You are on page 1of 14

Administrative Law is the law related with the administrative functions of the Government and its Departments.

The Law involves the study of the following broad topics: Check abuse or detournment of administrative power Ensuring citizens an impartial determination of their disputes by officials Protect citizens from unauthorized encroachment on their rights and interests Make those who exercise public power be accountable to people
Contents
[hide]

1 History, Evolution, Nature and Trends in Administrative Law 2 Tribunals & Tribunalization 3 Bureaucracy 4 Maladministration 5 Legislative Powers of Administration 6 Administrative Adjudicatory Process 7 Principles of Natural Justice 8 Judicial Control of Administrative Action 9 Administrative discretion and its judicial control 10 Liability for Wrongs 11 Corporations and Public Undertakings 12 Powers of Enquiry and Investigation of the Administration 13 Related Acts 14 Related Rules 15 Related Cases / Recent Cases / Case Law 16 Related Topics

History, Evolution, Nature and Trends in Administrative Law


Evolution of Administrative Law Doctrine of Separation of Powers (des pouvoirs) Rule of Law and Administrative Law Scope of Administrative Law Source of Administrative Law Transformation from a Laissez Faire State to a Social Welfare State

State as a regulator of primary interest State as a provider of services Other functions of modern state - relief, welfare., Prof. Wade define Administrative Law as the 'law related to the control of governmental power'. Administrative Law is mostly judge-made law and is not contained in any single legislative enactments.

Administration as the fourth branch of Government Necessity for delegation of powers on administration Evolution of agencies and procedures for settlement of dispute between individual and administration Regulatory agencies in the United States Relationship between Constitutional Law and Administrative Law Emerging trends in Administrative Law

Tribunals & Tribunalization


Tribunal - a special court set up by Government to deal with specific type of cases Advantages of Tribunals - Tribunals have certain unique advantages of the traditional Court system. Conseild' state of France Droit Administratif Tribunalization in England: History of Tribunals in England Tribunalization in India

Bureaucracy
Bureaucracy with special focus on the India Bureaucratic system Organisation of civil services Powers and functions Disciplinary proceedings Prosecutions under Prevention of Corruption Act

Maladministration
Prevention of Corruption Act, 1988 Ombudsman Ombudsman in England Ombudsman in USA Ombudsman in India Institution of Ombudsman in the States

Right to Know and Right to Information Discretion to Disobey Parliamentary Commissioner Lokpal Lokayukta Central Vigilance Commission (CVC) Congressional and Parliamentary Committees.

Legislative Powers of Administration


Concept of Delegated legislation / Subsidiary legislation Delegation of legislative power Constitutionality of delegated legislation-powers of exclusion and inclusion and power to modify statute Requirements for the validity of delegated legislation Consultation of affected interests and public participation decision-making Publication of delegated legislation Administrative directions, circulars and policy statements Legislative control of delegated legislation Laying procedures and their efficacy Committees on delegated legislation - their constitution function and effectiveness Hearings before legislative committees Judicial control of delegated legislation Doctrine of ultra vires Sub-delegation of legislative powers

Administrative Adjudicatory Process


Administrative tribunals and other adjudicating authorities their ad-hoc character Central Board of Customs and Excise MRTP Commission ESI Courts Service Tribunals Jurisdiction of administrative tribunal Distinction between Quasi-Judicial Function and administrative functions Legal Representation in Administrative proceedings

Principles of Natural Justice


Principles of Natural Justice Principles of Natural Justice and India Right to hearing Essentials of hearing process Rule against bias - No one can be a judge in his own cause Oral hearing Right to counsel Institutional Decision Exception to the rule of Natural Justice Violation of principles of natural justice Administrative Appeals Council of Tribunals and Inquiries in England U.S. Regulatory Agencies Administrative Procedures Act 1946 Exceptions to the rules of natural justice Violation of principles of natural justice

Judicial Control of Administrative Action


Judicial Control of Administrative Action is the judicial review of the administration by the courts using principles developed by the courts themselves. The general trend is such that judicial review of administrative actions is widened and immunity restricting it is reduced Courts are empowered to take up action for the enforcement of Fundamental Rights Courts as final authority of determine legality of administrative action-problems and perspectives Exhaustion of administrative remedies Laches or unreasonable delay Res judicata says that the matter cannot be raised again, either in the same court or in a different court (of the same level). Grounds of Judicial Review of Administrative Action Jurisdictional error / ultra vires Abuse and non exercise of jurisdiction Error apparent on the face of the record

