Evolution, Nature and Scope of Administrative Law

1. Meaning and Definition

Meaning
Over the centuries the role of a Government all over the world has undergone a sea change. The emergence of the social welfare concept led to State activism. There has occurred a phenomenal increase in the area of State operation and pervades every aspect of human life. The law may be divided into two heads (1) Private Law; and (2) Public Law. Administrative Law is one of the most important and significant branches of the public law. Administrative law is basically a law relating to administrative operation of Government. It deals with the powers and duties of administrative authorities, the procedure followed by them in exercising the power and discharging the duties and the remedies available to an aggrieved person when his rights are abused by administrative authorities.

Definition
It is difficult to evolve a scientifically precise and satisfactory definition of administrative .The attempt has being made by jurist to define administrative law so as demarcate articulately its nature, scope and content. Definition of Sir Ivor Jennings The most widely accepted and the simplest definition of the term is the one given by Sir Ivor Jennings, who defined administrative law as follows: Administrative law is the law relating to administration. It determines the organization, powers and duties of administrative authorities. However the definition is criticized widely for its three defects: 1. The definition is too wide and brings within its fold topics which falls outside the scope of the subject. 2. The definition does not distinguish administrative law from constitutional law. 3. The definition does not make any mention of remedies available to an aggrieved person. Definition of Davis According to Davis,-

Administrative law is the law concerning the powers and procedures of administrative agencies, including especially the law governing judicial review of administrative action The merit of the definition lies in the fact that necessary emphasis is given on the procedure which is to be followed by administrative agencies. Criticism: 1. It falls to cover the area substantive law made by such administrative agencies. 2. The definition does not include the several non-adjudicative functions of such agencies 3. It concentration is laid on the judicial control on administrative actions and falls to mention other forms of control for instance parliamentary control of delegated legislation. Wades definition According to Wade, administrative law is the law relating to the control of governmental power. The definition in spite of being short and simple cannot be accepted as it does not lay emphasis on the powers and duties of administrative authorities. It does not cover the procedure to be followed by such authorities. The definition restricts the scope of administrative law to governmental power when in fact, this factor is only one of the many dealt with by the subject.

2. Nature and Scope of Administrative Law

Object
Administrative Law deals mainly with the power and discretionary authority available and enjoyed by administrative bodies, the manner in which such discretion and power is to be exercised and the remedies available to an aggrieved person when the vested power or discretion is abused. According to Schwartz, the subject can be divided into three parts: 1. The power vested in administrative agencies 2. The requirement imposed by law upon the exercise of such powers; 3. The remedies available against unlawful administrative action Thus, it can be safely said that the main objective of administrative law is to focus on the ways in which an administrative agency is kept within its limit so that the power or discretion vested in them is not abused or treated arbitrarily.

 Reasons for the growth of Administrative Law

The following factors are responsible for the growth and development of administrative law: 1. The role played by a state has undergone a radical change. The negative policy of law and order and laissez faire has changed. The state has not confined its scope to a traditional and minimum function of defence and administration of justice but has gradually progressed into undertaking a positive policy hence paving its way into becoming a welfare state. 2. The present judicial system is inadequate and expensive with an inherent problem of delay in the disposal of cases. The judicial process is slow, costly, inept, complex and formalistic and way too overburdened to except speedy disposal of important matters e.g.: dispute between employer and employees, strikes etc. These burning issues could not be settled by ordinary court of law by interpreting statute but it required special consideration. Hence, industrial tribunals and labour courts were established which possessed the required expertise to handle the various cases which came before the forum. 3. The legislative process is lengthy and slow hence necessities arouse to delegate some of the function to the administrative authorities. 4. The legislation is rigid in character leaving no room for experimentation while an administrative process is flexible leaving room for alteration and modification. 5. Administrative authorities can avoid technicalities. Unlike tradition judiciary which is technical and rigid, an administrative tribunal is not bound by rules of evidence and procedure and hence they can take a practical view in deciding a complex matter. 6. Administrative authorities can take preventive measure. It can also take effective steps for the enforcement of such preventive measures.

3. Constitutional Law and Administrative Law

Relation/Distinction between Constitutional Law and Administrative Law
Till recently, Administrative law was regarded as the parcel of Constitutional law and found itself in books of constitutional law. Today, there is an increased realization that even though both the subjects are inter-connected and deals with the function of the government nevertheless there is a distinction between the two. Hood Philips sets out the distinction between the two in the following words: Constitutional law is concerned with the organization and functions of the government at rest, whereas administrative law is concerned with the organization and functions in motion.

