DHARMASHASTRA NATIONAL LAW UNIVERSITY

Administrative Law

Role of Common law in the growth of Administrative Law

Submitted To: Submitted By:

Ms. Ruchira Chaturvedi Lav Vyas

(Assistant Professor of Law) BAL/052/18

ACKNOWLEDGMENT
I would like to express my special thanks of gratitude to our Vice Chancellor Mr. Balraj Singh
Chauhan as well as our subject teacher Ms. Ruchira Chaturvedi who gave me the golden
opportunity to do this wonderful project on the topic ‘Role of Common Law in the growth of
Administrative Law’ which helped me in doing a lot of research d i came to know about so many
new things. I am really thankful to them.

Secondly I would also like to thank my colleagues and partners in this project who helped in
finalizing his project within this frame.

Date: 11/10/2020 -Lav Vyas Signature

INDEX

1
Acknowledgment 1

INDEX 2

INTRODUCTION 3

FEATURES OF ADMINISTRATIVE LAW 4

DEVELOPMENT OF ADMINISTRATIVE LAW 6

1) DEVELOPMENT IN BRITAIN
2) DEVELOPMENT IN AUSTRALIA
3) DEVELOPMENT IN NEW ZEALAND
4) DEVELOPMENT IN INDIA

CONCLUSION 15

INTRODUCTION

2
Administrative law is the group of law that oversees the exercises of regulatory organizations of
government. Government organization activity can incorporate guideline making, arbitration, or
the requirement of a particular administrative plan. Regulatory law is viewed as a part of public
law.
Administrative law manages the dynamic of such authoritative units of government as courts,
sheets or commissions that are important for a public administrative plan in such zones as police
law, global exchange, producing, the climate, tax collection, broadcasting, movement and
transport. Administrative law extended significantly during the 20th century, as authoritative
bodies overall made greater government organizations to direct the social, financial and political
circles of human association.
Common law is an assortment of unwritten laws dependent on lawful points of reference set up
by the courts. Customary law impacts the dynamic cycle in strange situations where the result
can't be resolved dependent on existing rules or composed guidelines of law. The U.S. custom-
based law framework developed from a British convention that spread to North America during
the seventeenth and eighteenth century pioneer period. Precedent-based law is likewise rehearsed
in Australia, Canada, Hong Kong, India, New Zealand, and the United Kingdom.
Common law draws from standardized conclusions and understandings from legal specialists and
public juries. Like common law, the objective of custom-based law is to build up predictable
results by applying similar guidelines of understanding. In certain cases, point of reference relies
upon the made to order customs of individual locales. Subsequently, components of custom-
based law may contrast between locale.

Salient Features of Administrative Law in India

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When the British rule came to an end, and India gained independence on 15 August 1947,
administrative law was in an incipient state in the country. The reason was that the British
government functioned more or less as a ‘police’ state, its main function being to maintain law
and order within the country, defend it against external aggression, and to collect a few taxes for
the purpose of meeting the expenses of the government.

The ruling alien power was primarily interested in strengthening its own domination; the
administrative machinery was used mainly with that objective in view and, consequently, the
civil service was characterized as the ‘steel frame’. There was not much development work done
in the country. The Constitution lays emphasis on the state working for the amelioration of the
socio-economic conditions of the people. The Constitution has a chapter on directive principles
of state policy which lays down certain guidelines for the governments in India to follow and to
observe in the governance of the country. The Constitution itself contains a number of provisions
which have a bearing on the development and content of administrative law.

The government has been given powers to take administrative action, powers to legislate and
adjudicate. Innumerable administrative bodies, quasi-judicial bodies, tribunals, regulatory bodies
and public sector enterprises have been set up in the country. Thus, proliferation of the
administrative process has taken place on a vast scale as a consequence of the exercise of these
powers1 .

The conferment of vast powers on the administration creates the spectre of their misuse and
abuse which may adversely affect the interests of an individual. The adage that ‘power corrupts
and absolute power corrupts absolutely’ means that power should be properly structured and
controlled, as uncontrolled and vagrant power can always be misused by the person wielding
such power. This prospect, therefore, makes it essential that it be ensured that those who wield
power exercise the same according to law.
Accordingly, responsibility has fallen on the courts to evolve and enunciate and its agencies,
from case to case, the principles for regulating the exercise of power by the government and
supervise the exercise of power with a view to ensure that the norms laid down by it are

1
Registrar of Cooperative Societies v. K Kunjambu. AIR 1980 SC 350.

4
scrupulously followed, in various situations, over a period of time. Thus, the institution of
judicial review of administrative action comes into vogue and becomes the most significant
segment of the present day functioning of the courts.