Violation of principles of natural justice Violation of public policy Primary jurisdiction Doctrine of legitimate expectation Doctrine of public accountability Doctrine of proportionality Methods of Judicial Review Statutory appeals Public Interest Litigation Writs Mandamus Certiorari Prohibition Quo Warranto Habeas Corpus

Declaratory judgments and injunctions Specific performance and civil suits for compensation Fact-finding commissions Finality Clause - clauses that put acts outside judicial review

Administrative discretion and its judicial control


Administrative discretion Administrative Discretion and Fundamental Rights Abuse of discretion in Administrative Law Administrative discretion and rule of law Male fide exercise of discretion Constitutional imperatives and use of discretionary authority Irrelevant considerations Non-exercise of discretionary power Discretion to prosecute or to withdraw prosecution Limiting Judicial control of Administrative discretion Confining and structuring discretion General discretion

Technical discretion. Administrative discrimination

Liability for Wrongs


Tortuous liability sovereign and non-sovereign functions Crown Proceedings Act of U.K. Torts Claims Act of U.S. Statutory immunity Contractual liability of government Government privilege in legal proceedings-State Secrets, public interest, etc., Right to information and open government Estoppel and Waiver

Corporations and Public Undertakings


State Monopoly Remedies against arbitrary action Liability of public and private corporations of Departmental undertakings Legal Remedies Accountability - Committee on Public Undertakings, Estimates Committee, etc. Control of Statutory Corporations Parliamentary Control Governmental Control Judicial Control Public Control

Government Companies

Powers of Enquiry and Investigation of the Administration


Powers of the Government under Commissions of Inquiry Act, 1952 Right to Information Act, 2005

Related Acts
Judicial Officers Protection Act, 1850

Related Rules
Andhra Pradesh Administrative Tribunal Rules of Practice, 1995

Administrative Law evolved as a bye-product of the public law because of the growing socioeconomic functions and increasing power of the Government. This branch of law has seen immense growth during the 20th century because of the drastic changes in the role and functions of the State. The State changed from being a police state exercising sovereign functions into a welfare state seeking security and welfare of the common public.

Doctrine of Separation of Powers or des pouvoirs means that one person or body of persons should not exercise all the three forms of power of the governance - Executive, Legislature and Judiciary. i.e there should not concentration of powers in the hands of any particular institution or agency of the Government. The Legislature should be concerned with the making law but not in its implementation / administering it The Administration (Executive) should not control the legislature nor should it over take the justice system because doing so it might lead to arbitrary and capricious justice. The Judiciary should be independent of Executive and Legislation

The Doctrine says that, in a free democracy, these three functions are separated and exercised by three separate organs of the Government.

History

The history of the doctrine traces back to the days of Plato and Aristotle. John Bodin, Locke and Montesquieu further enhanced it in modern times. Separation of powers and the supremacy of Judiciary during the 1700 has made the King subject to the law as made by the Parliament or the Courts. Despite this, the King has a power called Prerogative - to act according to his discretion for the public good, without the prescription of law. The Rule of Law impacted the Administrative Law of England while the Doctrine of Separation of Powers impacted the Administrative Law of the Untied States.

Locke differentiated between what he called: Discontinuous Legislative Power: Time to time interference in general rule making power and not continuous. Continuous Executive Power: All the powers of executive and judiciary Federative Power: Power to conduct foreign affairs

According to Locke, the three powers of government are: Making the laws Carrying out (executing) the laws Manage foreign and military affairs

According to him, the first should be separate from the other two but the latter should be headed by one and the same organ - the King. Justice is still the King's subject. The King always has Royal Prerogatives that can be used for the public good. Soon after Locke's Treatise of British Judiciary, the King was confined to Locke's federative power and barred from both making and applying law. This was followed by Montesquieu's Spirit of Laws (1748). Montesquieu on the Doctrine Division of power into: General Legislative Power Two-kinds of Executive Power Executive power similar to Locke's federative power

Civil Law executive power that includes executive and judiciary power

Rule of Law
The concept was introduced by Chief Justice Sir Edward Coke during the James I rule. Sir Coke said that the King is under God and the Law and that the Law is supreme over executive.

The term 'Rule of Law' was derived from the French phrase la principe de legalite (the principle of legality) The principles of Cole are developed by Dicey and are written in his book Law and the Constitution (1885).

