had in the recently enacted Imports and Exports control Act 2012 provided that “to promote international trade and to enhance the foreign reserves of the country, the executive may both identify the goods that could be imported and exported” as well specify the procedure by which such Import and Export could be undertaken. Now the question arises whether such delegation has been excessive or not?

1

SALMOND ON JURISPRUDENCE, (12 th ed.) atp.116.

2

P RAMANATHA AIYAR, CONCISE LAW DICTIONARY, (3 rd ed.,2009).

3

Tata Iron & Steel vs. Worken AIR 1972.

4

In Re Delhi Laws Act 1951 AIR 332.

5

Edward Mill. Co. v. State of Ajmer, AIR 1955 SC 25 . 11 | P a g e


According to the petitioner the said delegation has been an excessive one, for the reasons being that the delegation does not provide any guidelines or policy which are to be followed by the executive for executing the delegated factions. Furthermore the function delegated by the act, enhancement of foreign reserve relates to the growth of the Indian economy, which is an essential function of the legislature and cannot in any case be delegated. 1.1 The Delegation Is Excessive Due To Lack Of Policy Or Guidelines For The Executive To Execute The Said Functions It has now become a settled proposition of law that the delegation of powers must be aided by policies and guidelines, which has been discussed and debated about in the parliament. The reason being that, in a democracy the people have elected their representatives to make the laws to govern them, but in delegated legislation, it is the selected executive which makes and takes the decisions. It was never the intent of the people that laws would be made by the selected representatives, and therefore the discretion which is being given to the executive must not lead to arbritariness, and thereby violate the rule of law which is inherent in our constitution. Legislature must in conferring that power disclose the policy, principles or standards which are to govern the delegate in the exercise of that power so as to set out guidance. Any delegation which transgresses this limit infringes the constitutional scheme.6 It was held in the case of Gwalior Rayon Co. 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 rule against excessive delegation of the legislative authority flows from and is a necessary postulate of the sovereignty of the people. The rule contemplates that it is not permissible to substitute in the matter of legislative policy the views of the individual officers or other authorities, however, competent they may be for that of the popular will be expressed by the representatives of the people.7 The language used in the delegation of powers ,must not be extremely wide, so that the discretion is replaced by arbitrariness.8 To uphold a delegation, the discretion which has been 6

US Supreme Court in Industrial Deptt. V. American Petroleum Institution, 1980 448 US 607; “we ought not to shy away from our judicial duty to invalidate unconstitutional delegations of legislative authority.” 7

Gwalior Rayon Co. v. Asst. Commr. Of Sales Tax, AIR 1974 SC 1660 .

8

Daymond v. Plymouth City Council. 12 | P a g e


given must be a governed one. The power to delegate is subject to the qualification that the legislature does not abdicate or efface itself by setting up a parallel legislature. 9 These must be set by certain standards which should be mentioned itself in the parent act.10 In Panama Refining Co. vs. Ryan11 case the US president had been given certain powers by the congress to ban inter-state oil commerce in certain specified case. However no policy or standards had been set out by the congress to the President to execute the same. The US court held that the delegation had been a bad one, and it was to be revised. Justice Frank Further of the US Supreme Court has pointed out that “the power must more and more be lodged in administrative experts, like all power is open to abuse unless it is properly circumcised and zealously scrutinized.” The legislature must be laying down policy & principle & may delegate it to fill in detail and carry out policy. The legislature guides the delegate by speaking through the statute, the preamble, the scheme or even the subject matter of the statute.12 The delegation of legislative power is permissible only when the legislative policy is adequately laid down and the delegate is empowered to carry out the policy within the guidelines laid down by the legislature. 13 The Indian legislature cannot delegate unrestrained, uncanalised and unqualified legislative power on an administrative body. 14 The Supreme Court of India has stated that if there is abdication of legislative power, or transfer by the legislature of its legislative functions to another body, then that is not permissible. 15 No Indian legislature can delegate unlimited legislative power to the administration and if the delegation is too broad, the courts can declare the same as excessive and hence invalid. 16 Therefore it can be easily concluded that the delegation must be properly guided. Thus it lays down twofold protection system, i.e. there must be a guideline or set of policy to aid the

9

Gwalior Rayon Silk Mfg. Co. Ltd. v. Asstt.Commr., (1974) 4 SCC 98: AIR 1974 SC 1660; Mahe Beach Trading Co. v. Union Territory of Pondichery, (1996) 3 SCC 741 (746), Delhi laws Act, 1912 In Re; Municipal Corpn. Of Delhi v. Birla Cotton Mills, AIR 1968 SC 1232: (1968) 3 SCR 251; SitaramBishambharDayal v. State of UP (1972) 4 SCC 485: AIR 1972 SC 1168. 10

Panama Refining Co. vs. Ryan 293 US 388.

11

Id.