Development of Administrative Law

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The main reason for development of administrative law has been the expansion of the
administrative apparatus, functions and powers of the government. This has been the effect of
demise of the laissez faire era, which was the prevailing dogma in the 9th century 2 and the rise of
the era of a social welfare state in the middle of the 20th century 3 . Under the impetus of the
dogma of the social welfare state, the bureaucracy acquired more and more powers. It assumed
many functions which had previously been left to private enterprise. The state, thus, became
omnipotent4. Consequently, the state has become omnipresent and omniscient and the
bureaucracy has assumed large powers to affect the rights, liberties and property of the
individuals. Expansion in administrative power creates the spectacle of misuse and abuse of
power. This means that regulation and control of administrative power becomes a necessity and
thus, administrative law has grown.
This branch of law really concerns itself with the control of administrative power. In reality,
administrative law has two facts:
(1) to validate and legitimise conferment and exercise of due administrative powers, and
(2) to outlaw, misuse and abuse power and to regulate the exercise of legitimate power;
Both functions are inter-related. When extensive powers are conferred on the administration, it
becomes necessary to evolve a suitable control mechanism so as to protect individuals from
unwarranted and undue exercise of powers by the administration. While, on the one hand,
administrative law supports conferment of due and legitimate powers on the administration, and
their proper exercise, it also, on the other hand, voids illegitimate and undue exercise of power.
Administrative law is, thus, an instrument of control over the exercise of bureaucratic powers.
Administrative law seeks to ensure that the government acts according to law, based on proper
legal principles and according to rules of reason and justice and that an adequate control
mechanism exists to check administrative abuses and provide adequate relief in case a person is
adversely affected by misuse of power. There is also the question of the phenomenon of
bureaucratic corruption. In the absence of proper guiding norms to exercise discretionary powers,
vested in administrative officers, uncontrolled discretionary powers have inherent seeds of
corruption, for it may be difficult to assess whether a particular administrative decision is bona

2
Denning,’Freedom under the law’(1949) p 69.
3
Dicey,’Law and Public Opinion in England’ (1962) p 120-210.
4
Atiyah,’The Rise and Fall of Freedom of Contracts’ (1979).

6
fide and based on merits and proper considerations or is mala fide and motivated by some
improper and corrupt consideration.

Developments in Britain

Dicey thus reluctantly recognised the beginning of Administrative Law in Britain under the force
of circumstances. However, since then, things have changed rather demonstrably.
Alarmed by the large scale assumption of power by the Executive, LORD HEWART in 1929 in
his book, The New Despotism , made a scathing attack on the expansion of administrative
powers of legislation and adjudication, and warned that vast opportunities had come into
existence for misuse of powers by officials. He claimed that bureaucracy had become the true
rulers of the country.
As a result of this criticism, the Committee on Ministers’ Powers (also known as the
Donoughmore Committee) was appointed in 1929 "to consider the powers exercised by or under
the direction of (or by persons or bodies appointed specially by) Ministers of the Crown by way
of: (a) delegated legislation, and (b) judicial or quasi-judicial decision, and to report what
safeguards are desirable or necessary to secure the constitutional principles of the sovereignty of
Parliament and the supremacy of the Law."
In the words of Carr, the questions posed for the committee were whether Britain had gone off
the Dicey standard and, if so, what was the quickest way back5.
The committee submitted its report in 1932. It found nothing fundamentally wrong in the
developments which were taking place. It accepted, however, that there were opportunities for
misuse of powers by the Administration and, therefore, made a number of suggestions to
improve the control and supervisory mechanism. The report called attention to three main defects
in the existing system of Administrative Law, viz .,
1. the inadequate provision made for publication and control of subordinate legislation;
2. the lacuna in the law caused by the inability of a subject to sue the Crown in tort; and

5
Cecil Carr, Concerning English Administrative Law (1941).

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 3. the extent to which the control and supervision of administrative decisions were passing
out of the hands of the courts and were being entrusted by Parliament to specialist
tribunals and enquiries.
As a result of these findings, the House of Commons came to have a Committee on Statutory
Instruments in 1944. In 1946, the Statutory Instruments Act was enacted to tidy up, to some
extent, matters relating to subordinate legislation. This Act has been characterised as purporting
to enact a "comprehensive procedural code for the making of subordinate legislation." It
formulates rules for publication of statutory instruments and also regulates the laying procedure
before Parliament. In 1947, Parliament enacted the Crown Proceedings Act to liberalise the law
relating to civil proceedings against the Crown. The report of the Donoughmore Committee
represents the first attempt made in Britain at systematisation of Administrative Law.

