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Administrative Law (Notes for Exam)

Administrative Law (Notes for Exam)

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Published by: Ayon Basu on Apr 01, 2012
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Dear Reader,Please note that I have not written down notes for 3.4 (Administrative Appeal), 4.4.2(Constitutional imperatives and use of discretionary authority), 4.4.4 (Non-exercise of discretionary power), 5.3 (Exclusion of judicial review), 5.4 (Suits against administration),6.2.6 (Doctrine of legitimate expectation). For 3.4, you just need to know the meaning of administrative appeal, for 4.4.2 you just have to show how administrative discretion must beused to carry out constitutional directions, for 4.4.4 just write how discretion may bequestioned on the ground of non-exercise of such power. With respect to 5.3, you need writedown that HC’s power of judicial review cannot be excluded and mention L. Chandra Kumar’scase, for 5.4 you need to write down how the government and other authorities can be broughtunder the writ jurisdiction of the courts. Please remember that the writs to be used here areHabeas Corpus, Mandamus and Quo Warranto. Certiorari and Prohibition deal with judicialauthorities primarily. As far as 6.2.6, the doctrine of judicial expectation means that when theexecutive declares that it shall do a particular thing, there is a legitimate expectation on the partof the public that the government shall do the same with reasonable care and caution. Also, mynotes under the RTI Act are incomplete. For this part you need to know about the informationwhich may be disseminated as such, authorities and basic procedure under the act. Also, asregards the functions of ombudsman, just mention general functions and nothing more. Further,the important chapters for the examination are Chapter 1 (2 questions), 2( 2 questions), 4 (1question), 1 or 2 short notes with respect to the writs and 1 question with respect to the RTIAct.The source of my notes is MP Jain and class notes. The reading material consists of a total of 59 pages. Kindly let me know incase any doubt arises.RegardsAnkita
ADMINISTRATIVE LAW
Unit I- Evolution, Nature and Scope of Administrative Law1.1 Change in the concept of state-from laissez faire to Social Welfare state
1.
Administrative law is recognised as the most outstanding legal development of the 20
th
century.
2.
The 19
th
century was characterised by the welfare state wherein there was minimumgovernment control, free enterprise, contractual freedom, etc. Individualistic theoriesflourished in this period.3.The state played a negative role. It was primarily a police state which helped inmaintenance of law and order, protecting the nation from external aggression,dispensing justice to its citizens and collecting taxes for financing such activities.
4.
However, in the 20
th
century, the evils of this system were realised. Due to contractualfreedom and freedom of enterprise, there was unequal distribution of wealth. This led to
 
several socialist movements specially ones in which the grievances of labourers wasvoiced.5.Thus, a need was felt that the state shall be more than a police state. It shall help inalleviating the poor, regulating individual enterprise and most importantly bringingabout social justice. This led to the establishment of the social welfare state.6.This may be seen even in case of India. Before independence, India was essentially a police state as the British were more interested in furthering their own interests rather than working for the welfare of the people.7.However, the concept of social welfare was taken up immediately after independenceespecially after the adoption of the constitution.
8.
The preamble to the constitution states that India shall be a socialist, secular,democratic, republic and must provide justice, equality, rights, freedom, etc. to all.9.Other examples are that given in Part IV wherein it has been provided that there shall be no concentration of wealth towards the common detriment. There shall be equitabledistribution of wealth.10.Also, right to free and compulsory education for children upto 14 years is now afundamental right.11.There is also provision of equal pay for equal work under Part IV.12.Further, various social legislations such as the Factories Act, Minimum Wages Act, etc.have come into the picture.1.2 Increase of functions of modern state1.The growth of administrative law has primarily been due to the growth of administrative powers and functions which is again the result of increased statefunctions.
2.
This has also been also attributed to the fact that the international situation in the 20
th
century was such that at times quick decisions required to be taken by the executive intimes of emergency and thus administrative powers increased.3.The state today has taken up functions which were earlier carried out by the privatesector. It provides for transport, communication, energy, housing, banking, education,trade and commerce, etc.4.The functions of the state today may be put into 5 broad categories, namely- as a protector, provider, entrepreneur, economic controller and arbiter.5.A state consists of 3 organs- the legislature, executive and the judiciary. Out of thethree, the executive is the most powerful these days.6.Not only does the executive have powers of administration, it also has powers olegislation in the form of delegated legislation. Alongwith that it has the power to
 
conduct enquiries and investigations and give binding decisions as in case of administrative adjudication. Sometimes it may even exercise its discretion.7.However, some sort of check must be exercised on such powers and the same is donewith the help of administrative law. Administrative law helps in balancing public power and personal rights.8.If exercised properly, vast administrative powers could lead to a well functioningwelfare state and if not exercised properly it would lead to despotism.9.Administrative law provides several limitations on executive power in the form of ruleof law, separation of powers, principles of natural justice, judicial and parliamentarycontrols, administrative appeals, ombudsman, etc.1.3 Definition and Scope of Administrative Law
1.
According to KC Davis, ‘administrative law is the law concerning the powers and procedures of the administrative agencies including especially the law governing judicial review of administrative action.’ This explains the American approach to thesubject.2.As per Davis, an administrative agency is a governmental body other than a court or alegislature which affects the rights of private parties through adjudication and rulemaking.3.However, this definition cannot be accepted in totality as even though it emphasises onthe procedure followed by administrative authorities, it does not talk about certain other functions of the executive which are non-adjudicatory in nature and do not at the sametime fall within the scope of legislative or quasi-judicial function. Also, it lays too muchemphasis on judicial control and does not mention about other means of control such as parliamentary control, etc.
4.
The British approach has been provided in the definition given by AV Dicey. Hedefines administrative law as ‘denoting that portion of a nation’s legal system whichlays down the legal status and liabilities of state officials, the rights and liabilities of  private individuals in their dealings with public officials and specifies the procedure bywhich such rights and liabilities may be enforced.’5.Dicey’s definition may be criticised on the ground that it is a very restrictive definitionas it emphasises only on the aspect of control over public officials. Further, it only talksof state officials and ignores others like public corporations, etc. It excludes severalother functions and powers of public authorities.
6.
The modern British approach can be seen in the definition given by Sir Ivor Jenningswho states that ‘administrative law is the law of the administration. It determines theorganisation, powers and duties of the administrative authorities.’
7.
The above definition is the most widely accepted definition of administrative law.However, it has been criticised on the ground that it doesn’t differentiate betweenadministrative law and constitutional law. Also, it is too broad a definition. Further, it

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