12

Registrar of Co-operative societies v. K. Kunjbum AIR 1980 SC 350 .

13

supra note 3.

14

Humdard Dwakhana(wakf) v. Union of India, AIR 1960 SC 554.

15

Mahe Beach Trading Co. v. Union Territory of Pondicherry, (1996) 3 SCC 741.

16

supra note 4. 13 | P a g e


executive, ad further these policies must be proper and effective, and not vague and for guidelines for the sake of it. In the present case we see that the powers have been given to the executive to identify the goods that could be imported and export and specify the procedure by which such Import and Export could be undertaken. The delegation has been simply wide and unaided by any guiding principles or policies to be followed by the executive. The discretion which has been given to the executive is violative of the concept of rule of law, which is inherent in our constitution. Assuming but not conceding to the fact that the executive before publishing the final rules has to obtain public consent, and their opinions, is a „policy‟ or „guideline‟, the same is a vague one. It is simple not possible for to take the opinion of the public at large, and cater to the needs of the different people in the country. It is simply for same reason that the representatives of the public are elected the latter to make laws. If now the elected representatives propose to make laws with the help of the electors at large, it defies the whole concept of having a representative democracy. 1.2 THE DELEGATION IS EXCESSIVE A ND BAD DUE TO DELEGATION OF ESSENTIAL FUNCTION Delegation unlimited may invite despotism unlimited 17.It is now a very settled position of law that the legislature cannot delegate its essential legislative function. Delegation of function is permissible in cases where the function which is being delegated is an ancillary function of the state. The leading case with reference to this point is In Re Delhi Laws Act 18. Delhi Laws Act permitted delegation of legislative power by the legislature to the executive; while on other hand it demarcated the extent of such permissible delegation of power by the legislature.19 It was observed by the Honourable court that: “The legislature cannot substitute the judgment, wisdom, and patriotism of any other body, for those to which alone the people have seen fit to confide this sovereign trust. Unless the power to delegate is expressly given by the constitution, a legislature cannot delegate its 17

Registrar Co-operative Societies v. K.Kunjabmu, AIR 1980 SC 350.

18

supra Note 4.

19

C K TAKWANI, LECTURES ON ADMINISTRATIVE LAW (2008) at pp. 76; JAIN & JAIN, PRINCIPLES OF ADMINISTRATIVE LAW (2007) at pp. 64-68; DD BASU, COMMENTARIES ON THE CONSTITUTION OF INDIA(Vol. IV) at p. 141. 14 | P a g e


essential legislative functions. As the Indian Constitution does not give such power to the legislature, it has no power to delegate essential legislative functions to any other body.” 20 This rule has been recognized both in America and in England, and Hughes C.J. has enunciated it in these words: -- “The Congress manifestly is not permitted to abdicate, or to transfer to others, the essential legislative functions with which it is thus vested.”21 In Rajnarayan Singh v. Chairman, Patna Admn. Committee 22and Jalan Trading Co. v. Mill MajdoorSabha23the court has held that the Act is declared ultra-vires if that function is essential legislative function. Essential legislative functions consist of determination of legislative policy and its formulation as a rule of conduct. In other words, a legislature has to discharge the primary duty entrusted to it. In the present case we see that the executive had been given powers to to identify the goods that could be imported and export and specify the procedure by which such Import and Export could be undertaken. The objective of the act which delegated the same was to promote international trade and enhance the foreign reserves of Western Sahara. In order to identify the gravity of the situation the exact meaning of foreign reserves has to be understood. Foreign Reserves are the reserves that a government maintains in the form of foreign of foreign currency deposits and bonds, gold, SDR‟s, IMF reserve etc, to back their liabilities. Foreign reserves accumulation is a widespread phenomenon in recent years, particularly among emerging economies. Western Sahara is a nascent economy, which has recently overcome the evil of despotism. In this era of globalization, where free trade is the order of the day, foreign reserves in an emerging economy like Western Sahara are very essential. Thereby a simple inference may be drawn that enhancement of foreign reserves is directly linked with the growth of economy of Western Sahara. It is settled proposition that enhancement of economy of a country is the primary concern of the legislature while making 20

Id.

21

293 U.S. 421.

22

Rajnarayan Singh v. Chairman, Patna Admn. Committee AIR 1954 SC 569: Supreme Court declared the delegation ultra vires on the ground that the power to pick out a section for application to another area amounts to delegating the power to change the policy of the Act which is an essential legislative power, and hence cannot be delegated. 23

Jalan Trading Co. v. Mill Majdoor Sabha AIR 1967 SC 691: The court held section 37 ultra vires on the ground of excessive delegation and observed that the Act authorized the government to determine for what the purposes of the Act are which in substance would amount to exercise of legislative power that cannot be delegated. 15 | P a g e


any law. The reason being that all rights and the directive principles of the country are linked whether directly or indirectly with the economic growth of the country. Therefore such a function which deals with the economy of the country is necessarily a essential function of the legislature, and therefore it cannot be delegated.

