Admin Moot Memo-FINAL

ADMINISTRATIVE LAW MOOT - 2013
Before
THE HONOURABLE HIGH COURT OF WESTERN SAHARA

XYZ.................................................................PETITIONER
v.
STATE OF WESTERN SAHARA............................RESPONDENT

MEMORANDUM for PETITIONER

MEMORIAL FOR THE PETITIONER
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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 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 After Proper Publication
.......................................................................................................................................... 18
2.2 Publication Of Delegated Legislation In The Context Of Different Jurisdictions ..... 20
2.3 Publication Amounting To Consultation Contributing To The Increased Efficacy Of
Delegated Legislation ...................................................................................................... 23
III CONTROL MECHANISM OF ADMINISTRATIVE RULE MAKING IN WESTERN SAHARA
ADEQUATELY PROTECT THE INDIVIDUAL RIGHTS 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 Territory 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).
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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.

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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.
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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.
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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. Ryan
11
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.
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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 AND 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.
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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
22
and Jalan Trading Co. v.
Mill MajdoorSabha
23
the 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, SDRs, 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.
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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 Honble 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.
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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.
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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, (7
th
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.
19 | 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, (7
th
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.

20 | 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 Jurisdictions
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.

21 | 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).

22 | 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, 514-
526 (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.

23 | 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 INCREASED
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.

24 | 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 authority 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
supra note 49.
25 | P a g e

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).

26 | 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 chance 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).
27 | P a g e

Maladministration.
68
The case of Susannah Sharp v. Wakefield
69
s 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.
70
The 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.
28 | 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 cant 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
supra note 19.
29 | P a g e

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 affecting 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 cant 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
cant 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.
30 | 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 cant 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 datas 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 doesnt 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.
31 | P a g e

PRAYER

In light of the facts of the case, arguments advanced and authorities cited, it is humbly
requested that this Honourable Court may be pleased to adjudge and declare that-
1. Delegation of essential legislative functions is not permissible on the grounds of
efficiency, expediency or public necessity

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

3. Control mechanisms of administrative rule making in Western Sahara does not protect
the individual rights and private interests guaranteed by the constitution
Any order or further relief or direction which the Honourable Court may deem fit and proper
in the light of justice, equity and good conscience.
All of which is most humbly prayed
Sd. /-
- Counsel for the Petitioner.
Submitted by
Arman Das - 2010/B.A.LLB/012
Honey Mariam Jacob 2010/B.A.LLB/022
Sumeha Kalla 2010/B.A.LLB/052

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