ADMINISTRATIVE LAW

Definitions

There is a great divergence of opinion regarding the definition of the concept of the administrative law. This is because of the
tremendous increase in the administrative process that it makes impossible to attempt any precise definition of administrative
law which can cover the entire range of the administrative process. Hence, one has to expect differences in scope and emphasis
in defining the administrative law. This is true not only due to the divergence of the administrative process within a given country
but also because of the divergence of the scope of the subject in the continental and Anglo – American legal systems.

However, two important facts should be taken into account in an attempt at understanding and defining the administrative law.

 Firstly, administrative law is primarily concerned with the manner of exercising governmental power. The decision-
making process is more important than the decision itself.

 Secondly, administrative law cannot fully be defined without due regard to the functional approach. This is to mean that
the function (purpose) of administrative law should be the underlying element of any definition. The ultimate purpose of
the administrative law is controlling the exercise of governmental power. The control aspect impliedly shades some light
on the other components of its definition.

Nature and Scopes of Administrative Law

Administrative law determines the organization, powers and duties of administrative authorities. The emphasis of Administrative
Law is on procedures for formal judgment based on the principles of Natural Justice and for rule making. Administrative law also
determines the nature and scope of the powers deliberated to the government official by the specific legislation. Through
legislation, the Parliament delegate specific powers as well as duties to government officials to enable them to act on behalf of
the government.

The concept of Administrative Law is founded on the following principles:

a) Power is conferred on the administration by law

b) No power is absolute or uncontrolled howsoever broad the nature of the same might be.

c) There should be reasonable restrictions on exercise of such powers depending on the situation.

The Administrative law deals with the structure, functions and powers of the Administrative structures. It also lays down the
methods and procedures which are to be followed by them during the course of remedies which are available to the persons
whose rights and other freedoms are damaged by their operations. Administrative law specifies the rights and liabilities of
private individuals in their dealings with public officials and also specifies the procedures by which those rights and liabilities can
be enforced by those private individuals. It provides accountability and responsibility in the administrative functioning. Also there
are specified laws and rules and regulations that guide and direct the internal administration relations like hierarchy, division of
labor etc.

Reasons for Growth of Administrative Law

1. Change in role of State –

There is a radical change in the philosophy of the role played by the State. The negative policy of maintaining “law and order”
and of “laissez faire” has radically changed. The State has not confined its scope to the traditional and minimum functions of
defense and administration of justice, but has adopted the positive policy and as a welfare state has undertaken to perform
varied functions.
2. Failure of Judiciary –

The judicial system was proved to be inadequate to decide ad settle all types of disputes. It was slow, costly, inept, complex and
formalistic. It was already overburdened and it was not possible to expect speedy disposal of even very important matters e.g.,
disputes between employers and employees, lockouts, strikes, etc. therefore, industrial tribunals and labour courts were
established which possessed the techniques and expertise to handle these complex problems.

3. Inadequate legislative action –

The legislative process was also inadequate. It had no times and technique to deal with all the details.It was impossible for the
legislature to lay down detailed rules and procedures, and even whendetailed provisions were laid down by the legislature, they
were found to be defective and inadequate.Therefore, it was necessary to delegate some powers to the administrative
authorities.

4. Speedy Justice –

Administrative authorities can avoid technicalities. Administrative law represents functional ratherthan a theoretical and
legalistic approach. The traditional judiciary is conservative, rigid and technical.It is not possible for courts to decide cases
without formality and technicality. Administrativetribunals are not bound by rules of evidence and procedure, and they can take
a practical view of thematter to decide complex problems.

5. Scope for experimentation

There scope of experimentation in administrative process. Here, unlike in legislation, it is notnecessary to continue a rule
until commencement of the next session of the legislature. Here a rule can be made, tried for some time and if it is defective, can
be altered or modified within a short period.Thus, legislation is rigid in character, while, administrative process is flexible.

At present all the technical experts are with the Administrative organs. In case it is attempted to shiftthe legal job of
Administration to the present judiciary and the present legislations, the same will behandicapped due to lack of technical
knowledge. Thus in order to utilise and use the talent of thetechnical experts which are at present with the Administrative organs
it is really wise creating newand coordinating branch of law i.e. Administrative law

Sources of Administration Law

Administrative law principles and rules are to be found in many sources. The followings are the main sources of administrative
law in India.

 The Constitution

 Legislation Acts and Statutes

 Delegated Legislation

 Judicial Decision

Between Constitutional and Administrative law

Constitutional Law:-

 Constitutional law is genus.

  Constitutional law deals with various organs of the state.

