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AN IN-DEPTH STUDY ON THE HISTORICAL PERSPECTIVE AND SCOPE OF

ADMINISTRATIVE LAW IN INDIA

6.2 Administrative Law

Submitted by:
Abhishek Dhar Karmakar
SM0113001
III year; VI semester

National Law University, Assam

CONTENTS
Table of Cases ..i
Table of Abbreviations ....................................................ii
Introduction.......1
Scope & Objectives.......2
Literature Review..........2
Research Questions...........3
Research Methodology......3
History of Administrative Law in India................................................................................3
Scope of Administrative Law in India ..................................................................7
Measures of Administrative Law...9
Conclusion...
................10Bibliography
...........................iv

TABLE OF CASES

1. Dwarka Prasad Laxmi Narain v. State of UP


2. Firm Ghulam Hussain Haji Yakoob and Sons v. State of Rajasthan
3. Bidi Supply Co. v. Union of India

TABLE OF ABBREVIATIONS

AIR

All India Reporter

All

Allahabad

Anr.

Another
Bom

Bombay

Cal

Calcutta

Del

Delhi

Ed.

Edition

Guj

Gujarat

ILR

Indian Law Review

ITO

Income Tax Officer

ITR

Income Tax Reporter


J&K

Jammu and Kashmir

Kant

Karnataka

MP

Madhya Pradesh

Nag

Nagpur
Or.

Order

Ori

Orissa

Ors.

Others

Punj

Punjab
R.

Rule

SC

Supreme Court

SCC

Supreme Court Cases

SCN

Show Cause Notice

SCR

Supreme Court Reporter

UOI

Union of India

v.

Versus

Vol.

Volume

Abstract
Administrative law is a field that has grown by leaps and bounds over the past century as a
formidable legal discipline. The study of administrative law would be incomplete without a
thorough understanding of the origins of this all pervasive field of law. The study of its
origins is what compels us to explore its erudite nature and also the extent to which it
spreads its tentacles into the legal system and the society of a country by being both the
torchbearer and watchdog of administrative authority. This paper will show this process of
evolution of administrative law as a tool for control over administrative power and authority
by viewing it using the lens of the Indian legal system.

Introduction
Administrative law took root as a legal discipline in the middle of the 20th century. It
concerns itself with the operation and control of administration, emphasizing on function
rather than structure. The administrative process has been seen to prevail in most progressive
societies, particularly in welfare states, where the administrative machinery of the
government prepare schemes for the progress of the societies.
Sometimes the growth of administrative law, though a necessity for development and growth,
at times spells negation of people's rights and values. Administrative authority sometimes
operates with a side effect of trampling the civil liberties of the people. Thus, impatience with
the democratic process might give way to the influence of authoritarianism, making the
possibility of tyranny all the more inevitable.
In response to these kinds of situations is where administrative law comes in. Administrative
law seeks to contribute to the stability and growth of the society by maintaining a just social
order. It aims to do this by channelizing administrative powers to achieve the basic aim of
any civilized society, that is, "growth with liberty".
Therefore, administrative law represents a regulation of administrative space based on
principles, whether domestic or global, which can be practically regulated for the expansion
of human freedoms. Thus, today, administrative law represents the way of conceptualizing
and articulating a new domestic and socio-economic order.

This research paper will expound upon the scope of administrative law as a legal discipline,
and will attempt to trace its origins in the judicial system of the country of India.
Scope & Objectives
The scope of the project is limited to the Constitution of India, 1908. The objectives of the
project are as follows;

To explore the origins of Administrative law in India.

To use the information in the origins and the Constitution to ascertain the scope of
administrative law.

Literature Review
I.P. Massey, Administrative Law, 8th Edition, Eastern Book Company, Lucknow, 2012
This book provides a comprehensive, authoritative and lucid treatment of the subject,
compressing in its volume a vast amount of essential information. The work touches upon
and explains many grey areas in administrative law. It covers all the aspects of the
administrative law including India and abroad and provides an insight on the development of
the administrative law.
Mark Elliot, Administrative Law Text and Materials, 4th Edition, Oxford University Press,
Chennai, 2005
The book combines carefully selected extracts from key cases, articles, and other sources
with detailed commentary and explanation. An essential text while studying the development
of the administrative law. Rather than simply presenting administrative law as a straight
forward body of legal rules, this engaging, critical text considers the subject as an expression
of underlying constitutional and other policy concerns and origin and development of
Administrative Law.
Martin Loughlin, Foundations of Public Law, 1st Edition, Oxford University Press,
Chennai, 2010
This book offers an account of the formation of the discipline of public law with a view to
identifying its essential character, explaining its particular modes of operation, and specifying
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its unique task. Building on the framework, conceives public law broadly as type of law that
comes into existence as a consequence of the change that give birth to modern state, public
law establishes the authority and legitimacy of modern government.