1.3 The Policy declared by the Executive as the Export Promotion Policy is violative of the Rule of Equality The next thing which the petitioner wants to contend before the Hon‟ble High Court is that the policy declared by the executive under the name of Export Promotion Policy whose main aim is to provide incentives to the exporters is ultra vires of the basic principle of rule of equality.24 As per the facts the legislature has made the law under the Import and Export Act, 2012 whose prime aim was to promote the international trade and preserve more and more foreign exchange reserve, because Western Sahara is a new emerging nation whose economy is still under the phase of development. Therefore each and every step was at that point of time is very important for the economic development. The legislature has delegated the function of making rules and deciding goods for both export and import to the executive. The executive in return in addition of declaring the rules and deciding the goods also declared the policy whose prime aim is to give extra incentives to the exporters. As far as the policy behind making the law of Import and Export act was to promote international trade i.e. basically to develop the economy of Western Sahara so for this both the importing and exporting of goods are equally important therefore the persons involve in the process of importing and exporting are similarly situated and are equally important therefore for the policy of the act of 2012 both the exporters and importers are equally important. And here the legislature has delegated the power to the executive who has a duty to use their power and discretion within the prescribed limit and must only act as per the policy and subject matter and preamble of the main parent legislation otherwise their action will be declared as invalid.25 But here the executive alongwith declaring the rules has also declared an independent policy under the name of export promotion policy whose aim is to provide incentives to the exporters “only”. 24

Art.14 of Constitution of India “this article of the constitution elucidates the principle of equality which says that everyone who are like in nature and similarly situated under similar situation should be treated equally in terms of both giving privileges and attaching liability”; see also Shrikishan Singh v. State of Rajasthan AIR 1955 SC 795. 25

Harishankar Bagla v. State of M.P. AIR 1954 SC 465 . 16 | P a g e


The petitioner wants to contend that this policy is not in accordance to the policy of the act of 2012 because it is only providing incentives to the exporters and as per the policy of the act both the importers and exporters are equally important. The line of argument here is that rule of equality is vested with the principle of equal protection of all which means all the persons who are similarly situated should be treated equally.26 The action taken by the executive should be in accordance to the object and preamble of the act and the circumstances under which it has been passed. 27 And here in this case the administrative action is challenged on the ground of violative of the equality because the action taken by the executive in terms of making the export promotion policy was first of all can be regarded as arbitrary in nature because since it was made under the delegated legislation therefore as a requirement it should be in conformity of the main act, 28 but here it was not as it was only promoting the exporters and not the importers. And secondly this policy was not in consonance to the object of the act and only extending the benefit to one party (providing incentives to the exporters) and not providing to other who is also similarly situated i.e. importers.29 Thus it humbly prayed before the Honourable court that the said delegation cannot be done o the ground of efficiency, expediency or public necessity, because of the following: 1. The said function is an essential function, which cannot be delegated. 2. The policy declared is violative of the Rule of Equality enshrined in the constitution. 3. The delegation is wide, vague, and is devoid of any guiding principles or policies for the executive to execute the delegated functions.

26

Shrikishan Singh v. State of Rajasthan AIR 1955 SC 795 .

27

D D BASU, SHORTER CONSTITUTION, at p. 85.

28

Khoday Distilleries Ltd. v. State of Karnataka (1996) 10 SCC 304 .

29

Indian Express Newspapers (P.) Ltd. v. Union of India AIR 1995 SC 965 . 17 | P a g e


II Anti Natal And Post Natal Publicity Are Necessary Elements Before Enacting A Statute

In Order To Prevent Excessive Delegation Of Essential Legislative Functions.

Procedural

mechanism

was

invoked

when

the

parliamentary

control

over

administrative rule proved to be weak due to the lack of legal skills possessed by the legislators. There was an urgent need for an alternative mechanism which besides providing an effective vigil over administrative rule making could also guarantee effective participation of the people for better social communication, acceptance and effectively of the rules. Procedural control by operating through the components of Drafting, Antenatal publicity, Consultation and Postnatal publicity allows specific audit of rules by those for whose consumption they are made. If government is to be run by consent of the governed, the persons and interests affected by delegated legislation should somehow be persuaded to participate in the framing of it. According to Professor James Hart the procedural safeguards as advisory committees, notice, and formal hearings, publication of proposed regulations, informal contact with groups concerned etc. should be categorized under mandatory standards.30 Parliamentary processes used for primary legislation such as prior and extensive consultation, public and deliberative debate, and publicity legitimizes the delegation of legislative power.31

2.1 Delegated Legislation Becomes Valid And Effective Only After Proper Publication “Ignorance of the law is not an excuse, knowledge of the law is a constitutional necessity.”