A V Dicey stated three principles to the term 'Rule of Law'. 1. Supremacy of Law 2. Equality before Law 3. Predominance of of Legal spirit The Rule of Law impacted the Administrative Law of England while the Doctrine of Separation of Powers impacted the Administrative Law of the Untied States. Supremacy of Law 'Supremacy of Law' is the central and most characteristic feature of Common Law. Law is the absolute supreme and predominant as opposed to influence of arbitrary power or discretionary power. English men are ruled by the Rule of Law and law alone. A man can be punished by rule of law, and by nothing else. Wade: Government is a subject of the Rule of Law, rather than the law being a subject of the Government. Equality before Law There must be equality before law or equal subjection of all classes to the ordinary law. All people should be subject to one and the same law. There is no need for extraordinary tribunals or special courts to deal with cases of Government and its servants (such as the one seen in Droit Administratif). Of course, Dicey accepted that administrative authorities are exercising 'judicial' functions though they are not 'courts'. Lord Denning: "Our English law does not allow a public officer to shelter behind a driot administratif.

Predominance of of Legal spirit Rights (such as right to personal liberty, freedom from arrest etc.) are the result of judicial decisions in England. The rights are a result of court judgements rather than from being enshrined in the Constitution. The Constitution is a consequence (and not the source) of the rights of the individuals.

Thus, Courts are the guarantors of the liberty Rights would be secured more adequately if they were enforceable in courts rather than just being written in the Constitutional document.

Mere incorporation in a written constitution is of no use in the absence of effective remedies of protection and enforcement.

Advantages of Dicey thesis Helped to make administrative authorities confine to their limits. Became a yard stick to test administrative actions. Helped for the recognition and the growth of the concept of administrative law.

Disadvantages of Dicey thesis Dicey thesis was not completely accepted even in his era. Even at this time, there was a long list of statutes which permitted the exercise of discretionary powers of the Crown which could not be called to the Court. Dicey instead of not just disallowing arbitrary powers has also insisted that administrative authorities should not be given discretionary powers. He failed to distinguish between 'arbitrary powers' to 'discretionary powers'. He misunderstood the real nature of droit administratif which was successful in France.

Modern Concept of Rule of Law


Today, 'Rule of Law' is seen more as a concept of rights of citizens. Accepted in almost all countries outside the Communist.

Related Cases / Recent Cases / Case Law


Keshavananda Bharati v Union of India, AIR 1973 SC 1461: Conformity to the Rule of Law does not mean fairness.

Constitutional Provisions
Article 21 of Constitution of India: Protection of life and personal liberty

Scope of Administrative Law


Administrative Law as a law is limited to concerning powers and procedures of administrative agencies. It is limited to the powers of adjudication or rule-making power of the authorities. Thus, it is limited to: Establishment, organization and powers of various administrative bodies Delegated legislation - the Rule-making power of the authorities (In Administrative Law, Delegated legislation is law made by an executive authority under powers given to them by primary legislation in order to implement and administer the requirements of that primary legislation. It is law made by a person or body other than the legislature but with the legislature's authority. Generally, delegation of legislation is necessary because the law can by an expert or a local body which has a better understanding, knowledge and expertise than the Legislature. It is also known as 'secondary legislation' or 'subordinate legislation'. It is now firmly established that Excessive delegation is unconstitutional.) Judicial functions of administrative agencies such as tribunals Remedies available such as Writs, Injunction etc. Procedural guarantees such as the application of principles of Natural Justice Government liability in tort Public corporations

Sources of Administrative Law

Constitution

The Constitution is the creator of various several administrative bodies and agencies. It gives a brief details about the mechanism and the administrative powers granted to various authorities.

Acts and Statutes


Acts and Statutes passed by legislature are important sources of administrative law because they elaborately detail the powers, functions and modes of control of several administrative bodies.

Ordinances, Notifications, Circulars etc.


Ordinances are issued by the President (at Union / Federal level) and Governor (at State level) and are valid for a particular period of time. These ordinances give additional powers to administrators in order to meet urgent needs. Administrative directions, notifications and circulars provide additional powers by a higher authority to a lower authority. In some cases, they control the powers.

Judicial decisions
Judicial decisions or judge-made law have been responsible for laying down several new principles related to administrative actions. They increased the accountability of administrative actions and acted as an anchor between the notifications, circulars etc. to be linked and complied directly or indirectly with the constitutional or statutory provisions.