Research Questions
1.
2.
3.
4.

What is the general meaning, nature and scope of the term Administrative law?
How has the discipline of administrative law evolved over the years?
What are opinions of jurists with regard to the scope of administrative law?
What is the extent of its scope?

Research Methodology
For the completion of the project the doctrinal method has been used where it will be
concerned with the documental research, as the library was the only source of information put
to use. Internet source also provided substantive information. Secondary sources of data have
been used where documents have gone through some interpretations and has been used
further for the study of research problem.
History of Administrative law in India
The earliest traces of administrative law as we understand it today existed in India from the
times of the early British administration. The focal point of action of the British
administrative was to maximize profit, and for this, efficiency in the administration was of
utmost necessity.
Therefore, during the days of the East India Company, the courts were tools in the Company's
hands. The executive had overriding powers in matters of administration of justice. However,
the establishment of the Supreme Court at Calcutta in 1774 under the provisions of the
Regulating Act, 1773 inaugurated an era in independent judicial administration. But with the
passage of the Act of Settlement, 1781, the era came to an end and all the later developments
in the judicial system during the Company's time worked to the detriment of the native
population.
From the Battle of Plassey in 1757 until Independence, one significant advantage that the
Indian administration had from a centralized but undemocratic form of government, was the
facility to make laws. During that period, the executive was invested with such wide powers
to make rules as a modern democratic legislature cannot even imagine. Even prior to the
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famous Code of Civil and Criminal Procedures known as the Cornwallis Code of 1793,
Elphinstone Code of 1827 and many other regulations were in operation. These regulation
laws aimed mainly at the regulation of the powers of the administration and their control.
Thus, expansion of the administrative powers and provisions of some kind of control went
hand in hand. For instance, Regulation 10 of 1822 which codified the law regarding the
excise on salt, opium, and general custom dealt mainly with the powers of administrative
agencies (salt chowkies) and also the control of these agencies. It made provisions regarding
power of confiscation, procedure in the proceeding of confiscation and the control to be
exercised by the courts. Section 108 of the Regulation of 1822 reminds of one of the
provisions of the Administrative Procedure Act, 1946 when administrative agencies were
required to record facts, evidence and the decision. Judicial relief was made available only
after the exhaustion of administrative remedies. The courts, though had ample powers to set
aside an administrative action, yet paid great respect and attention to their decisions.
Till the end of the British rule in India, the government was concerned with the most primary
duties only, and the functions of a welfare state were not discharged. However, increasing and
rapid strides in the fields of communication and transport in the West resulted in the need for
the control of administrative agencies through regulatory bodies and tribunals like the InterState Commerce Commission in the US and the Railways and Canal Commission in England.
Finally, the two World Wars brought in a plethora of administrative agencies exercising
control over almost every aspect of individual life.
When India became independent, the philosophy of welfare state was made the creed of the
Indian Constitution. The Preamble of the Constitution laid down that the Constitution aims at
establishing a sovereign, socialist, secular, democratic republic, so as to secure to all its
citizens social, economic and political justice; liberty of thought, expression, belief, faith, and
worship; equality of status and of opportunity; and to promote among them all fraternity
assuring dignity of the individual and the unity of the nation. Article 381 further provides that
the State shall strive to secure a social order in which social and economic justice shall
inform all institutions of national life. Article 392 requires the State to direct its policy
towards securing an order in which citizens have equal rights to an adequate means of
livelihood; that the ownership and control of the material resources of the community are so
1 Article 38 of the Constitution of India.
2 Article 39 of the Constitution of India
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distributed as best to subserve the common good; that there is no concentration of wealth; and
that means of production are not used to the common detriment; and there is equal pay for
equal work.
Article 39-A3 and 414 oblige the State to provide for equal justice and free legal aid; to work
within its economic capacity and development making effective provision for securing the