32

Legislation, when delegated, is required to be published as it provides an opportunity for public scrutiny.33 This is especially necessary in case of delegated legislation as it is always shrouded in mystery due to its making by the executive in the secrecy of bureaucratic chambers. If people are to abide by the law, adequate publicity of delegated legislation is 30

Cecil T. Carr, Delegated Legislation in the United States, JOURNAL OF COMPARATIVE LEGISLATION AND INTERNATIONAL LAW, Third Series, 47-54 (1943). 31

Michael Taggart, From 'Parlianentary Powers' to Privatization: The Chequered History of Delegated Legislationin the Twentieth Century, 3 THE UNIVERSITY OF TORONTO LAW JOURNAL 55, 575-627 (Summer, 2005). 32

I P MASSEY, ADMINISTRATIVE LAW , (7th ed. 2008).

33

Why Is It Necessary To Have Controls Over Delegated Legislation? Are The Present Controls Satisfactory?, http://www.peterjepson.com/law/Kieren%20Chahal.htm. 18 | P a g e


highly essential.34 It is also necessary to examine the delegated legislation in order to see that it was within the power granted by the act, that it was not retrospective, that it did not unnecessarily diminish personal rights and liberties and that it did not give bureaucrats unreviewable power over the public. In other words, a constant check is required so as to prevent excessive delegation. In addition to this, if the delegated legislation contained policy matters, these should also be closely looked into, rather than being slipped through by regulation. All these can only be done if the delegated legislation is clearly worded. 35 Different States have different devices and standards of official publication. Promulgation (in the Gazette, for instance) without any surrounding publicity; or publicity (in a newspaper, for instance) without any official promulgation is very essential and if the case is such that the ignorance of the accused person is due to his inability to ascertain what the law is because of the non-promulgation of the relevant order, then he cannot be held liable. 36 By publication, it is meant that there must be a notification that a particular regulation has been made and it should also be notified as to where the copies of the regulation can be purchased. 37 Antecedent publicity is a device that encourages the participation of the unorganized interests in the rule-making process and it also ensures the validity of the legislation. 38 Postnatal availability of rules and regulations, on the other hand, enriches the quantity and quality of inputs available to decision-makers and is universally considered to enhance democratic values of public participation in the making of crucial decisions as well as to improve the acceptability of those decisions to persons affected by them. 39 A well known writer on this subject has opined that: 40

34

S P SATHE, ADMINISTRATIVE LAW, (7th ed. 2004).

35

Parliamentary Control of Delegated Legislation, http://www.aph.gov.au/About_Parliament/Senate/Research_and_Education/hamer/chap09. 36

Daniel D. Geronazzo And Carl R. Jonsson, Promulgation of Statutory Orders at Common Law, 2 U. B. C. LEGAL NOTES 603 (1953-1958). 37

Delegated Legislation, www.oocities.org/iklsa/unsw/notes/admin99.doc.

38

J J R UPADHYAY, ADMINISTRATIVE LAW, (7 th ed.).

39

Michael Asimow, Delegated Legislation: United States and United Kingdom , 2 OXFORD JOURNAL OF LEGAL STUDIES 3, 253-276 (Summer, 1983). 40

supra note 30.

19 | P a g e


" It is not unknown for a departmental rule, one which is used daily and which affects a large number of enterprises, never to be committed to paper."

In the case at hand, though the executive complied with the requirement of publishing and notifying the rules, there was no much difference between the draft and final rules. This was mainly because these rules were completely new to the public as they were unaware about it during the initial stages of the rule. This is where the role of anti natal publicity comes into being. It is practically impossible to immediately give give opinion on a completely new rule without having any prior knowledge about it. Thus, it is humbly submitted before the honourable court that delegated legislation, public or private, does not come into effect until properly published from the very beginning, 41 and no person can be convicted under or affected by such legislation unless it has been made reasonably accessible to him. 42 2.2 Publication Of Delegated Legislation In The Context Of Different Jurisdicti ons In India, the Supreme Court has held that publication in an Official Gazette is mandatory. The enabling Act too, is of the same opinion. This serves as conclusive proof that rules which have been made by the exercise of a power, after previous publication, have been duly made. The failure to do so would result in vitiating the rule and this cannot be cured by a statutory provision, which would in turn protect the rules from being challenged in Court. Where the mode of publication is prescribed in a statute, the rules have to be published accordingly and if the case is such that they are required to be published by a notification in the Official Gazette, they will take effect from the date of such publication. Rule 271 of the Rules of Procedure of the House of the People provides that delegated legislation shall be numbered centrally and published immediately after its promulgation. However publication of delegated legislation here is quite unsatisfactory in nature and it needs to be improved. In cases of statutes which require previous publication, the guidelines have been laid down in Section 23 of the General Clauses Act, 1897. As per this, it is the responsibility of the rule-making authority to publish for general information, a draft of the proposed rules and also a notice fixing the date on or after which the rules will be taken into consideration. All objections or suggestions received in response are also required to be taken into consideration. 43 The

41

Harla v. State of Rajasthan, AIR1951 SC 467.