 It deals with the structure of the state.

 It is the highest law.

 It gives the guidelines with regard to the general principles relating to organization and powers of organs of the state,
and their relations between citizens and towards the state. It touches almost all branches of laws in the country.

 It also gives the guidelines about the international relations.

Administrative law:-

 Administrative law is a species of constitutional law.

 It deals with those organs as in motion.

 It deals with the functions of the state.

 It is subordinate to constitutional law.

 It deals in details with the powers and functions of administrative authorities.

 It does not deal with international law. It deals exclusively the powers and functions of administrative authorities.

INTRODUCTION TO RULE OF LAW

The concept of Rule of Law is that the state is governed, not by the ruler or the nominated representatives of the people but by
the law. A county that enshrines the rule of law would be one wherein the Grundnorm of the country, or the basic and core law
from which all other law derives its authority is the supreme authority of the state. The monarch or the representatives of the
republic are governed by the laws derived out of the Grundnorm and their powers are limited by the law. The King is not the law
but the law is king

The origins of the Rule of Law theory can be traced back to the Ancient Romans during the formation of the first republic; it has
since been championed by several medieval thinkers in Europe such as Hobbs, Locke, and Rousseau through the social contract
theory. Indian philosophers such as Chanakya have also espoused the rule of law theory in their own way, by maintaining that
the King should be governed by the word of law.

The formal origin of the word is attributed to Sir. Edward Coke, and is derived from French phase ‘la principe de legalite’ which
means the principle of legality. The firm basis for the Rule of Law theory was expounded by A. V. Dicey and his theory on the rule
of law remains the most popular. Dicey’s theory has three pillars based on the concept that “a government should be based on
principles of law and not of men”, these are:

Supremacy of Law:

This has always been the basic understanding of the rule of law that propounds that the law rules over all people including the
persons administering the law. The lawmakers need to give reasons that can be justified under the law while exercising their
powers to make and administer the law.
Equality before the Law:

While the principle of supremacy of law sets in place cheques and balances over the government on making and administering
the law, the principle of equality before the law seeks to ensure that the law is administered and enforced in a just manner. It is
not enough to have a fair law but the law must be applied in a just manner as well. The law cannot discriminate between people
in matters of sex, religion, race etc. This concept of the rule of law has been codified in the Indian Constitution under Article 14
and the Universal Declaration of Human Rights under the Preamble and Article 7.

Pre-dominance of legal spirit:

In including this as a requirement for the rule of law, Dicey’s belief was that it was insufficient to simply include the above two
principles in the constitution of the country or in its other laws for the state to be one in which the principles of rule of law are
being followed. There must be an enforcing authority and Dicey believed that this authority could be found in the courts. The
courts are the enforcers of the rule of law and they must be both impartial and free from all external influences. Thus the
freedom of the judicial becomes an important pillar to the rule of law.

In modern parlance Rule of Law has come to be understood as a system which has safeguards against official arbitrariness,
prevents anarchy and allows people to plan the legal consequences of their actions.

Droit Administratif - Droit Administratif has been defined by the French authorities in general terms as- the body of rules which
regulate the relations of the administration of the administrative 1 authorities towards private citizens.

Droit Administraif is in itself the product of the doctrine of separation of powers. This doctrine has meant in France
that there should be separation between the courts and the administrative bodies. In this aspect, the separation
theory has had a greater imprint in France than in USA. The separation doctrine in France has resulted in non
interference by the courts in the working of administrative authorities. The most original aspect of French
administrative law therefore is the independence of the administration from judicial control. The ordinary courts
exercise no control over the administrative functioning. In France, a person has no avenue for redress of grievances
against the administration through the court.2 Thus it does not represent the principles and rules laid down by the
French Parliament but contains rules developed by judges of the administrative courts

There are two types of laws and two sets of courts independent of each other. 3All claims and disputes in which these authorities
or officials are parties fall outside the scope of the jurisdiction of ordinary courts and they must be dealt with and decided by the
special tribunals

Origin of the system- Administrative Law of France has grown up, or, at any rate taken its existing form, during the 19 th
Century. It is an outcome of more than a hundred years of revolutionary and constitutional conflict. It owes its origin
to the consular Constitution of the year VIII (1800) created by Bonaparte after the coup d'etat of the 18th of Brumaire.
Droit Administratif of France rests and always has rested at the bottom of two leading ideas alien to the conceptions
of modern Englishmen-

 that, the Government and every servant of the Government possesses, as representative of the Nation, a
whole body of special rights, privileges or prerogatives as against private citizens, and

 that, the extent of these rights, privileges or prerogatives, is to be determined on principles, different from the
considerations which fix the legal rights and duties of one citizen towards another, and

1
2 Shakil Ahmed Khan and Publishers editorial board ,“Principles of administrative law (commentary)”, seventh edition 2011, Lexis Nexis
Butterworths
3 C.K Thakker “Administrative law” 1992, Eastern Book Company
  the necessity of maintaining the so-called “separation of powers” or in other words, preventing the
Government, the Legislature, and, the Courts, from encroaching upon one another's province.