right to education, assistance in old age, unemployment and other contingencies. Articles 43 5
and 43-A6 enjoin upon the State to secure work for the workers, a living age, a decent
standard of living and participation in the management of industries. Article 45 7 obliges the
State to provide free and compulsory education for children up to the age of 14 years. Article
478 enjoins upon the State to regard the raising of the level of nutrition, the standard of living
of its people, and the improvement of public health as among its primary duties. Article 48-A 9
imposes a duty upon the State to protect and improve the environment of public health as
among its primary duties. Article 48-A imposes a duty upon the State to protect and improve
the environment. This is in brief a blueprint for the development of future India and the motif
of socialism which looms large in constitutional text and context.10
These welfare and socialistic aims and objects cannot be achieved by the State without the
growth of administrative process. Articles 323-A11 and 323-B12 were added to the
Constitution to facilitate the establishment of special tribunals to meet the needs of
administrative justice, which the growth of administrative process had created. From 1990s
onwards with the adoption of the policy of economic liberalization and globalization of
economy, huge regulatory space had been created which was to be administered by creating
3 Article 39-A of the Constitution of India
4 Article 41 of the Constitution of India
5 Article 43 of the Constitution of India
6 Article 43-A of the Constitution of India
7 Article 45 of the Constitution of India
8 Article 47 of the Constitution of India
9 Article 48-A of the Constitution of India
10 Prof. Upendra Baxi, "Pre-Marxist Socialism and the Supreme Court", (1983) 4 SCC J-3
11 Article 323-A of the Constitution of India
12 Article 323-B of the Constitution of India
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various regulatory agencies. Corporatization of economy has given further impetus to the
growth of administrative process in India.
Besides providing for a functional government and consequential growth in the
administrative process, the Constitution has also provided for an elaborate control mechanism
so that the water may not overrun its banks. Under Articles 32 13 and 22614, the Supreme Court
and the various High Courts have been invested with powers to issue writs of certiorari,
mandamus, quo warranto, prohibition and habeas corpus to check the excesses of the
government and the administrative agencies. Article 30015 gives a right to individuals to file a
suit against the government for torts committed by its servants. Article 311 16 protects
government servants from arbitrary actions of the government in the matters of dismissal,
termination and reduction in rank. In the same manner, Article 13617 confers power on the
Supreme Court to grant special leave to appeal from any judgment, decree, determination,
sentence or order passed or made by any court or tribunal in India. Article 227 18 further
invests the High Courts with the power of superintendence over all courts and tribunal within
their jurisdiction.
All legislative actions of the administration have been expressly brought by the Constitution
within the purview of Article 1319 by defining "law" as including "order", "bye-law", "rule"
and "notification", etc. having the force of law. Therefore, the rule making action of the
administration can be challenged not only on the ground that it is ultra vires the delegating
statute but also on the ground that it violates the fundamental rights guaranteed under the
Constitution20. An administrative act will also be void if it contravenes any other provisions
of the Constitution outside Part III of the Constitution, i.e. Articles 301, 311, 314 or 365. 21 In
13 Article 32 of the Constitution of India
14 Article 226 of the Constitution of India
15 Article 300 of the Constitution of India
16 Article 311 of the Constitution of India
17 Article 136 of the Constitution of India
18 Article 227 of the Constitution of India
19 Article 13 of the Constitution of India
20 Dwarka Prasad Laxmi Narain v. State of UP., AIR 1954 SC 561;
21 Firm Ghulam Hussain Haji Yakoob and Sons v. State of Rajasthan, AIR 1963 SC 379
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the same manner when the action of the administration is quasi-judicial, it can be challenged
not only on the ground that it is ultra vires the Constitution but also on the ground that the
delegating act is itself unconstitutional22. Thus, within the fabric of tremendous growth in the
administrative process in almost every field, an effective control mechanism has been oven.
Besides the growth of administrative process, which is possible through legislation and
executive actions, the Constitution itself provides for the establishment of some
administrative agencies to regulate a particular field, i.e. Article 263 23, creation of Inter-State
Council; Article 28024, Finance Commission; Article 26225, Inter-State Water Dispute
Authority; Article 31526, Public Service Commissions of India; and Article 31427, Election
Commission.