42

David Lanham, Delegation of Governmental Power to Private Parties, 6 OTAGO L. REV. 50 (1985-1988).

43

supra note 34.

20 | P a g e


Supreme Court in a number of cases like State of Kerala v. P.J. Joseph, 44 Narendra Kumar v. Union of India,45 Raza Buland Sugar Co Ltd v. The Municipal Board, Rampur ,46 etc. held that a statutory provision requiring previous publication of rules was mandatory. Section 15 of the Central Tea Board Act,1949; Section 30(3) of the Chartered Accountants Act,1949 and Section 43 of the Co-operative Societies Act,1912 are a few examples where it was provided that the rules must first be published in draft form to give an opportunity to the people to have their say in the rule making. In England, Section 1 of the Rules Publication Act, 1893, states that notice of the intention to make certain types of regulations should be published in the London Gazette forty days before they were made. This was necessary so that interested bodies could make representations to the concerned departments. The Rules Publication Act has now been repealed by the Statutory Instruments Act, 1946, which did not replace Section 1 by any corresponding provision. Thus, statutes do provide for the publication of notices, the lodging of objections, and the holding of public inquiries or private hearings before regulations are made. When Lord Hewart posed the question, "Does any human being read through this mass of depart-mental legislation?", the law answered it in the affirmative as ignorance of the law is in general no excuse for those who contravene it. By the Rules Publication Act, 1893, the intention of the Parliament was to first make a provision for the systematic publication of statutory rules and orders, which are currently known as statutory instruments. These indexed volumes of statutory instruments are published annually, excluding instruments of local, temporary or confidential nature or those already available in another series. These are also sold by His Majesty's Stationery Office, which is in-charge of publishing monthly lists. This was done as it was impossible to determine the effect of instruments without proper guidance. Notwithstanding the maxim ignorantia iuris neminem excusat , it was held in the case of Johnson v. Sargant ,47 that a statutory order did not take effect until it "became known" by publication to the interests affected. 48 Though doubts were

44

State of Kerala v. P.J. Joseph, AIR 1958 SC 296.

45

Narendra Kumar v, Union of India, AIR 1960 SC 296.

46

Raza Buland Sugar Co Ltd v. The Municipal Board, Rampur, AIR 1965 SC 895.

47

Johnson v. Sargant, [1918] 1 K.B. 101.

48

D. J. Lanham, Delegated Legislation and Publication , 5 THE MODERN LAW REVIEW 37, 510-524 (Sep. 1974).

21 | P a g e


raised regarding the correctness of this decision, Section 3(2) of the Statutory Instruments Act clarified it by stating that no proceedings may be taken in respect of the contravention of any instrument issued by the Stationery Office unless it has been published or otherwise brought to the notice of interested parties at the date of the offence. Thus, there is undoubtedly a pressing need for a system whereby adequate publicity is given to all documents which purport to have direct effect on the rights of the public.49 In 1944, a Select committee was also appointed to look into those cases where there has been unjustifiable delay in publication.50

In New York State:

"No rule or regulation made by any State department . shall be effective until it is filed in the office of the Department of State; the legislature shall provide for the speedy publication of such rules and regulations by appropriate laws."

Legislation about publication, in the opinion of Robert M. Benjamin, should provide for filing a comprehensive statement of all rules and regulations (and periodical supplements) in the office of every county clerk for public inspection, and for distributing copies to colleges and universities and public law libraries. This report submitted by him at the request of Governor Lehman in 1942, on administration adjudication in the State of New York was regarded as a well-considered observation on the control and publication of departmental legislation.51 In the United States the long-standing practices of antecedent publicity and semi-judicial hearings by rule-making authorities have been reinforced by section 4 of the Federal Administrative Procedure Act, 1946 and other legislations.52 Under the provisions of the Federal Register Act, it is expressly provided that no document required to be published under the Act ' shall be valid as against any person who has not had actual knowledge thereof

49

S. A. de Smith, Delegated Legislation in England, 4 THE WESTERN POLITICAL QUARTERLY 2, 514526 (Dec., 1949). 50

J. A. G. Griffith, Delegated Legislation: Some Recent Developments, 3 THE MODERN LAW REVIEW 12, 297-318(Jul., 1949). 51

supra note 30.

52

supra note 22.

22 | P a g e


until it has actually been filed for publication. 53 Here, a proposed rule is published in the Federal Register which is subscribed to by many people who are interested in particular sorts of regulation. It also includes many of them previously unknown to a rulemaking agency. The notice invites comment and often triggers an outpouring of responses. Commentators can read the comments made by others in the rulemaking file and respond to them. This is almost an inevitable consequence of the growth of delegated legislation as economic and other groups in the community become organised and vocal, and as more and more legislations affecting them come into existence, administrators tend to turn to them for information and their points of view. The Federal Register has thus led to the advancement of postnatal publicity.

