UNIT - I

1. ADMINISTRATIVE LAW - MEANING:

Administrative law is the body of law that governs the activities of administrative agencies of
the government which comprise of rule making or legislation(when delegated to them by the
Legislature as and when the need be),adjudication(to pronounce decisions while giving
judgements on certain matters),implementation/enforcement of public policy.

SIGNIFICANCE:
It is very significant because if it did not exist then the very concept of having a democracy
and a government to work for the people would be self defeating because then there would be
no responsibility or accountability of the public officials to anybody and the administration
would run arbitrarily thus creating a huge monster that would eat up the very system. There
would be an upset in the balance in areas such as police law, international trade,
manufacturing, environmental, taxation, broadcasting, immigration, and transportation,etc.

REASONS FOR GROWTH:

1) Rise in complexity warranted handling of variable by the state authorities in order to
provide functioning in that area with necessary certainty and prescriptions.
2) Industrial revolution that resulted in the coming up of cities and new types of economic
transactions necessitated handling of affairs by govt in order to facilitate production,supply
and exchange of products and services.
3) Technological inventions and the increasing specialization has called for the increased
need of specialised handling of affairs by govt officials.
4) To allow necessary flexibility in the administrative system so that the challenges arising
due to social and economic factors could be addressed more adequately and efficiently.
5) To allow experimentation in order to ensure the application of best fit model in a given
circumstance
6) To allow participation of people in the administrative functioning to provide the
necessary\authority to the administrative officials so that they can address the challenges
arising due to extraordinary circumstances or emergency situations.

DICEY ON ADMINISTRATIVE LAW:

Dicey supported Rule Of Law where everybody in a State everybody shall be subjected to
some common law and no official irrespective of his status and authority shall be kept
outside the purview of Rule Of Law. Thus,he rejected the idea of Administrative Law that

was akin to Droit Administratif or that which was being practised in France and other
European countries where there are seperate rules for administrative officials as he believed
that such an arrangement would lead to a perpetual risk of excessive application of authority
with people having no window to their grievance redressal.
The reason for this is that while analysing the concept of Administrative Law Dicey was
always thinking of French administrative law/rights system/Le Droit Admanistratif that
existed under Napoleon's Bonaparte's rule.

Droit Adminstratif practised the system of:

a) One rule for regulating the behaviour of individuals of society and one rule for regulating
the members of State and administration.
b) One court for members and individuals of the society and their private aspects and another
court for members of State and administration which is the administrative Court/Tribunals
and the apex of this court will be the Council D'Etat(very small division of the country in to
administrative divisions that are smaller than even counties). These are distinct and not
overlapping neither are superior or inferior to each other. They are equals. In case they ever
overlap then the final decision will be taken by a special court constituted for this purpose.
This was done so that administrative and State officials have more autonomy in dealing with
situations and contingencies that arise in execution of administrative duties and which would
not be easily understood by the normal law and courts.
Thus,Dicey believed that there should not be such a separation where there is one law that
governs the administrative and political officials( Administrative Law) and one that governs
society and its people(civil and criminal law) and advocated the rule of law as prevalent in
UK where everybody was equal in the eyes of law and only one common law governed each
and every individual. But,he was heavily criticised for this later as he did not take into
account that even the Crown in UK was immune from civil and criminal
proceedings,thus,there was no rule of law or equality here. Also he is criticised for not taking
into account the future issues that would arrive in administration due to modernisation and
complexity like delegated legislation,etc. Delegated legislation was very much a part of UK
administrative setup as well as the system of administrative adjudication through tribunals
that was contrary to Dicey's rule of law stating only one law making body which is the
legislature and it being applied everywhere universally and interpreted by the judicial courts
as and when required for each and every one. So,therefore UK was practising administrative
law already.
Marx also criticised Dicey's rule of law concept by saying that it promotes inequality instead
of equality because if you treat underprivileged and poor equally with rich then there is going
to be a huge disparity that will only expand with time.