Need for Establishment of a similar Institution in India-

It is true that the establishment of an institution similar to Conseil d’Etat in France may not be quite suited to the conditions in
India. However it is necessary to develop administrative courts in the lines of the French Conseil d’Etat because that will serve as
counterpoise to the arbitrary action of the administration.

The creation of separate hierarchy of administrative courts brings about a clear division between the spheres of civil and
administrative law. There are separate law reports in both the branches of law. In India there is expansion of the public sector
and the State is assuming increasing control over the life of the community. There is a move for building as equalitarian society.
In this context, it is desirable that India should develop a well ordered system of administrative law which may be able to absorb
the new relations of public into this legal system.

The Indian administrative law while basically common law oriented as the Administration is subject to judicial control, has also
imbibed some features of Droit Administratif as is evident from the increasing tribunalisation of the decision making process

Characteristics of Droit Administratif

Firstly, the relation of the Government and its officials towards private citizens must be regulated by a body of rules, which are in
reality laws, but which may differ considerably from the laws, which govern the relation of one private person to another.

This distinction between ordinary law and Administrative Law is one which since 1800, has been fully recognised in France and
forms an essential part of French Public Law.

Secondly, the ordinary judicial tribunals have no concern with matters at issue between a private person and the State, i.e. with
questions of Administrative Law, but such questions must be determined by administrative Courts. Autonomy of the
administration from judicial control does not however mean that it is despotic or free from all control. Administration has been
able to develop its own tribunals to supervise it. Thus administrative tribunals supervise administrative functioning. 4The
Common Law Courts have no concern with questions of Administrative Law. To entrust judicial court with the decision of
any administrative suit is deemed by most Frenchmen as a violation of the doctrine of separation of powers.

Thirdly, any question of jurisdiction, was in theory reserved to the Head of the State but was in effect given to the
Conseil d’ Etat, the highest of administrative Courts. The Conseil had the right to fix the limits of its own power, it
could in effect, take out of the hands of a judicial Court, a case of which the Court was already seized.

Fourthly, a servant of the State was protected from the supervision or control of the ordinary law courts, in respect of
any act, howsoever, illegal, done by him while acting in bona fide obedience to, the orders of his superiors or in the
mere discharge of his official duties.5

Separation of Powers in Constitution of India

In India, separation of functions is followed and not of powers and hence, the principle is not abided in its rigidity. In
India, strict separation of powers is not followed as it is followed in the U.S. But a system of checks and balance has
been embedded so much so that the courts are competent to strike down the unconstitutional amendments made by the

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legislature. The constitution makers have also meticulously defined the functions of various organs of the state.
Legislative and executive, which acts the two facets of people’s will have all the powers including that of finance.

There exists clear division between the head of the state and the head of the government. The executive is president; the
legislature is Parliament (Lok Sabha and Rajya Sabha) and the judiciary contains Supreme Court, High Courts and
other lower courts. Similarly at the level of states, the Governor acts as executive and there exists legislative body at
each state.

Some of the articles in the Indian constitution which emphasizes the separation of powers are the following:

Article 50
Article 50 puts an obligation over the state to separate the judiciary from the executive. However, Article 50 falls under
the Directive Principles of State policy (DPSP) and hence is not enforceable.

Articles 121 and 211

The legislatures cannot discuss the conduct of a judge of the High Court or Supreme Court. They can do so only in
matters of impeachment.

Articles 122 and 212

The courts cannot inquire the validity of the proceedings of the legislatures.

Article 361
The President and Governors enjoy immunity from court proceedings.

Checks and balances

The doctrine of separation of powers is a part of the basic structure of the Indian Constitution even though it is not
specifically mentioned in it. Hence, no law and amendment can be passed violating it. The system of checks and
balances is essential for the proper functioning of three organs of the government. Different organs of the state impose
checks and balances on the other. The following examples illustrate the checks and balances:

Judiciary exercises judicial review over legislative and executive actions. Judiciary has the power to void laws passed
by the Parliament. Similarly, it can declare the unconstitutional executive actions as void.
Legislatures review the functioning of the executive.
Executive appoints the judges.
Legislative branch removes the judges. It can also alter the basis of the judgment while adhering to the constitutional
limitation.
Checks and balances acts in such a way that no organ of the state becomes too powerful. The constitution of India
makes sure that the discretionary power bestowed upon any organ of the state does not breach the principles of
democracy. For instance, the legislature can impeach judges but as per the condition i.e. two third majority.