From all the above scenarios the court can derive and conclude that the most important thing here, of course, is the adequate publication of the delegated legislation itself.

2.3 PUBLICATION AMOUNTING TO CONSULTATION CONTRIBUTING TO THE I NCREASED EFFICACY OF DELEGATED LEGISLATION Those who make delegated legislation often consult experts in those relevant fields as well as those bodies who are likely to be affected by it. 54 This technique is characterized as “the democratization of rule-making process” and it also helps to avoid clashes between the departments exercising legislative power and the interest most likely to be affected. 55 Consultation of interests is of utmost importance and solves much of the constitutional problem involved in the delegation of legislative power. The legitimate expectation and the precise ambit of duty to consult are also very clear.56 This is why, it is rightly said by Sir W. Graham Harrison that: 57

53

Bernard Schwartz, Delegated Legislation in America: Procedure and Safeguards , 4 THE MODERN LAW REVIEW 11, 449-465 (Oct., 1948). 54

supra note 34.

55

supra note 38.

56

P P CRAIG, ADMINISTRATIVE LAW, (5 th ed. 2003).

57

supra note 49.

23 | P a g e


“No Minister in his senses with the fear of Parliament before his eyes would ever think of making Regulations without (where practicable) giving the persons who will be affected thereby (or their representatives) an opportunity of saying what they think about the proposal.”

A plausible explanation for the British attitude, that rulemaking is a non-problem, is that officials routinely conduct informal consultation with interested groups before regulations are adopted.58 Here, before a department makes regulations, it consults the organized interests likely to be affected in order to avoid criticisms. In certain cases, the enabling statute expressly enjoins this prior consultation. 59 With respect to the main body of delegated legislation, the prevailing view today is that established practices of consultation with organized interests or statutory obligations to consult with advisory bodies are in general satisfactory safeguards.60 In Rollo v. Minister of Town and Country Planning ,61 Bucknill, L.J., stated:62

“In my view . . . [consultation] means that, on the one side, the Minister must supply sufficient information to the local authority to enable them to tender advice, and on the other hand, a sufficient opportunity must be given to the local autho rity to tender advice.”

It is considered as one of the most important safeguards that can be invoked before the regulations are made. Under a scenario of increasing number of statutes, a consultation with a named advisory body or other organized interest is highly obligatory before regulations can be made. These practices of consultation and conference have thus become standardised through the establishment of advisory committees drawn from an industry. The growing use of such advisory bodies to assist government in the performance of its duties have been characterised as 'one of the most striking developments in British constitutional practice since 1919 '. 63 58

supra note 38.

59

supra note 30.

60

supra note 49.

61

Rollo v. Minister of Town and Country Planning, [1948] 1 All ER 13.

62

supra note 50.

63



Consultation is further divided into ordinary types of consultation and extra-ordinary types of consultation in the English Law. Ordinary types include individual objections and consultation with specified interests and extra-ordinary types include preparation by affected interests and approval by statutory body. In India, consultation can be further divided into various categories like official consultation, consultation with Statutory Boards, consultation with advisory bodies, making of draft rules by affected interests etc. 64 When consultation is specified by a particular enabling statute, failure to comply with the duty will generally result in the order subsequently made being held to be void ('procedural ultra vires'). Both British and American courts demand, firstly, that consultation must be at a time when proposals are still at a formative stage. Secondly, the proposer must give sufficient reasons for any proposal to permit intelligent consideration and response. Thirdly, adequate time must be given for consideration and response. Finally, the product of the consultation must be conscientiously taken into account in finalizing statutory proposals. Beyond doubt, there is room for he the practical problem of time, cost, and delay as making administrative decisions after consulting a wide range of affected interests will eventually slow down the pace of decision-making and will cause increased costs for the administration. But at the end of the day, such costs are worth bearing. As the American scholar Arthur Bonfield points out that:65

“the immediately more expensive procedural requirements ... might be likely to reduce societal costs in the long run. They might result in better rules. Better rules would reduce the need for subsequent agency proceedings to cure earlier mistakes."

In the present case none of the above mentioned criterias were followed and therefore the issue raised by XYZ regarding the legality and correctness of the rule due to lack of proper consultation at the time of drafting, pre-publication, consultation, post-publication, compilation and laying remedial parameters can be rightly justified. Since the public were excluded from all these from the initial stages, it can be considered as an arbitrary and illegal decision infringing the principles of Natural Justice. It is therefore humbly submitted to the

64

supra note 38.

65

Hermann Punder, Democratic Legitimation Of Delegated Legislation-A Comparative View On The American, British AndGerman Law, 58 INT'L & COMP. L.Q. 353 (2009).