Modern day concept of rule of law has been given a very broad meaning by providing
opportunities to unequal people in order to equal themselves with the others like
reservation,etc. Law is created by the legislature or other legal institutions and is not to
differentiate but enable unequals to become equals and the last word on the law would be that
of the Independent judiciary.

ADMINISTRATIVE LAW AND RULE OF LAW ARE COMPLEMENTARY:

a) The modern concept of rule of law will be frustrated if not supported by a sound
administration,and only a separate administrative law can provide that sound administration.
b) Administration cannot function in a vaccum,it needs a sound administrative law for itself
to work properly. And all this together only will lead to the rule of law.
c) Thus rule of law and administrative law are both complementary and are inter dependant
to make each other work.
ADMINISTRATIVE ADJUDICATION(to act as judge in an issue and take a formal
decision binding on both parties) / ADMINISTRATIVE TRIBUNALS:
Administrative adjudication is an important component of administrative law along with
delegated legislation. It came into response to modern day changes. It is a settlement of
disputes related to administrative functioning by an administrative tribunal( an executive
body that may act as quasi Judicial body). Issues or disputes arising during administrative
functioning is done by this mechanism where the administrative machinery acts as an
adjudicator instead of going to the courts of law directly so these disputes are settled speedily
as the adjudicators are administrative officials and know the specific details and understand
the administrative process and thus give relevant and unbiased decisions. This helps in nonstagnation of policy work and thus benefits the people at large. It is flexible in its decisions as
it looks at the broader angle of public policy and its benefit whereas a court of law only looks
at rigid laws and nothing else.
But at times it can also be biased and deny independent justice to the aggrieved. According to
many theorists it is organised lawlessness and is contravening to the principle of natural
justice as the panel of adjudicators here are administrators and not independent judges, who
definitely happen to be one of the parties involved in the dispute. But,due to its benefits
mentioned above it still continues until a better alternative is found.

TYPES OF ADMINISTRATIVE COURTS/TRIBUNALS:

There are many:
1) Administrative tribunal for service rules
2) In cases involving matters of finance,the statutory acts empower offices to act as
tribunal - Revenue Board of State,District Magistrate relating to rent control and
revenue cases.
3) Election commission acts as the tribunal in violation of election rules.
4) Land acquisition act empowers the district magistrate to acquire land and he acts as
tribunal in case of grievance regarding land acquisition.
5) In transportation a number of officials act as tribunals from the transport dept.
6) The regulatory commissions and agencies have power to hear cases and act as
tribunals.

THREE TYPES OF TRIBUNALS SETUP UNDER ADMINISTRATIVE TRIBUNAL

ACT 1985:
1) CENTRAL ADMINISTRATIVE TRIBUNAL (CAT) : The Central Administrative
Tribunal has been established for adjudication of disputes with respect to recruitment and
conditions of service of persons appointed to public services and posts in connection with the
affairs of the Union or other local authorities within the territory of India or under the control
of Government of India and for matters connected therewith or incidental thereto. This was
done in pursuance of the amendment of Constitution of India by Articles 323A. Includes
service matters involving central services,state matters and civilian matters(excluding
military) and civil matters.

2) STATE ADMINISTRATIVE TRIBUNAL (SAT): Administrative tribunal for state civil

services matters

3) JOINT ADMINISTRATIVE TRIBUNAL: Administrative tribunal setup for two or

more states.
All these tribunals are setup and appointments are made by the president.
The chairman is appointed by the president on advice of the Chief Justice of India and has to