The following are some of the differences between Administrative Law and Constitutional Law 1. Constitutional law deals with the structure and the rules which regulate the function of various agencies of a government while Administrative law makes a detail study of such functions. 2. Constitutional law deals with the organization and function of the government while administrative law puts these organization and function into motion. 3. Constitutional law deals with the power function of the three organ of a government as laid down in the Constitution of a country and Administrative law deals only with the power and function of the administrative agencies. 4. Constitutional Law deals with the constitutional status of civil servants, ministers and public servants and officials while administrative law deals with the organization and working of various departments of a government.

4. Sources of Administrative Law

The following are the main sources of Administrative law: 1. Judicial decisions 2. Statutes 3. The Constitution 4. Rules, regulations, etc 5. Administrative practice 1. Judicial decisions Administrative law of India is uncodified in India. It is mostly unwritten, uncodified and mostly Judge-made. Administrative Law has had a gradual growth in, taking one step at a time whenever new situation as put before the court for adjudication. Today the state is a welfare state hence it is called upon to perform not only executive functions, but also quasi- judicial legislative and quasi-judicial functions. The administrative authorities have thus become the fourth branch of the government. The Judiciary has presented a pragmatic solution in every unique and new circumstance making case laws an important source of Administrative law. However it has also led to uncertainty and speculation as the various administrative tribunals set up in India does not follow uniform procedure hence resulting in confusion and conflicting decisions. 2. Statutes

In India unlike Britain and USA, there is no special statute which can be especially mentioned as a source of Administrative law. In Britain statutes like Rules Publication Act, 1893, the Statutory Instruments Act, 1946, the Tribunal & Enquiries Act, 1958, and so on. In USA, the Administrative Procedure Act, 1946 and the Federal Torts Claims Act, 1946 have made a valuable contribution in the field of Administrative law. 3. The Constitution The Constitution of India clearly lays down the administrative and legislative powers of the Union and the States. It empowers the Judiciary to ensure that the legislative and the executive action is not contrary to the constitutional provision. An article 32, 226 and 227 gives the judiciary ample power to ensure that the fundamental rights guaranteed by the constitution are not violated by an Act passed by the legislature or an administrative order. Additionally the constitution extensively laid down provision for civil services, the Union Public service commission, the state Public Service Commissions and has provided safeguard for removal of government servants. 4. Rules, regulations, etc. Apart from the legislative bodies the rules and regulations, Departmental Circulars, Manuals, Government Orders, Schemes made by government departments can be regarded as a useful source of administrative law. 5. Administrative practice The practices followed by various administrative authorities and agencies are also regarded as an important source of Administrative law.

5. Origin, Development and Growth of Administrative Law

Origin and development in France (Droit Administratif)

Droit Administratif is the name given to the Administrative Law prevailing in France. French administrative law or droit administrative is a branch of law which deals with the powers and duties of various administrative agencies and official. According to Dicey, droit administrative is that portion of French Law which determines 1) position and liabilities of State officials, 2) rights and liabilities of private individuals in their dealings with officials as representative of their dealings with officials as representative of the State, and 3) procedure by which these rights and duties are enforced. According to him, this system is based on two principles, namely, 1) an individual in his dealings with the State does

not, according to the French legal system, stand on the same footing as that on which he stands in dealings with his neighbor, and 2) the government and its officials are independent of and free from the jurisdiction of the ordinary civil courts. France has developed a system of administrative tribunals distinct from the ordinary courts which have no jurisdiction on the Administration. The most significant aspect of Droit Admistratif is that the ordinary courts exercise no control over the Admisnistration which is under the supervision of Administrative tribunals. Though the administrative tribunals are independent bodies it is subjected to the supervision of Conseil d Estat which acts as a court of appeal of these tribunals.The Counseil d Estat has been characterized as the bulwark of civil liberties and also the guardian of administrative tribunals, these are independent bodies. This system has been highly regarded for providing an effective protection to individual rights against the despotism of public administration. However Dicey did not favour droit administratif. According to him the object of two sets of law was to protect government official from the consequence of their act. He insisted that there is no rule of law in France hence argued that England had more effective control over administrative action in England than in France. However this has been criticized as it can be inferred beyond doubts that Consil d Estat afforded much more protection to the aggrieved parties in France than regular courts afforded to such persons in England. The Indian Administrative system though common law in nature has incorporated some features of Droit Administratif. The evidence of this influence can be seen in increased decision making process. Furthermore in the recent judgments two doctrines of Droit Administratif , legitimate expectation and proportionality has found its place.

Origin and Development in England

There was no advent of administrative law as a separate branch of law prior to 20th century. In 1885, Dicey made his now famous observation that In England, we know nothing of administrative law and we wish to know nothing about it. But while making such pronouncement he ignored the existence of administrative discretion and administrative justice which was in existence even during his days. However Maitland who was aware of the true scenario observed in 1887, if you take up a modern volume of the reports of the Queens Bench Division, you will find that about half of the cases reported have to do with rules of administrative law In 1914, Dicey changed his view and admitted that due to increase in the duties and authority of English officials in the last 30 years some elements of droit administrative has crept in the English legal system. Further after the decision on House of Lords in Board of Education v.