25 | P a g e


Court that the development of prior publication and consultation of interests as a safeguard, would be watched with particular interest as it provides an answer to charges of "bureaucracy" and helps departments to fulfill the purposes their legislation is intended to serve.66 Moreover, it also helps to scrutinize the delegated legislation in a systematic manner, thereby enhancing the protection of citizens' rights and promotion of the rule of law. 67

III Control Mechanism Of Administrative Rule Making In Western Sahara Does Not Protect The Individual Rights And Private Interests Guaranteed By The Constitution

“If we do not have a consensus of what „rights‟ are, there is little ch ance our few will survive.” - Ron Paul Your lordship petitioners in this case would like to submit with all humbleness that the control mechanism of administrative rule making in Western Sahara is violative of individual rights and private interests guaranteed by constitution. The prime motto of constitution is to protect the individual rights of the citizen of the nation but unfortunately sometimes the provisions of constitution are misused. 3.1 The Discretionary Powers With Administrative Authority Are Tool For Arbitrariness The present times have witnessed considerable change; two major changes which have occurred in the field of governance are: First is that the administrative bodies are empowered with wide ambit of powers which have given rise to the practise of discretionary powers, which affects the life of individuals on daily basis. Secondly, a feeling of discontent has taken place amongst general public that such powers are birth place for maladministration and corruption in administration. The past years have marked the phenomenal change in the acquiring of the vast discretionary powers by administrative authorities and the exercises of such powers are left to the subjective satisfaction. According to K.C. Wheare, “It is not eccentric to conclude that if there is more Administration, there will be more

66

supra note 49.

67

Rehema Mkuye, Controls and Safeguards of Delegated Legislation: a Case Study of Tanzania, 9 EUR. J.L. REFORM 205 (2007). 26 | P a g e


Maladministration.68 The case of Susannah Sharp v. Wakefield 69s described discretionary powers as: Discretion means when it is said that something to be done within the discretion of the authorities that something is to be done according to the rules of reasons and justice, not according to private opinion, according to law and not humour. It is to be, not arbitrary, vague and fanciful, but legal and regular. And it must be exercised within the limit, to which an honest man competent to the discharge of his office ought to confine himself.” Petitioner would like to argue that though the powers conferred to administrative authority in Western Sahara are abusing the powers handed to them. According to Markose, abuse of power occurs when the mode of exercise of power is unreasonable.70The facts states that people of Western Sahara demanded for an accountable government and for the same cause an independent judiciary and a so called system of „checks and balances‟ was enacted. But, as it always happens how effective this system is and is it implemented properly. Petitioner here humbly argue that The petitioner would like to substantiate his arguments by presenting examples of maladministration by the administrative machinery when excess discretionary power has been given. Cases regarding the discretionary powers conferred to administrative authority in excess: In Government of Andhra Pradesh and Ors. v. M.T. Khan 71, this case raised the issue pertaining to the ambit of article 161 of the constitution. The main issue in this case was regarding the clemency power of governor under Article 161 of constitution, do governor can issue remission to prisoner who is convicted outside the jurisdiction of state but imprisoned in the state itself. The court, asserted that it would be excessive jurisdiction. In the case of OnkarLal Bajaj v. Union of India 72 government cancelled the allotments of petrol pump on the mere doubt of involvement of political patronage in allotment. The

68

supra note 19.

69

Susannah Sharp v. Wakefield, 1891 AC 173, 179 : (1886 -1890) All ER Rep 651 (HL).

70

supra note 19.

71

Government of Andhra Pradesh and Ors. v. M.T. Khan , AIR 2004 SC 428 : (2004) 1 SCC 616.

72

OnkarLal Bajaj v. Union of India AIR, 2003 SC 2562 : ( 2003) 2 SCC 673. 27 | P a g e


honourable SC looked into the matter and announced it to be violative of article 14 and being arbitrary action. In the case of Chandra Bansi Singh v. State of Bihar 73 , this case again had the traces of favouritism in it which was declared by SC as violative of article 14. In State of Madhya Pradesh v. Ramshankar Raghuvanshi 74, this case was related to termination of teacher from his job on the ground that he was having connections with Jan Sangh and RSS. Supreme Court in this case decided that the action taken is arbitrary and association with any political party can‟t be ground for termination of job. Hence, action taken is unreasonable and violative of article 14 and 16. In the case of R v. Minister of Transport, ex Upminster Services Ltd.75 minister not having power to revoke the license revoked it, the action of Minister was ultra vires. Same cases of ultra vires authority have happened in India too. In case of Newspapers Ltd. v. State Industrial Tribunal 76 the same issue of ultra vires act was dealt with. Thus counsel for petitioners would like to plead that as the above case have shown if more discretionary powers are given more the fear of misuse and abuse rests, that leads to compromise to the greater need that is the protection of private rights and personal interests of individuals. 3.2 The System Lacks Independence Of Judiciary, Hence Abuse Of Powers By Administrative Authorities Thereby the petitioners would like to submit to the honourable court that the power of judicial review should be provided to the courts. The power of judicial review will establish the rule of law in Western Sahara. The highest interpreters of law are Supreme Court and high courts and hence the power to limit the legislatures and executives should be vested on them so that they do not cross the set limit thereby hampering the individual rights. It can be easily concluded that power of judicial review is main essence of rule of law. 77 In the case of

73

Chandra Bansi Singh v. State of Bihar, AIR 1984 SC 1767:(1984) 4 SCC 316.

