This article has been written by Samarth Suri, from Symbiosis Law School, Noida. The article briefly discusses the rationale behind Administrative directions and which one of the Administrative directions are enforceable and which ones aren’t.
Table of Contents
In India, there are three main parts of the government i.e- the legislature, executive and the Judiciary. Briefly put the Legislature formulates the laws, the executive overlooks their implementation and the Judiciary acts as a watchdog of this mechanism. The legislature tries its best to take into consideration all practical aspects of law but there are still some lacunae particularly in its implementation. This paves way for the need of administrative directions.
Taken from a birds eye view, the need for administrative directions arises for the smooth and efficient functioning of the administration. Hence, administrative directions are those directions which are given by superior authority to a subordinate authority for the proper implementation of rules.
There are various types of administrative directions and over the span of development of law some have been regarded as valid and others as invalid.
- When power is conferred on a specified authority by the statute and directions come from a superior authority.
- When the power is conferred on a specified authority by the statute, but that authority sub delegates the power and directions are issued by this authority to the delegate.
- When the power is conferred by a particular statute on the President or the governor as the case may be and such authority gives directions to civil servants.
There are a few basic reasons that necessitate the existence of administrative directions. First is because of the wide discretion that the executive has to deal with people’s problems at the grass root level. Another reason for the preference of administrative directions over statutory provisions is the level of convenience in both.
Statutory provisions need drafting, then have to be passed by both Houses of Parliament and assented by the President, whereas in comparison administrative directions are more convenient to concoct and subsequently implement. Besides this administrative directions also help in areas where the exigency faced is completely new and unlike any that has been seen before, in such situations administrative directions allows the usage of the trial and error method. Hence, the existence of administrative directions allows for stability to be achieved in case an exigency that has not been countered in the past arises. Therefore the sacrosanct nature of administrative directions lies in the ease of their use and implementation.
Nature, in cases of statutory backing
Any administrative direction that is backed by a statutory provision, which is issued by a higher authority to a subordinate one will have binding authority on the latter. This was held in the landmark case of Delux Land Organisers v. State, wherein directions issued by the Central Government under Section 36 of the Urban Land (Ceiling and Regulation) Act 1976 were held to be binding on the state government.
In this, it is imperative that such direction is backed by a statutory regulation , this is so because if in an act there is no provision for the higher authority to give directions to the lower authority, that would mean, that it would have been the intent of the act to let the lower authority function on its own without any interference. Essentially determining the nature of administrative directions would mean construing their enforceability.
This peculiar point came up for review in the case of Collector, Ongole v. Narra Venkateswara, in which the district collector ordered the acquisition of land under Section 4(1) of the Land Acquisition Act, 1894. This land acquisition was further challenged on the ground that for forfeiture of land beyond a certain sum permission had to be taken from the government.
The Supreme Court held that although the proper guidelines have not been followed and prior permission from the government has not been taken, that would still not make the directive as void, although disciplinary actions may be taken against the officials. This is not to say that even despite statutory force a direction may be held as binding on a subordinate authority.
Unenforceability, in case there is no statutory backing
As has been stated above, for any administrative direction to flow it is essential that it has statutory backing in the first place. A case in this regard is the Commissioner of Police v. Gordhandas Bhanji, in this case the commissioner of police, was designated as the cinema licensing authority under the Bombay Police Act, 1902. A situation arose in which the commissioner cancelled the license of a cinema on the direction of the Government of Bombay.
The Supreme Court held that only the commissioner had the authority under the statute to give licenses and there was no express provision that provided for any direction being issued by the government and hence the cancellation in the instant case will be held void to that extent.
In another case, Sri Ram Vilas Service v. Road Traffic Board, the Madras Government issued guidelines that need to be followed by the traffic board authority to grant license to different transport carriers. The Madras High court held that there was no provision in the Motor Vehicles Act 1988 that allowed for such directions to be issued by the government to the subordinate authority, except a notification made under Section 43 of the Act.
It was held by the Court that the boards are completely independent and their independence is necessary for their proper functioning and necessary in the interest of justice. Post this amendment was brought about in the Motor Vehicles Act, 1988, which inserted Section 43A, which authorized the government to issue directions of general character to the transport authorities who were required to comply with them.