Tribunals Tribunalization in India is done in order to implement Administrative Law in India. Tribunal is: a body of administrative character powered with judicial powers to adjudicate on question of law or fact that affects rights of citizens has judicial or a quasi-judicial functions work in a judicial manner

Since tribunals follow the principles of natural justice, they do not follow the Indian Evidence Act, 1872 that is commonly followed in Courts.

The necessity of establishing administrative tribunals was recommended by the Swaran Singh Committee appointed by the Parliament.

Categories of Tribunals in India


There are four categories of tribunals in India: Administrative bodies exercising quasi-judicial functions, whether as part and parcel of the Department or otherwise Administrative adjudicatory bodies which are outside the control of the Department involved in the dispute and hence decide disputes like a judge free from judicial bias Example: The Income Tax Appellate Tribunal is under the Ministry of Law and not under Ministry of Finance. Tribunals under Article 136 in which the authority exercises inherent judicial powers of the State Because the functions of the body are considered important over the control, composition and procedure, even Departmental bodies also can be classified as Tribunals Tribunals constituted under Article 323A and 323B and having constitutional origin and enjoy the powers and status of a High Court

Partial List of Tribunals in India


Industrial Tribunals set up under Industrial Disputes Act, 1947 Railway Rates Tribunals set up under Indian Railways Act, 1890 Income Tax Appellate Tribunal set up under Income-Tax Act, 1961 Court of Survey set up under Merchant Shipping Act, 1958 Telecom Dispute Settlement Appellate Tribunal Customs, Excise and Gold (Control) Appellate Tribunal

Partial List of Authorities who are not tribunals


Customs Officer Conciliation Officer Domestic Tribunal Military Tribunal Private Arbitrator Legislative Assembly Registrar acting as a Taxing officer Zonal Manager of Life Insurance Corporation of India Advisory Board under Preventive Detention Laws State Government exercising its power to make a reference under the Industrial Dispute Act.

Related Case / Recent Cases / Case Law


Durga Shankar Mehta Vs Raghuaj Singh, AIR 1954 SC 520: Supreme Court of India said that the expression 'tribunal' according to Article 136 does not mean something as 'court' but includes within it, all adjudicating bodies, provided they are constituted by State and are given judicial powers as distinguished from administrative or legislative functions. Bharat Bank Vs Employees of Bharat Bank, AIR 1950 SC 520: Supreme Court has laid down certain characters that a tribunal should possess. Kihoto Hollohan vs Sri Zachillu, (1987) 1 Scale 338: Referring to its earlier decision in Harinagar Sugar Mills vs Shyam Sunder Jhunjhunwala, AIR 1961 SC 1669, the Supreme Court has given a set of points to test to determine whether an authority exercising adjudicatory powers is a tribunal or not: There is a lis - an affirmation by one party and denial by the other The dispute involved decision on the rights and obligations of parties The authority is called upon to decide it

Harinagar Sugar Mills vs Shyam Sunder Jhunjhunwala, AIR 1961 SC 1669: According to the Article 136, Article 226 and Article 227 of the Constitution of India, the terms Court and Tribunal means two different things.

APHL Conference, Shillong Vs W A Sangma, AIR 1977 SC 2155: Election Commission of India is a tribunal as it was setup by the Constitution and it was empowered with adjudicating powers along with administrative powers.

ACC vs PN N Sharma, AIR 1965 SC 1595: Tribunal has some, but not all, tapping powers of the Court

L Chandra Kumar vs Union of India, AIR 1997 SC 1125: In regard to tribunals, the Supreme Court of India held that the clause of Article 323A that excludes the jurisdiction of High Courts and Supreme Court under Articles 226 / 227 and 32 of the Constitution is unconstitutional.

Ankit Steel, Indore vs Bank of India, Indore, 11 (2005) BC 534 (MP) Provisions of Order 47, Rule 1 of CPC, apply to cases decided by Tribunal and Appellate Tribunal Appellate Tribunal are to entertain review application like civil courts.

Mallappa Murigeppa Sajjan vs State, AIR 1980 Kant 53: Karnataka High Court held the State Government cannot suspend the working of a tribunal.

P Satyanarayana vs Land Reforms Tribunal, AIR 1980 AP 149: The Andhra Pradesh High Court held that in the absence of any statutory provisions, a tribunal cannot review its own decision.