be a judge of a High Court or should have acted as a two years vice-chairman of the central
administrative tribunal.
The vice chairman of the CAT should be a secretary of govt of India or any other post with
equivalent pay for two years or otherwise additional secretary or post with equivalent pay for
a period of not less than 5 years.
For members of the CAT the person should be additional secretary of govt of India or
equivalent pay for 2 years or joint secretary or with an equivalent pay post for a period not
less than 5 years.
The members can only be removed on grounds of proven misbehaviour by the president.
For the chairman and vice chairman are given secure tenure of 5 years or retirement on 65
years whichever is earlier.
For administrative members 5 years or retirement upon 65 years whichever is earlier.
For the judicial member of the CAT he should be 1st class magistrate.
An aggrieved person can approach high court appealing against the decision of CAT.
RISKS IN ADMINISTRATIVE TRIBUNAL SETUP:
1) They lack in legal expertise.
2) It is a kind of Martial Law where law makers here implement it also and the legal
procedures are ignored which is violative of the principle of Natural Justice. Here the
administration is both the litigant and judge in its own case as mostly the cases are against or
relating to the very administrators who are sitting as judges there.
3) Lack of autonomy for lower tribunal officers.
4) Huge delay happens in this system too.
SAFEGUARDS AGAINST NEGATIVES OF ADMINISTRATIVE TRIBUNALS:
1) More legal expertise and officers should be brought in.
2) Principle of natural justice should be followed and the judge who is party to the dispute
should be excluded from the hearing of the case.
3) More autonomy should be given.
4) Members of civil society should also be included.
5) People with high integrity should only be appointed.
6) Political interference should be minimized in the appointment procedure of tribunals and
transparent procedures and rules should be established and followed.
7) Rule of tested evidence should be followed.
8) Decision making should be based on merit of the cases brought forward.
9) The parties to the dispute shall be given to present their cases and no judgement shall be
delivered without giving full chance to defend one's cause.
10) Appeals in courts of law should be permissible.

1.1 From a Laissez Faire to a Social Welfare State; State as regulator of privateinterest;
State as provider of services; Other functions of Modern State; Relief; Welfare
Administrative law meaning and development
According to the definition of Sir Ivon Jennings Administrative Law can be defined as a law
relating to administration. It determines the organization, powers and duties of administrative
authorities.
With the advent of time the definition and meaning of administrative law has gone through a
great deal of transition .From early 19th century to todays era the functions of the administration
has increased manifold leading to a transformation in the meaning of the term administrative
Law in accordance with the changes in the society.

Evolution
The term administrative law is not a newly coined term. The traces of administrative law can
be seen in almost every legalsystem of the world. In India, from Mauryas to Guptas, Guptas to
Mughals, from Mughals to the East India Company : in all the mentioned periods administrative
law was one of the most developing branches of law. Administrative Law can be said to be the
most remarkable development of the 20th Century. The development of administrative law goes
hand-in-hand with the development of the society. Administrative law can more rightly be said to
be the sociology of law and not the philosophy of law.
The three main stages led to the expansion of the meaning of the term Administrative law1. Laissez Faire 2. Dogma of Collectivism 3. Social-Welfare State
1. Laissez Faire : In the early 20th century the political gospel of laissez-faire was preached.
The principles on which the theory of laissez-faire works are as follows- Minimum control of
government Free enterprise Law and order not counted as subjects of state Power said to be
concentrated in the hands of the individual The theory of Laissez faire met with the following
pitfalls- Concentration of powers Which led to human misery Widening the inadvertent gap
between the poor and the rich
Administrative law The consequence of giving the powers in the hands of the individuals and
the minimum government control proved catastrophic .By this the vital power was concentrated
in the hands of the rich people and the balance of economy got terribily shaken which only paved
way to a debacle that is the increasing economic disparity where the rich became richer and the
poor became poorer.