Judicial Pronouncements
In Keshavanand Bharti case (1973), the Supreme Court held that the amending power of the Parliament is subject to the
basic features of the constitution. So, any amendment violating the basic features will be held unconstitutional. This
scheme cannot be altered by even resorting to Art.368 of the constitution.

In Ram Jawaya v. Punjab (1955) case, the Supreme Court held up the observation that the executive is derived from the
legislature and is dependent on it for its legitimacy. Cabinet ministers in India both executive and legislative functions.
Art. 74(1) gives the upper hand to the cabinet ministers over the executive by making their aid and advice mandatory
for the President, who is the formal head of the State.

In Indira Nehri Gandhi v. Raj Narain (1975) case, the Supreme Court held that adjudication of a dispute is a judicial
function and parliament cannot even under constitutional amending power is competent to exercise this function.

In Swaran Singh case (1998) the Supreme Court declared the Governor’s pardon of a convict unconstitutional.
In subsequent judgments, the Supreme Court upheld the rulings of the Keshavananda Bharti case regarding the non-
amend ability of the basic features of the Constitution and strict adherence to the doctrine of separation of powers.

Constituent assembly and the separation of powers

There were primarily two reasons for non insertion of separation of powers in the constitution:

It was felt that it was too late to make amends as the constitution was already drafted and bringing the amendment
inserting the principle of separation of powers would bring in change to the structure of the constitution.
Since, British system of parliamentary form of government was adopted, it was thought it would be better to avoid
adopting complete separation of powers as in the American system.

Independence of Judiciary and separation of powers

Independence of Judiciary guarantees fair and neutral judicial system without the interference or influence by the
executive and legislative branches of the government. The concept of independence of judiciary was derived from the
England. The Hampden’s case and Coke’s case helped to secure judicial independence.

In India, during pre-independence times, the criminal magistracy was placed under the direct control of the executive.
Executive control of judiciary will breach the rule of law and result may be that the rights of the citizens may be
compromised. Article 50 of the constitution puts an obligation over the state to separate the judiciary from the
executive. In India, independence of judiciary basically limited to delivering justice. Other things pertaining to the
judiciary like salary, allowances, privileges, jurisdiction, appointment and impeachment of jufges are left with
Parliament and the executive. Independence of judiciary has been made as a basic structure of the constitution. This
was observed in the S.K. Gupta v. President of India (1981) case.

Legislature Versus Judiciary

In India, there exists tug of war between the Judiciary and Legislature on certain issues. Judiciary has striked down
certain laws passed by the Legislature terming them ultra vires. The Legislature, for its part has objected to the concept
of Judicial Activism and sometimes frames fresh piece of legislation to circumvent the objection raised by the judiciary.
It is generally held that the concept of judicial activism outs the doctrine of separation of powers.

In many instances in the past, the courts have issued laws and policies through their judgments. Some of the prominent
examples are:

Vishakha case where the Supreme Court issued guidelines on sexual harassment.
In 2010, it directed the government to distribute food grains.
Recently, it also appointed a Special investigation Team (SIT) to replace the High Level Committee constituted by the
government for investigating the issue of black money deposits in Swiss Banks.
However, it is often alleged that the judiciary crosses its territory pertaining to the Legislature or executive and is
termed as judicial overreach or judicial adventurism.

At the same time, there are also instances of the legislature reversing the outcome of some of the judgments. For
instance, in the Commissioner of Customs vs. Sayed Ali in 2011 case, imposition of some duties retrospectively by the
Customs Amendment and Validation Bill, 2011 was challenged in the Supreme Court. The Supreme Court struck down
the levy of duties. In order to circumvent that judgment, the Parliament passed Customs Bill, 2011 and amended the
provisions to levy duties retrospectively even in those which was earlier struck down by the Supreme Court. Similarly,
Essential Commodities (Amendment) Ordinance, 2009 was passed by the Parliament to overrule the Supreme Courts
judgment regarding the purchase of sugar by the government from the mill.

As the doctrine of separation of powers is not codified in the constitution, there is a necessity that each pillar of the
State to evolve a healthy trend that respects the powers and responsibilities of other organs of the government.