Administrative Law has thus grown into an identifiable branch of law in Britain. Once
characterised as a "Continental jargon", it is now accepted that Britain has a "developed system
of Administrative Law"6. Apart from the developments mentioned above, the courts have played
a very dynamic, creative and constructive role in the development of Administrative Law in
Britain, especially from 1963 onwards. Some of the landmark judicial pronouncements will be
noted in the following pages. However, much still remains to be done in this area. To channelise
ideas for further reform of the British Administrative Law, a joint committee of All Souls
College and Justice has released a discussion paper inviting comments on a number of proposals
for reform of Administrative Law. The Parliamentary reform agenda broadened quickly in 1980
to incorporate additional premises for Government accountability to the public disclosure of
Government documents and the control of Government information handling. This broader
theme was implemented by the enactment of Freedom of Information Act, 1982 and the Privacy
Act, 1988. In the 1990s there has been a different reform emphasis but with similar objectives,
best reflected to the development by Government agencies of customer service charter and
complaint procedures7.

6
Breen v. A.E.U (1971) 1 All ER 1148, 1153.
7
John McMillan ‘Parliament and Administrative Law’.

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 Development in Australia

The structure for law and Government in Australia is set apart by the presence of an exhaustive
arrangement of regulatory law that has to a great extent created throughout the most recent thirty
years. The key components of the framework are legal audit by the courts, merit survey by
authoritative councils, examination and managerial activity by the Ombudsman and basic
liberties offices, and the conferral of data and security rights under opportunity of data and
protection enactment.

The starting points of regulatory law are found firmly in the customary law, enhanced by s. 75(v)
of the Constitution, which presents a unique purview upon the High Court to allow three
authoritative law cures against the Commonwealth. Development of regulatory law has been a
topic of the current age. The organizations that exemplify the Commonwealth government's
pledge to managerial law, the ombudsman, the regulatory offers council, the bureaucratic court
and various other survey bodies were set up by Parliament generally during the 1970s during a
period of worry about improvement of enormous Government in Australia and its effect on the
residents. The Administrative Appeal Tribunals Act in 1975 has set up Administrative Appeals
Tribunals, to audit authoritative choices on merits. Making of the court is extremely
revolutionary in origination. It is a sort of super council hearing the offers from a wide
assortment of regulatory choices. An Ombudsman has been set up by the Ombudsman Act, 1976.
By Administrative Decision (Judicial Review) Act, 1977, the force was presented of legal audit
upon the government court which itself was set up in 1976 by the bureaucratic court of Australia.
In 1976 a generally useful cure "the request for audit" was presented. A solitary liberal trial of
standing has been presented in particular that the candidate be bothered. Reason for legal survey
have been recorded in the Act. Commitment to give reasons has been forced on the leaders.

An Administrative Review Council has also been set up. It is the counterpart of the British
Council on Tribunals but with much wider terms of reference. The important function of the
Council is to recommend to the minister regarding improving procedures for the exercise of
administrative discretions so as to ensure just and equitable exercise of the discretion. The

9
Council is thus a kind of standing body to keep a constant review over administrative procedure
in Australia.

Developments in New Zealand

Various advances have been taken to change Administrative Law in New Zealand, a nation with
the custom-based law framework. Various procedural and institutional enhancements have been
made. New Zealand is the primary custom-based law nation to have embraced the Scandinavian
arrangement of ombudsman as right on time as 1962 and this has had enormous effect in other
precedent-based law nations in making the establishment worthy. Another huge advancement has
been to organize a regulatory division in the Supreme Court to manage the issues of
Administrative Law. It is trusted that the appointed authorities doled out to this Division will in
course of time develop into specialists in Administrative Law. On the off chance that issues
relating to Administrative Law are managed by similar appointed authorities again and again,
they will build up a skill and specialization to successfully manage issues of Administrative Law.