Another such example where there is an expression provision in an act that allows for the higher authority to issue directions to the subordinate one, is in the Income Tax Act, under Section 119 of the IT Act 1961, all the persons and officers employed in the execution of the act have to observe and follow orders of the central board of direct taxes, further sub-clause (2), requires every income tax officer to follow instructions issued to him by the director of inspection or by the commissioner of by the inspecting assistant commissioner.
Whether an authority who has subdelegated its powers, be able to issue administrative directions
There is no Indian case law that directly deals with this point, however, one case in which this point was briefly discussed was Mahadayal Premchandra v. Commercial Tax Officer, in which an assistant commissioner had delegated his own powers of assessment to the commercial Tax officer. When the appellants came before the latter, he rather than using his own judgement gave the right of opinion to the former. The Supreme Court quashed the assessment on the ground that the Commercial Tax officer did not exercise the powers himself and the principles of natural justice were violated.
However in contrast to this is the English case law of Huth v. Clarke, in which it was held that delegation of power by an authority does not divest it of its power, the authority and power continues to be in itself. This assimilates delegation and agent, the court explained that the agent is only authorized to carry out the functions that are given to him by the principal, whereas the principal still has the authority to exercise any or all of the functions.
A decision in complete contrast to this is the decision of Backpool Corporation v. Locker, wherein the minister of health delegated his powers to requisition houses to the Blackpool corporation. It was held by the court that the minister of health would not retain his powers and would not be able to give any directions to the corporations. Through this, the Court construed the dichotomy between agency and delegation and that both of them are different concepts , that the power might remain the principal in principal agent relation but the same would not be the case when such powers are delegated to another authority.
In support of this view is Simms Motor Units Ltd v. Minister of Labour And National Service, wherein the minister was authorized to delegate his powers to a designated official, upon doing so he was not allowed to even have discretionary power over the work of that official, It is essential to bear in mind that the purpose of delegation is to lighten the workload of the delegating authority. Since the delegating authority is already overburdened with his responsibilities, it cannot be expected of him to bear the necessary expertise that is required by the delegate to carry out the work.
Further, the control and supervision of the delegate may strife his responsibilities and may not be in the best interest of administrative efficiency. Then it is the delegate who is to be dealing with the cases and follow a consistent policy, interference by the delegating authority may result in discrimination.
Exceptions- Law with respect to Quasi-Judicial bodies
The next thing that would come as a logical extension of the rules relating to administrative direction is whether these directions can be given to a quasi-judicial body even if there is an express provision in the statute.
This particular aspect was seen in the case of Rajagopala Naidu v. State Transport Appellate Tribunal, under this the Motor Vehicles Act under Section 47grants a wide authority to the regional transport authority for granting stage carriage permits, one of their granting factors being “interest of public generally”, in order to regulate this the Government of madras issued some guidelines under section 43A of the Act.
A dissatisfied applicant challenged the action of the government. He relied upon previous decisions that stated that those authorities were dispensing Quasi-Judicial functions and therefore the direction of the Madras Government will have no statutory backing. The Supreme Court held that direction could not be issued to such bodies while they are dispensing Quasi Judicial functions.
When the statute confers such an authority over the President or the Governor
- The government is an abstract body which acts through its ministers or civil servants. The President is the chief executive of the government of India and according to Article 53(1) of the Constitution of India 1950, all executive powers of the union are exercised by him either directly or through officers subordinate through him in accordance.
- To enable the president to subdelegate his powers Article 77(3) of the Constitution of India 1950 provides that the President shall make rules for more convenient transactions of the business of Government of India and for the allocation among ministers of the said business.
- Therefore, when a power is conferred on the government, it is generally to be discharged in accordance with the Conduct of Business Rules made by the President under Article 77(3).
Upon this detailed analysis a few conclusions can be drawn:
- When the power is conferred on a specified authority by the statute but that authority subdelegates its powers, then whether he/she will be able to give instructions or not will depend upon the nature of the instrument.
- In none of the above situations any directions could be issued to a quasi-judicial Authority.
- When the power is conferred on a specified authority by the statute, then any higher authority cannot issue guidelines, unless there is a provision in the statute providing t the contrary.
- When the power is conferred by a statute on the government, the exercise of that power by an oficial could be controlled by the minister concerned, unless the power of sub-delegation is used by the exercise by the government under a statute.
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