74

State of Madhya Pradesh v. Ramshankar Raghuvanshi, AIR 1983 SC 374 : ( 1983) 2 SCC 145.

75

R v. Minister of Transport, ex Upminster Services Ltd., (1934) 1 KB 277: 1933 All ER Rep 604 (CA).

76

Newspapers Ltd. v. State Industrial Tribunal, AIR 1957 SC 532:1957 SCR 754.

77



case of R.K. Jain v. Union of India 78 it was stated by the court that the “the power of judicial review is an integral part of our constitutional system and without it, there will be no government of laws and the rule of law would become a teasing illusion and a promise of unreality. The judicial review, therefore, is a basic and essential feature of the Constitution and it cannot beabrogated without aff ecting the basic structure of the Constitution.” Judicial review has one main objective and that is to ensure that the powers conferred to the authorities are not misused and the principle of equality as embedded in almost all constitutions of world is followed uniformly, and authorities should always decide according to what is fair and just.79 Court in the famous judgment of Minerva Mills v. Union of India 80, said that a total distinct organ is established to look into the disputes and that branch is judiciary .

3.3 Lack Of System Of Checks And Balances: Specifically Institution Of Ombudsman Creates Arbitrariness Ombudsmen are like a check to the administrative functions. The given facts have no such elaboration and hence the high probability of misuse of power can occur. Petitioners allege that the power exercised by administrative authority in Western Sahara are highly misused and abused so a need of institution of Ombudsman should be established.

Also, the

institution of Ombudsman should also be established. As the situation stands today, the contest between the individual and the government is an unequal one and is heavily loaded against the individual. 81 The need of Ombudsman is an important aspect in present day context because judiciary can‟t have access to each and every aspect of administration and the affair of cost is costly for many people so the ombudsman practise can help people for speedy trial and fast disposal of administrative malfunctioning.82 Also, it is necessary to mention that legislature too run with shortage of time and with loads of work and hence they can‟t entertain individual grievances. The legislatures have lot of policy making and other legislative actions to look into which make them incapable to have proper check on

78

R.K. Jain v. Union of India, 1993 4 SCC 119, 168 : 1993 SCC 1128.

79

supra, note 19.

80

Minerva Mills v. Union of India, AIR 1980 SC 1789.

81

M.P. Jain, Administrative Law, Vol 2, p 2428.

82

Id. 29 | P a g e


legislative actions. Supreme Court in G.Sadanandan v. State of Kerala 83 case stated that “continuous exercise of the very wide powers conferred by the Rules on the several authorities is likely to make the conscience of the said authorities insensitive, if not blunt. The court quoted that if such powers are used in casual manner they can cause damage to the basic fundamental principle of democratic society. The essential quality of constitution that even during the situation of emergency the fundamental rights of citizens can‟t be taken away and hence such issues gave birth to the concept of Ombudsman and especially in the Scandinavian countries and later it was also adopted by commonwealth nations. This institution was adopted because of failing efficacy of administrative control and misuse by the authorities.

84

Ombudsman acts as an outside agency, an agency outside the reach of

administrative authority to probe the administrative faults. Ombudsman deals with the individual grievances against the administration, they deal with maladministration and „bad‟ administration of the administrative authority. Ombudsman is one of the most influential post and can also have access to all data‟s and departmental files. Also, on filing of a complaint ombudsman can issue the order to check the departmental files and can look if any fault exists as complained. Unlike to the courts taking the case to the ombudsman is much cheaper and hence ombudsman himself is the aggrieved lawyer. The role of ombudsman is not limited to solving administrative disputes but also it prevents the future damage and it functions as preventive too. The ombudsman doesn‟t portray administrative agencies as negative but cases where they are at no fault they also pass positive remarks. Basic purpose for which the institution of Ombudsman came was to protect the individual rights. 85 Thus, by substantiating the facts and looking into the situation of Western Sahara the present control mechanism lacks many important aspects that fails to protect the individual rights and interest and hence petitioners would

humbly like to submit in front of this honourable

bench that the present control mechanisms against administration fails to deal with mala fides and thus, the principle of Judicial Review and the Office of the Ombudsman shall be looked into, so it is suggested.

83

G.Sadanandan v. State of Kerala, AIR 1966 SC 1925.

84

Id.

85

Id. 30 | P a g e

Admin Moot Memo-FINAL

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