Scope of Administrative Law in India

The four basic tenets of the foundation of administrative law may be identified as: 1)
checking abuse or detournement of administrative power; 2) ensuring citizens an impartial
determination of their disputes by officials; 3) protecting citizens form unauthorised
encroachment on their rights and interests; 28 and 4) making those who exercise public power
accountable to the people.
Early English writers did not differentiate between administrative law and constitutional law
and, therefore, the definition they attempted was too broad and general.

22 Bidi Supply Co. v. Union of India, AIR 1956 SC 479;


23 Article 263 of the Constitution of India
24 Article 280 of the Constitution of India
25 Article 262 of the Constitution of India
26 Article 315 of the Constitution of India
27 Article 314 of the Constitution of India
28 Julius Stone, Social Dimensions of Law and Justice (1966) 711
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Sir Ivor Jennings defines administrative law as the law relating to administration. It
determines the organization, powers and the duties of administrative authorities. 29 This
formulation does not differentiate between administrative and constitutional law. It lays entire
emphasis on the organization, power and duties to the exclusion of the manner of their
exercise. A student of administrative law is not concerned with how a minister is appointed
but only with how a Minister discharges his functions in relation to an individual or a group.
How the Minister of Housing and Rehabilitation is appointed is not the concern of
administrative law, but when this Minister approves a scheme for a new township, which
involves the acquisition of houses and lands of persons living in that area, questions of
administrative law arise. Jennings' formulation also leaves many aspects of administrative
law untouched, especially the control mechanism.
Likewise, A.V. Dicey, like Jennings, belongs to that group of English writers who did not
recognize the independent existence of administrative law. He formulated that administrative
law relates to that portion of a nation's legal system which determines the legal status and
liabilities of private individuals in their dealings with public officials, and specifies the
procedure by which those rights and liabilities are enforced.30
In India, Prof. Upendra Baxi's formulation lays special emphasis on the protection of the
"little man" from the arbitrary exercise of public power. According to him, administrative law
is a study of the pathology of power in a developing society. Accountability of the holders of
public power for the ruled is the focal point of his formulation. According to him,
administrative law today remains only as an "instrument of middle-class Indians to combat
governmental power through courts".31
According to Prof. I.P. Massey's book on administrative law, administrative law is that branch
of public law which deals with the organization and powers of administrative and quasiadministrative agencies and prescribes principles and rules by which an official action is
reached and reviewed in relation to individual liberty and freedom.
This formulation, when analyzed, can be summarized in five key points:

29 Jennings, The Law and the Constitution (5th Edition) 217


30 Dicey, Law of the Constitution, 329
31 Ibid
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Pervasive legal discipline: This perspective views administrative law as an all pervasive
legal discipline. This is so because principles of administrative law emerge and develop
whenever and wherever any person becomes the victim of arbitrary exercise of public power.
And the allegations of arbitrary exercise of power can be raised in almost all areas of
substantive law. Therefore it will not be incorrect to say that none can specialize in
Administrative law.32
Law in a realist's sense: Administrative law is not a law in the lawyer's sense like property
law or contract law. It is a law in the realist's sense of the term which includes statute law,
administrative rule making, precedents, customs and administrative directions. It also
includes the study of something which may not be termed as "law" in the true sense of the
term such as administrative circulars, policy statements, memoranda and resolutions. 33
Meaning of administration: Administrative law is concerned with administration. What then
is meant by 'administration'? The position is that administration has assumed such extensive,
sprawling and varied dimensions that it is not easy to define it. It is not enough to say that an
administrative body is one which administers, for the administration does not only put the
law into effect, but does much more. It legislates and adjudicates. Sometimes, administration
is explained in a negative way by saying that what does not fall within the purview of
legislature and judiciary is administration.
Administrative process- Administrative law is vitally concerned with administrative
process. The administrative process consists of carrying on business of government, or
regulating the affairs of individuals in the interests of community. Due to various reasons, the
administrative process has come to stay as indispensable phenomenon in all progressive
societies, particularly in a welfare state where many schemes for the purposes of society are
prepared and administered by the government.
The emergence of social welfare concept has affected the democracies very profoundly. It has
led to state activism. There is phenomenal increase in the area of state operation. A number of
functions which were left to private agencies have been taken over by the state. It runs buses,
railways and postal services. It undertakes planning of social and economic life of the
community with a view to raise the living standards of the people and reduce concentration of
wealth. It grants, refuses and revokes licenses.
32 IP Massey, Administrative Law, Introduction by Prof. Upendra Baxi
33 Garner, Administrative Law, 2 (1985)
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Expanding horizons of administrative jurisdiction: As there is unprecedented increase in state