2. Dogma Of Collectivism: After the miserable consequences that the police state suffered
because of the terrible failure of Laissez-Faire, the principle of collectivism evolved which said
that the state and individuals shall work in proper synchronization. The state had proper control
over the actions of the individuals and the state also stood up to take the responsibility for the
individuals life .liberty and property.
3. Social Welfare State: The Dogma of collectivism gave birth to the being of a social-welfare
state. India is a socialistic republic as the Preamble of the Constitution articulates. The social
welfare state thrives on the principle of providing justice of all kinds be it social, economic or
political and all laws and actions of the government to be taken keeping in mind the interests of
the citizens. The Constitution envisions to have an egalitarian society.
Conclusion: From Laissez faire to a social welfare state the meaning and definition of
administrative law has developed tremendously. After turning into a social-welfare state the
function ofstate shifted from setting the parameters or for deciding the administrative functions
to following the principles of natural justice and reasonableness. Administrative Law today is an
all-pervading feature existing in almost all parts of the society and its functions.
According to I.P. Massey Administrative Law now includes- 1. The powers and functions of the
administrative and quasi-administrative agencies. 2. The procedures these powers to be
exercised, prescribed and reviewed. 3. The review by individuals and how the aggrieved persons
whose powers have been abused and can seek a remedy. In a nutshell, Administrative Law is all
about the organization of powers and individual liberty, the procedures how individuals can
exercise there powers and the remedies for the individuals if there power is abused by
administrative authorities.
1.2 Evolution of Administration as the fourth branch of government; Necessity for
delegation of powers on administration
Administrative agencies
The administrative agencies that are funded from public money may exercise powers granted by
Congress. Without appropriate controls and oversight this practice may result in abureaucracy (in
the original literal sense). Some critics have argued that a central paradox at the heart of the
American political system is democracy's reliance on the what the critics view as undemocratic
bureaucratic institutions that characterize the administrative agencies of government.[4] An
argument made for calling administrative agencies a "fourth branch" of government is the fact
that such agencies typically exercise all three constitutionally divided powers within a single
bureaucratic body: That is, agencies legislate (a power vested solely in the legislature by the
Constitution)[5] through delegated rulemaking authority; investigate, execute, and enforce such
rules (via the executive power these agencies are typically organized under); and apply, interpret,

and enforce compliance with such rules (a power separately vested in the judicial branch).
[6]

Additionally, non-executive, or "independent" administrative agencies are often called a fourth

branch of government, as they create rules with the effect of law, yet may be comprised at least
partially of private, non-governmental actors.

Delegation of Power and its Limitations

Introduction:
According to the traditional theory, the function of the executive is to administer the law enacted
by the legislature, and in the ideal state the legislative powers must be exercised exclusively by
the legislature who are directly responsible to the electorate. Apart from the pure administrative
function executive also performs legislative and the judicial function also. In England
theoretically it is only parliament, which can make laws. Even in the United States of America
where the doctrine of the delegated legislation has not been accepted in principal, in practice the
legislature has entrusted legislative powers to the executive. Administrative legislation met with
a rapid growth after World War II and in India during 1973 to 1977.
Delegation of powers meaning:
Delegation of powers means those powers, which are given by the higher authorities to the lower
authorities to make certain laws, i.e., powers given by the legislature to administration to enact
laws to perform administration functions. The law legislate by the administration with the
powers given by the legislature is called delegated legislation. Or we can say that when an
instrument of a legislative nature is made by an authority in exercise of power delegated or
conferred by the legislature is called subordinate legislation or delegated legislation.
History of Delegation of Powers:
a. Pre constitutional Position:
The history of delegation of powers can be traced from the charter stage of 1833 when the East
India Company was regaining political influence in India. The of 1833 vested the legislative
powers exclusively in Governor General in council, which was an executive body. He was
empowered to make laws and regulations for repealing, amending or altering any laws or
regulations, which were in force for all persons irrespective of their nationality. In 1935 the
Government of India Ac, 1935 was passed which contained an intensive scheme of delegation.
The report of the committee on ministers powers was submitted and approved which fully
established the case for delegation of powers and delegation of legislation was regarded as
inevitable in India.