New Zealand selected this development regardless of the way that it had been dismissed by the
Franks Committee in Britain. This Division now hears appeals from a large number of tribunals
in law, fact and discretion and is able to bring "greater consistency, coherence and authority" in
administrative decisions8. New Zealand has likewise embraced an extra cure styled as
"application for legal audit". This is notwithstanding the cures by method of privilege writs,
statement and order. On such an application, the candidate can get any help from the court to
which he might be entitled in any procedure for a writ, directive or revelation or any mix of
them. The council framework has been improved; guideline causing forces and methodology to
have additionally been improved. The standard of law additionally shapes a huge aspect of the
New Zealand Constitution. The standards of rule of law are not effortlessly characterized
however envelop thoughts, for example, power practiced by Parliamentarians and authorities
depend on lawful position, the law ought to have shields against maltreatment of wide optional
forces, unreasonable segregation ought not be permitted by the law, an individual ought not be

8
Paterson, First report of the Public and Administrative Law reform Committee (1968).

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denied of his/her freedom, status or other generous interests without the chance of reasonable
hearing under the watchful eye of a fair court or council.
Development in India

It has been long held that the function of a judge is merely declaratory and not creative and that
the role of a judge is only to propound the law as it exists but not to make it 9. In the USA, the
courts exercise the power of judicial review of legislation as the USA has a written Constitution
unlike Britain10. In India, there have been a few conservative judges who have adopted the
traditionalist approach and have expressed reservation regarding the activist judicial approach 11.
However, then many more judges have chosen the activist approach and this becomes very clear
from a perusal a case-law pertaining to administrative law especially after the year 1977 12. The
outstanding fact remains that in India, hitherto, by and large, much of the development in
administrative law can be ascribed to the activist role played by the Supreme Court judges. This
approach has become all the more predominant since the Maneka Gandhi case decided by the
Supreme Court in 197713. A judge has to do justice in the context of a concrete factual situation
before him. If there is no readymade principle of law applicable to the factual situation available,
the judge has to invent a principle and decide the case. This is the law-making function of the
judge. Two examples may be cited to show the extreme reluctance on the part of Parliament to
do anything in the matter. Till today the Parliament has not been able to enact a law defining the
ambit of tortious liability of the government for the torts committed by its servants. From 1965,
in Kasturi Lal14, the Supreme Court had pointed out that the law regarding the government’s
tortious liability was in a very unsatisfactory condition and that a law similar to the Consumer
Protection Act 1947 (UK) be enacted to improve matters 15. Over the last thirty years, the
Supreme Court, making use of its powers under of the Constitution of India has itself developed
norms for compensating people who may have suffered from tortious actions of government
employees. In fact, the norms developed by the courts in this area are much more liberal than
what the Parliament would have ever enacted. Another extreme example of legislative
9
Nothman v. Council (1979) 1 All ER 1943.
10
Jaffe, ‘English and American Judges’ (1969)p 2
11
Jit Ram Shiv Kumar v. State of Haryana AIR 1980 SC 1285.
12
Gujarat Steel Tubes Ltd. v Gujaraj Steel Tubes Mazdoor Sabha AIR 1980 SC 1896.
13
Ib.
14
Kasturi Lal Ralia Ram Jain v State of Uttar Pradesh AIR 1965 SC 1039.
15
Wade, ‘Administrative Law’(1988)pp 808-820.

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remissness is the non-enactment of the Lokpal (Ombudsman) Bill. Such examples of lack of
initiative on the part of the Parliament can be multiplied. A creditable step taken so far by
Parliament is the establishment of a tribunal system in the country. Legislation confers vast
powers on the administration but, without laying down any procedural or substantive safeguards
or standards to control the exercise of administrative power. The fact that judicial review is
constitutionally guaranteed, as stated above, gives the necessary strength, confidence and
leverage to the judges to develop the principles of administrative law. The written Constitution
of India and the fundamental rights therein help the judges to relate many common law
principles of administrative law to these Constitutional provisions and, thus, put them on a very
firm pedestal. It is the function of the courts to draw a balance between the individual and
administrative powers so as to ensure administrative fair play. The year 1977 proved to be a
watershed in the history of the Indian administrative law and the administration acted in a
despotic manner. The Supreme Court found itself unable to control, and enter into fisticuffs with
the administration on behalf of the people. It is no exaggeration to say that the period 1975-1977
is the blackest period in the history of the Supreme Court 16. However, when the emergency was
lifted in 1977, and the Indira Gandhi government which had imposed the emergency was
convincingly defeated at the polls, the Supreme Court embarked on an activist role with the first
post-emergency case of Maneka Gandhi.

