Author – Kishan Bansal

Abstract

In the paper, the author dwells upon the enforceability of the administrative direction in the Indian courts. Administrative directions have remained an important tool in the hands of the executive to fill up the gaps present in the law. However, Indian court has taken a varied stance with respect to the enforcement of such directions. The paper discusses the benefits of administrative directions in the present legal system, and analyse various judgments to gain an insight on the enforceability of these directions. While doing so, a timeline is drawn which shows the position taken by the court with respect to issues arising from administrative directions. In the end, a conclusion is drawn highlighting the positive approach of the Indian courts towards the enforceability of administrative directions. 

Keywords: Administrative directions, Administrative law, Executive, Enforceability, Indian judiciary.

Introduction

The administrative direction in an essence is a power given to the executive to fill in the gaps prevalent in the existing law. The objective is to prevent arbitrary exercise of power. Mostly, a higher authority issues it to a subordinate authority or to the public to inform them about the change in the policy decisions. However, it always lacks statutory backing. It is in the sense that no statutory authority is required for the executives to give a valid administrative direction. The power to issue directions flows from the general administrative powers under Articles 73 and Article 162 of the Indian Constitution. The instructions/directions issued can vary from being binding or directory and generic or specific in nature. It all depends on the source of the power from where it has been conferred which determines the nature of these instructions. However, in most cases, they do not create a right or impose an obligation against any person or the administrator because of which they are unenforceable in the Courts. Administrative directions are generally issued through a Circular, letter, Memo, Public notices, Pamphlets, press notices, and notification in the government gazettes. Now, one of the issues existing in the administrative directions is that a specific direction issued even without statutory backing is mandatorily followed by the administrative officers. It happens because unfollowing can always lead to disciplinary actions against them. But it is important to note that such directions can never be granted protection or enforced by the judicature.

Need for Administrative Direction

This concept of issuing an administrative direction is a modern function of the executive. However, it has been preferred by them in certain situations. Sometimes, administrators prefer to use direction over statutory rule to save them from the hassle which is caused while enforcing the latter like laying before parliament for approval, publishing in the official gazette, etc. The fact that these directions are not rigid, it a great way for the administrator to use this flexibility on time when any new problems arise in any law affecting a lot of people, and prompt action is required by them which can be fluid and changed at a later stage. Using directions as a prompt action at times when the situation is new leads to gain in experience which can be used later while making the statutory rules.  At the time of temporary usage, administrative directions are better than rules as through the former creating an administrative guideline will provide a quick, easy solution to the public affected by it.  The Supreme Court in the case of P.H. Paul Manoj Pandian v. P. Veldurai has talked about the legal importance of the Administrative Direction at length.

Can Administrative directions be held enforceable in the Court?

The Indian Judicial system has always taken a contrary stance on the issue of when can an Administrative direction be held enforceable. Judges in different cases have provided different reasons leading altogether to confusion for the general public. However, one of the important factors considered by them while giving their judgments was whether the particular administrative direction had statutory backing or not and in cases of no statutory backing if it is going against the already existing rules or not. In the case of Delux Land Organisers V. State directions were issued by the central government under the Urban Land (Ceiling and Regulation) Act, 1976 and they were held valid. In State of Punjab & Anr. v. Hari Krishan Sharma the directions issued were not backed by any statutory rule. So, it was held that no direction can be issued. Both these cases are an example of the relevance of statutory backing. 

In G.J. Fernandez v. State of Mysore, there was no statutory backing making the directions issued unenforceable in the court. However, one interesting thing, in this case, was a violation of these directions by the administrator leads to disciplinary action. A similar view was also taken by the court in the case of Chief Commercial Manager, South Central Railways, Secundrabad v. G. Ratnam where not following the administrative direction exposed the investigating officer to disciplinary action. An interesting stance was taken by the court in Raman and Raman Ltd. v. State of Madras where it was held that the direction issued under Section 43-A of the Motor Vehicles Act, 1929 lacked the force of law. 

Usually, this was not the case, but this specific judgement shifted the focus from the statutory backing to other factors like the context, object, occasion of the issuance of instruction, etc. The judgment amplified the portfolio for future judgments deciding on the enforceability of the administrative direction. The Indian Judiciary also created confusion with respect to whether the administrative direction can supersede the statutory rules or can only supplement them. One of the prime examples is the case of Jagjit Singh v. State of Punjab where the Supreme Court held that administrative directions when do not go against the statutory rules become both binding and enforceable. However, a contrary stance was taken by the court in the case of Amitabh Shrivastava v. State of Madhya Pradesh where the administrative instructions modified the statutory rights but were still held enforceable through the court and the justification for this was that the government who made the rules never contended the enforceability of such administrative direction in this case. This is an incorrect interpretation as it clearly shows bias on the part of the government for a specific individual and the court rather than doing their job of keeping a check on the actions of the legislatures rendered an unjust decision. The whole reasoning was based on the strict interpretation of law where the judiciary recognizing the separation of power did not step in between the working of the legislatures. However, as an aftermath, the Supreme Court finally in the case of C.L. Verma v. State of M.P. cleared the confusion created by them and held that administrative direction cannot go against the statutory provisions. 

The current situation on this can be explained through the case of Mahadeo Bhau Khilare v. State of Maharashtra where the Court held any scheme formulated by the administrative direction against the statutory regulations cannot be sustained. Apart from the presence of statutory backing, there are other factors on which the enforceability of the administrative directions depends. Like in the case of Union of India v. K.P. Joseph it was held that because the direction contained assurances based on which the third party acted, it created justiciable right. In B.S. Minhas vs Indian Statistical Institute the court held that the bye-laws in this case which were administrative directions will be enforceable and followed as they avoid arbitrariness and promote fair play. In State of Uttar Pradesh v. Chandra Mohan it was held that when the administrative directions fill the gap in the provisions, they become binding in nature. A similar view was taken by the Court in State of Gujarat v. Akhilesh C. Bhargav & Ors and Sant Ram Sharma v. State of Rajasthan that when the rules are silent on a point then the government can use administrative directions to fill up the gaps and supplement the rules.

Conclusion

From the above discussion, it can be determined that the concept of administrative direction even when is relatively new but is an important function of the executive. The judiciary always had a contrary stance on which administrative directions are enforceable in the court of law. Theoretically, it is not supposed to create a right or impose an obligation on any individual but in some cases court has held it to be enforceable depending on different factors. It seems very discretionary of the judges to allow the direction enforceable in some cases, but this discretion cannot be made into proper guidance as the enforceability of the administrative direction should always be decided on the case-to-case basis. However, while analysing the case laws there are some instances where the judiciary has always taken a stance in the favour of administrative direction like when it fills the gap, promotes fair play, creates a right, etc.