b. Present Position:
Though, our constitution was based on the principal of separation of powers, a complete
separation of powers was not possible hence it maintained the sanctity of the doctrine in the
modern sense. The Indian Constitution does not prohibit the delegation of powers. On the other
hand there are several provisions where the executive has been granted the legislative powers.
For example the legislative powers of the president under the Indian Constitution are
conspicuous. Under Article 123 the president has the power to promulgate the ordinances and
unrestricted power to frame regulations for peace progress and good government of the union
territory under Article 240. The Supreme Court of India has also upheld the delegation of
legislative powers by the legislative to the legislative to the executive in the case of Raj Narayan

Growth of Delegation of Power and its Reasons:

Many factors are responsible for the rapid growth of delegated legislation in every modern
democratic state. The traditional theory of laissez faire has been given up by every state and the
old police state has now become a welfare state. Because of this radical change in the
philosophy as to role to be played by the state, their functions have increase. Consequently,
delegated legislation has become essential and inevitable.
Some of the reasons of the growth of the Delegation of Powers are as follows:
1. Pressure upon Parliamentary Time: As a result of the expanding horizons of the state
activity, the bulk of legislation is so great that it is not possible for the legislation to devote
sufficient time to discuss all the matters in detail. Hence there is need for a delegation of power.
2. Technicality: Sometimes, the subject matter on which legislation is required is so technical
in nature that the legislator, being himself a common man, cannot be expected to appreciate and
legislate on the same, and the assistance of experts may be required. Hence this lead to the
growth of delegation of power.
3. Flexibility: At the time of passing any legislative enactment, it is impossible to foresee all the
contingencies, and some provision is required to be made for these unforeseen situations
demanding exigent action. Hence there is a need for flexibility which leads to the growth of
delegation of power.
4. Experiment: The practice of delegated legislation enables the executive to experiment. The
method permits rapid utilization of experience and implementation of necessary changes.
5. Emergency: In the time of emergency, quick action is required to be taken. The legislative
process is not equipped to provide for urgent solution to meet the situation. Hence there is need
for delegation of power.

Delegation of Powers under the Indian Constitution:

The Legislature is quite competent to delegate to other authorities.
To frame the rules to carry out the law made by it. In D. S. Gerewal v. The State of Punjab, K.N.
Wanchoo, the then justice of the Honble Supreme Court dealt in detail the powers of delegated
legislation under the Article 312 of Indian Constitution. He observed:there is nothing in the
words of Article 312 which takes away the usual power of delegation, which ordinarily resides in
the legislature. The words Parliament may by law provide in Article 312 should not be read to
mean that there is no scope for delegation in law made under Article 312.
In the England, the parliament being supreme can delegated any amount of powers because ther
is no restriction. On the other hand in America, like India, the Congress does nit possess
uncontrolled and unlimited powers of delegation. In Panama Refining Co. v. Rayans, the
supreme court of the United States had held that the Congress can delegate legislative powers to
the Executive subject to the condition that it lays down the policies and establishes standards
while leaving to the administrative authorities the making of subordinate rules within the
prescribed limits.
Control Mechanism of Delegated Legislation in India:
A. Parliamentry Control
Every delegate is subject to the authority and control of the principal and the exercise of
delegated power can always be directed, corrected or cancelled by the principal. Hence
parliament control over delegated legislation should be living continuity as a constitutional
necessity. The fact is that due to the broad delegation of legislative powers and the generalized
standard control also being broad, the judicial control has shrunk, raising the desirability and the
necessity of parliamentary control. In the USA the control of congress over delegated legislation
is highly limited because neither is the technique of laying extensively used nor is there any
congressional committee to scrutinize it. In England due the concept of parliamentary
sovereignty the control exercised over delegated legislation is very broad and effective. In India
the parliamentary control of delegated legislation is implicit as a normal constitutional function
because the executive is responsible to the parliament.
B. Procedural Control
Parliamentry control over administrative rule is admittedly weak because the legislaters are
sometimes innocent of legalskills. A constant search therefore is on for an alternative mechanism
which besides providing an effective vigil over administrative rule making can guarantee
effective people participation for netter social communication, acceptance and effectively of the
rules. Procedural control mechanism has the potential to met the above noted requirements for