activities, the executive exercises very wide powers. Apart from pure administrative and
executive functions, by way of delegated legislation it exercises legislative functions and
makes a plethora or rules, regulations, bye-laws, notifications, etc. substantially affecting the
rights of public at large.
Similarly, administrative agencies also exercise powers of adjudication of disputes by
establishing a number of administrative tribunals. Provisions have been made in various
socio-economic statutes taking away jurisdiction of competent courts and virtually conferring
blanket powers on these tribunals. Over and above quasi-legislative and quasi-judicial
powers, administrative agencies also possess wide discretionary powers. There are various
preventive detention laws under which they can detain and put behind bars citizens and
subjects even without regular trial by depriving them of their freedom and liberty. There is a
tendency of abuse and misuses of discretionary power on the part of officers.
Measures of administrative law:
Measures which are important in administrative law arei) to check abuse or detournement of administrative power,
ii) to ensure to citizens an impartial determination of their dispute by officials.
iii) to protect them form unauthorized encroachment on their rights and interests.34
iv) to make those who exercise public power accountable to the people,
v) to see that holders of public power justify their action as legally valid and socially wise
and just, and
vii) to ensure that public power is not exercised against public interest.
In this way administrative law is a study of the pathology of power in a developing society. It
is a branch of law which is being increasingly developed to control abuse and misuse of
governmental power and to keep the executives and its various instrumentalities and agencies
within the limits of their power.
Conclusion
34 Julius Stone, Social Dimensions of Law and Justice, 711 (1966)
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From the analysis of the history of administrative law in India, and also the scope and nature
of administrative law as a discipline for maintaining the control and discipline of the
administrative authorities of the country, we can safely say that the foothold of administrative
law in the legal machinery of India is now stronger than ever. Today in India, the
administrative process has grown so much that it will not be out of place to say that today we
are not governed but administered. In this context, the Law Commission of India rightly has
rightly observed that the executive should not overstep its boundaries of power and spread its
excess authority into the domain of civil liberties of the citizens.35
Observations of Law Commission are no less relevant today when India has adopted the
policy of liberalization, privatization and globalization in which administrative law has
developed international dimensions. Though state is now withdrawing from business, yet its
functions as a facilitator, enabler and regulator are bound to increase. Growth of new centres
of economic power which often exercise power in total disregard of the fundamental rights of
the people, especially of disadvantaged sections of the society, will put emphasis on the
development of new norms of rule of law and judicial review for reconciling economic
growth with social justice.
To appreciate the principles of administrative law, a good knowledge of social, economic,
political and cultural realities is necessary and these realities are: chaotic exercise of public
power; corruption and lack of accountability; factionalism based on caste, religion, language
and region; and low performance by public authorities. These realities make the study of
administrative law significant and vital. People have not lost faith in the system, they want it
to perform and administrative law plays a vital role in system performance.

35 Fourteenth Law Commission Report, Vol. II, 672.


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Bibliography
Primary Sources
The Constitution of India, 1950

Secondary Sources
Books:
M.P. Jain and S.N Jain, PRINCIPLES OF ADMINISTRATIVE LAW, 7 th Edition, 2011, Lexis
Nexis Publication, Nagpur
H.W.R. Wade & C.F. Forsyth, ADMINISTRATIVE LAW, 11th Edition, 2012, Oxford
Publication, United Kingdom
SP Sathe, ADMINISTRATIVE LAW, 7th Edition, 2012, Lexis Nexis Publication, Nagpur
Dr. U.P.D Kesari, ADMINISTRATIVE LAW, 18 th Edition, 2010, Central Law Publication,
Allahabad
Dr. J.J.R. Upadhyaya, ADMINISTRATIVE LAW, 8 th Edition, Central Law Agency
Publication, Allahabadh
C.K. Takwani, LECTURES ON ADMINISTRATIVE LAW, 5 th Edition, 2014, Eastern Book
Company Publication, Lucknow.
I.P.Massey, ADMINISTRATIVE LAW, 8th Edition, 2012, Eastern Book Company
Publication, Lucknow.

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