The role and power of administration is nowhere defined. Anything that is not covered by either legislature or judiciary, is the job of administration, basically carrying on the general working of the state. There is also a possibility of overlap of these functions as long as the essential functions of concerned department are not taken away. Thus administration has very extensive powers. According to Sundarjas Kanyalal Bhatija And Otherrs v. Collector, Thane , the Supreme Court of India has declared various acts of Executive as legitimate thus giving them huge powers also by not attracting principles of natural justice towards the administration. But along with applying certain limitations on its power.
DECISION MAKING POWER
In the case of Aeltemesh Rein, Advocate v. Union Of India And Otherrs , an interesting question came in front of the Supreme Court. The problem is that the executive are an organ of the state, thus is not directly elected by the people, now the question is whether they should be allowed to use discretion while doing their job. Justice Venkataramiah, while discussing the executive’s use of discretion, stated his views that there is certainly a need and a demand of discretionary power when it comes to executive doing their job, but it is also very important that this power should be exercised in a just, fair and reasonable manner. Thus we can say that on one hand this judgment tries to give huge powers to the executive, on the other hand it is also increasing the scope of judicial scrutiny of the acts of administration, as it is the judiciary which is going to decide what is just, fair and reasonable.
The other view to this can be that the Supreme Court is not limiting the power of executive as much it is limiting the power of individual citizens to reach out to the court as the court allows the administrative decision to be challenged only when the act concerns the public at large and not just a mere person. As a matter of fact, the Supreme Court in Saraswati Devi And Others v. State of U.P. And Others, tries to even limit the types of objections that can be raised against acts of administration and have laid down guidelines regarding the same.
LEGISLATIVE POWERS
It is evident that executive caries a lot of legislative functions. The question of amount of legislative power that the executive should enjoy has come to the Supreme Court many times. In this regard the supreme court has had different views and have tried to make the two ideologies to a consensus, one being that extensive legislative powers should be vested with the administration for its smooth functioning, other being that they should have only limited power and should only do its essential job of implementing laws.
Before the formation of constitution, the view of law according to Queen v. Burrah was that any substantial delegation of legislative authority by the legislature of the country is void. But this was overturned in In Re The Delhi Laws Act, 1912 v. The Part C States (Laws) Act, 1950 , in which the court affirmed the validity of delegated legislation in India. Also in this case certain guidelines were given for the delegation. Justice Kania gave the majority opinion stating that delegated legislation can be allowed as long as it does not affect the essential legislative function of the legislature.
The court in these cases has nowhere explicitly stated that what would be essential legislative function. Thus what amounts to essential legislative function would depend on the court. And also delegation should only be allowed if it does not affect the essential legislative function. Thus the court by not defining essential legislative function has ensured judicial scrutiny in complicated matters.
Apart from this there is also a concept of abdication test. In minority opinion of the court in Gwalior Rayon Silk Mfg. (Wvg.) Co. v. The Asstt. Commissioner of Sales was that the delegation of legislative power should be allowed as long as in lies with the legislature to repeal the enabling act of delegation. Though, due to being given by only a minority, this view is not prevalent but still it provides us with a different perspective and argument against the judicial scrutiny, also in favor of giving extensive legislative powers to judiciary. This is because we can say that legislature is consenting to the delegation of its power by not repealing the enabling act and thus delegated legislation should be allowed.
ANCILLIARY LEGISLATIVE POWERS
Apart from legislative powers the executive also has ancillary legislative powers which include modification, extension etc. of certain laws. There have been number of cases regarding this also.
The Supreme Court of India has said that the extent of powers of executive includes modification, but again the court has not given unlimited power and has given a sort of guideline regarding the same. In Lachmi Narain v. Union of India And Others , the court held that only those modifications should be allowed that are necessary. Also earlier in Rajnarain Singh v. The Chairman, Patna Administration , the court was of the view that modifications are allowed but the limitation is that essential features of the legislation cannot be modified. In this case the court held that the policy is an essential feature of legislation and change in policy by modification is not allowed. Still, nowhere has the court given out a specific list of what these essential features are, thus retaining with itself the scrutiny of acts of administration.
The other problem is retrospective effect of the laws applied by the executive. These laws can have negative impact as the people must face punishments or consequences for the acts did not use to be unlawful, but have become now, thus putting a huge burden on them. Thus in B. S. Yadav And Ors. v. State Of Haryana And Ors, the court opined that the executive can be allowed to make laws with retrospective application provided that it has some reasonable nexus with provisions of the act. It means that it can only be allowed if it can be proved that without the retrospective application the provisions of the act could not be complete. Thus again giving a limited power to the executive. A good thing is that it can be seen in cases like Union Of India And Otherrs v. V.D. Dubey and Miss Raj Soni v. Air Officer Incharge , that the court has been very progressive in this regard and always give decisions against retrospective application if it looks like the retrospective application can lead to harm of someone.
Other thing that the court has seen fit to intervene with is the publication of rules made by the executive. In Harla v. The State Of Rajasthan , the court has explicitly specified that it is mandatory to publish the rules made by the legislation. In Narendra Kumar And Ors. v. The UOI , the court even said that publication should be done in the manner in which it is specified in the legislation, otherwise the rule would not be applicable. If no mention of any specific method of publication, then the publication can be made in the official gazette.
CONCLUSION
Thus it is very difficult to make a binary of the role which is played by the Supreme Court of India on governing the actions of the executive. The problem here is that the Supreme court cannot-not give a good amount of the power to the executive as it would be very difficult for it to do its work of implementation of laws. On the other hand it has also limited its power so as it is not misused. Factors like public policy and individual justice also play an important role thus I think the drawing of a binary would be unhelpful in understanding the role the Court plays here.
Author- Himanshu Nandal
Class – BBALLB
College- Geeta institute of law, panipat
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