allowing specific audit of rules by those for whose consumption they are made. Procedural
control mechanism operates in three components:
1. Drafting 2. Antenatal publicity 3. Consultation 4. Postnatal publicity
In India the judicial review of administrative rule making is subject to the normal rules
governing the review of administration action. This judicial review of administrative rule making
cannot be foreclosed in any manner by the enabling act. In State of Kerala v. K.M.C. Abdullah &
Co. the S.C. held that the validity ofsuch a phrase as shall not be called in question in any court
in the enabling act. In the same manner in G.O.C. v. Subash Chandra Yadav the S.C. held that an
act providing that rules made there under on publication in official gazette would be as if
enacted in the act. Cannot take away judicial review. Grounds of invalidity may arise on the
following counts:
1. That the Enabling Act is Ultra-vires the Constitution
2. The Administration Legislation is ultra-vires the Constitution
3. That the Administrative Legislation is ultra-vires the Enabling Act
Limitations to Delegated Legislation:
It is now settled by majority judgments in Delhi Laws Act, 1912, Re, that there is a limit beyond
which delegation may not go. The limit is that essential powers of legislation cannot be
delegated. The essential legislative power consists of the determination or choice of the
legislative policy and of formally enacting that policy into a binding rule of conduct. The
legislature, therefore, may not delegate its function of laying down legislative policy to an
outside authority in respect of a measure and its formulation as a rule of conduct. So long as a
policy is laid down and a standard or limit established by statue no unconstitutional delegation of
legislative power is involved in leaving to the executive the making of subordinate rules within
the prescribed limits and the determination of facts to which the legislation is to apply.
The next question arises as to what is the constitutional basis on which prohibition of delegation
of law making powers rests. There is no specific provision in the constitution prohibiting the
delegation. The Constitution of U.S.A embodies the doctrine of separation of powers, which
prohibits the executive being given law making powers.
In Edward Mills Co. v. State of Ajmer it was explained where a legislature is given plenary
powers to legislate on a particular subject there must also be an implied power to make laws
incidental to the exercise on such power. It exercise of a power is included in the grant of power.
In Devi Das Gopal Krishnan v. State of Punjab, Subba Rao, C.J. provided another justification
for delegated legislation that the Constitution confers a power and imposes a duty on the
legislature to make laws, but in view of the multifarious activities of a welfare State, it cannot

presumably work out all the details to suit varying aspects of a complex situation. The legislature
must necessarily delegate the working out of details to the executive or any other agency
1.3.1

Major U.S. Federal Regulatory Agencies

Consumer Product Safety Commission (CPSC): enforces federal safety standards

Environmental Protection Agency (EPA): establishes and enforces pollution standards

Equal Employment Opportunity Commission (EEOC): administers and enforces Title

VIII or the Civil Rights Act of 1964 (fair employment)

Federal Aviation Administration (FAA): regulates and promotes air transportation safety,
including airports and pilot licensing

Federal Communications Commission (FCC): regulates interstate and foreign

communication by radio, telephone, telegraph, and television

Federal Deposit Insurance Corporation (FDIC): insures bank deposits, approves

mergers, and audits banking practices

Federal Reserve System (the FED): regulates banking; manages the money supply

Federal Trade Commission (FTC): ensures free and fair competition and protects
consumers from unfair or deceptive practices

Food and Drug Administration (FDA): administers federal food purity laws, drug testing
and safety, and cosmetics

Interstate Commerce Commission (ICC): enforces federal laws concerning

transportation that crosses state lines

National Labor Relations Board (NLRB): prevents or corrects unfair labor practices by
either employers or unions

Nuclear Regulatory Commission (NRC): licenses and regulates non-military nuclear

facilities

Occupational Safety and Health Administration (OSHA): develops and enforces federal
standards and regulations ensuring working conditions

Securities and Exchange Commission (SEC): administers federal laws concerning the
buying and selling of securities