A close scrutiny of the evolution of case-law in India shows that, as a result of judicial dynamism
and activism, a number of liberal and progressive trends have changed in administrative law.
Some of the main trends are mentioned below:
(1) expansion of the right of hearing to many fact situations, and thus, the class of interests
entitled to hearing before agency infringement of these interests has been constantly expanding;
(2) expansion of the scope and depth of judicial control over discretionary powers of the
administration; (3) expansion of the scope and ambit of judicial review of administrative action
which includes: (a) liberalisation of the principle of locus standi to claim judicial review so as to
enlarge the class of interests entitled to claim judicial review of administrative action; (b)
bringing public authorities under the scope of judicial review and thus, placing them under the
discipline of administrative law; (c) expansion of the scope of the writ system; (d) promotion of

16
 Jain, ‘Indian Constitutional Law’.

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the institution of public interest litigation; (e) restricting the scope of privative clauses in statutes;
(4) extension of the scope of redressal mechanism to give redress to persons affected by adverse
administrative action; this includes: (a) moulding of relief to suit the specific situation rather than
giving relief in the traditional form; (b) liberalising the concept of liability for tortious actions of
the government agencies. (5) introducing the doctrines of promissory estoppel and legitimate
expectation in the Indian administrative law. (6) regulating government power to confer benefits
on people as well as to deprive them of the same, increasing judicial surveillance over award of
contracts by the state. (7) Promoting the ideal of open government. The Indian administrative
law is still in an evolutionary process and the courts are constantly expanding and refining the
same so as to keep effective control over the expanding power of the administration. As there is
no prospect that Parliament will take much interest in this area in the immediate future, it will
remain the responsibility of the activist Indian judges to continue to develop the norms of
administrative law which may be appropriate for a vibrant democratic system following the
philosophy of rule of law.

CONCLUSION

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It is well to recall that majority rules system is continued not just by presenting enormous forces
on the Administration yet additionally by contriving legitimate balanced governance subject to
which the regulatory force is to be worked out. It will turn out to be just an exterior majority
rules system if rights and freedoms of individuals are encroached by the Administration without
any potential repercussions without managing them any change. Giving enormous forces on the
Administration might be legitimized just if control-system is improved and due regulatory
methods are formulated. Such an ideal can be accomplished by reinforcing the cures and reliefs
against the Administration which an individual may summon when he is unfavorably influenced
by a specific regulatory activity. This is a steady mission and improving the redressal component
against the managerial apparatus is a unique cycle. Without an all around created arrangement of
Administrative Law, popular government will lose a lot of its actual substance.

Starting here of view, there is by and by an age in the precedent-based law world in the zone of
Administrative Law and new patterns are getting noticeable. Numerous precedent-based law
nations have been locked in for quite a while in the activity of improving and changing their own
arrangement of Administrative Law which is in a condition of motion at present in the precedent-
based law world. Official bodies have been delegated to read and make proposals for
development of Administrative Law. A portion of the recommendations made by these bodies
have been actualized and others are currently being executed. Standing bodies have been made to
keep authoritative methodology continually under audit and make proposals to improve them.
Such an exertion is inadequate in India. In India just the courts go about as a control instrument
versus the Administration. The courts have assumed an innovative part somewhat here. The
courts have made a few milestone proclamations showing a law-inventive part of a high request.
In any case, legal cycle has its own constraints. The courts try to do equity from case to case.
Along these lines, the accentuation is on choosing singular cases as opposed to on the formation
of general lawful standards. In accommodating general society and private rights overall the
courts take a realistic perspective on the issue instead of a hypothetical view. As KRISHNA

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IYER, J. emphasized in Gujarat Steel17 ,"law is not dogmatics but pragmatics", or
as BHAGWATI , J. said in Maneka Gandhi18 that law is not logic but experience. Judicial
creativity therefore may lead to some outstanding judicial pronouncements in individual cases
but emergence of a systematic, coherent body of legal principles is difficult through judicial
process. Legislation may have to be undertaken to achieve such a result. Therefore, it seems time
has come when in India also an over-all review of the Administrative Law ought to be
undertaken.

17
Gujarat Steel Tubes v. Its Mazdoor Sabha, AIR 1980 SC 1896.
18
Maneka Gandhi v. Union of India, AIR 1978 SC 597.

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