Rice1 and Local Government Board v. Arlidge2, Dicey in his article The Development of Administrative Law in England has observed that legislation had conferred a considerable amount of judicial authority on the administration which was a considerable step towards the introduction of administrative law in England.. This restricted interpretation of scope and ambit of administrative law has been criticized by Freidmann. According to him Dicey considered administrative law in exclusion to the maintenance of rule of law. Hence in studying rule of law he excluded administrative law and special system of administrative law. In 1929, the Committee on Ministers Powers headed by Lord Donoughmore was appointed by the British Government to look into the problem of delegated legislation and judicial and quasijudicial powers exercised by the officers appointed by the Ministers and to suggest and effective control and safeguard for ensuring supremancy of Rule of Law. In 1932 the Donoughmore Committee report was submitted with its suggested safeguard like better publication and subordinate legistation . This repot was adopted by the parliament with the passage of the Statutory Instruments Act, 1946 In 1947, the Crown Proceedings Act was passed by the British Parliament which made the government liable to pay damages in case of tortuous and contractual liability of the Crown. In 1958, the Tribuanl and Inquiry Act was passed for the purpose of better control and supervision of administrative decisions, and the decisions of the administrative authorities and tribunals were made subject to appeal and supervisory jurisdiction of the regular courts of law. In the 20th century a State is working at being a Welfare State with its increased legislation in social and economic aspect of a state. This has increased delegated legislation and also tribunalisation in the state.

Origin and Development in U.S.A

In USA administrative law was in existence from the 18th century with the passing of the first federal administrative law which was embodied in the statute 1798, but it soon grew rapidly with the passing of the Interstate Committee Act, 1877. In the next few years several books were published which made the American Bar Association to take interest in the Administrative Law. President Elihu Root in his address to the American Bar Association warned the country by suggesting the advent of administrative law as a special field in law. Unfortunately this wise counsel was ignored and the powers of the administrative body grew day by day and eventually become the fourth branch of the Government. However after the New Deal a need was seen to take effective steps in this field. A special committee was appointed in 1933 which suggested greater judicial control over administrative
1 2

1911 AC 179 : 80 LJKB 796 1915 AC 120 : (1914-1915) ALL ER Rep 1(HL)

agencies. After the reports of Roscoe Pound Committee of 1938 and the Attorney Generals Committee in 1939, the Administrative Procedure Act, 1946 was passed which contained many provisions relating to the judicial control over administrative actions

Position in India
Administrative Law in India has been in existence since ancient time. During the Mauryan and the Gupta period there was a well organized and centralized system of administration in the country. The rule of dharma was observed by the kings and administration and nobody could claim an exception to it, who themselves followed the basic principle of natural justice and fair play. Administrative law grew rapidly with the establishment of East India Company. Many statutes and legislation regulating public safety, health, morality, transport and labour relations was passed as for instance, the State Carriage Act in 1861, the Drainage Act 1873 etc. During the two World War there was a surge in executive power and administrative functions. Act like Defence of India Act, 1939 and the Rules made there under conferred wide and discretionary power to the executive. In addition to this administrative instructions began to be issued in the forms of orders and ordinances. The concept of Welfare State is interwoven in the Indian Constitution. To secure this object several acts has been passed by the Parliament namely Industrial (Development and Regulation) Act, 1951; the Requisitioning and Acquisition of Immovable Property act, 1952; the Essential Commodities Act, 1955 etc. The Judiciary while interpreting the Constitution and the other Acts has taken into consideration the object and ideals of social welfare. In Joseph Kuruvilla Vellukunnel v. R.B.I3, the Supreme Court held that under the Banking Companies Act, 1949 the Reserve Bank was the Sole judge to decide whether the affairs of a banking companies were conducted in a manner prejudicial to the depositors interest and the court had no option but to pass an order of winding up as prayed by the Reserve Bank. In State of Gujrat v. M.I. Haider Bux Imam Razvi4 the Supreme Court held that under the provisions of the Land Acquisition Act, 1894, ordinarily, the government is the best authority to decide whether a particular purpose is a public purpose and whether the land can be acquired for that purpose or not.

3 4

AIR 1962 SC 1371 (1976) 3 SCC 536 : AIR 1977 SC 594

In Javid Rassol Bhat v. State of J&K5 the Apex court observed that irrevelant question can be asked in the interview of a member of the Selection Committee to explore the candidates capacity to detect irrelevancies. The several acts and trend of Supreme Court judgment shows that administrative law has increased by leaps and bounds. Hence there is a strict need of judicial review and enforcement of the rule of law over these powers.

(2007) 3 SCC 184