Tribhuvan University

Faculty of Law
National Law College
First Term Examination
2075

B.A.LL.B (Yearly System)/4th Year/LAW Full Marks: 80

Administrative Law (Law 551) Pass Marks: 40
Time: 3 hrs
Candidates are required to give their answers in their own words as far as practicable. The figures in the
margin indicate full marks.

Answer following question.

Group: A (1x20=20)
1. What is administrative law and is how can it be differentiated with constitutional law?
a. Administrative Law

o Political and organizational theory

o Administrative law as it has historically been understood presupposes that there is
something called administration. The administrator and/or the administrative agency or
organization exist as a bounded reality. Administrative law prescribes behaviour within
administrative organizations; more importantly, it delineates the relationships between
those inside an administration and those outside it. Outside and administration lie both
statute-maker whose laws and regulations administrators owe a legal duty to faithfully
implement and the citizens to whom administrators owe legally correct procedural and
substantive action. More generally, the political and organization theory that inform our
administrative law have traditionally viewed public administration as a set of bounded
organizations within which decisions are made collectively. On this view, these organs of
public administration are coordinated with one another, subordinated to political
authority and obligated to respect the outside individual and interests whom they
regulate and serve. – Martin Shapiro
o Laissez faire policy
o Plan and welfare state
o Providing economic benefits
o Industry trade and commerce
o Growth of social and security system
o Supervision of public and private utilities
o Development of labour relationship
o Government involves in social action before birth to after death functions.
o The state is continuously managed by a vast bodies of professional experts servants who
contribute lag their technical assistance to the foundation by law and to whom powers
have been given. Administrative action as action based on decision on policy and law is
the instrument to enforce the policy. The Constitution, Parliamentary Act, and
 Delegated Legislation essentially concern administrative law with whose public bodies
which are established law and carry it out continuously manages the state affairs.
o Administrative Tribunals
o Individual justice
o Fairness
o Administrative Adjudication
o Administrative process
o Adjudication and conciliation/cordination
o Investigation
o Inquiry,
o Consultation
o Public participation
o Inspection
o Rule making
o Properly exercised the new powers of the Executive lead to the welfare state; but
abused they lead to the totalitarian state. (Lord Denning)
o People's want not only legal decision but also effective and efficient administration.
o Administrative law is the regulatory law of public administration. It regulated how public
administration agencies do what they do and why as well as their authority to do it.
(David H. Rosenbloom)
o Administrative law has only an indirect and ambivalent relation to the quality of the
programme outcomes the primary focus is the procedure (how) officials made their
decision rather than (what) they decide. (Christofer F. Edley Jr.)
o Administrative law provides many of the safeguard which prevent government
becoming an intolerable evil. (Neil Hawke and Neil Parpworth)
o Supervisory jurisdiction
o Courts of judicial review require to be satisfied of proper standard of legality, rationality
and fairness in public administration. (Stephen Sedley)
o The Primary purpose of administrative law, therefore is to keep the power of
government within their legal bounds, so as to protect the citizen against their abuse,
The powerful engines of authority must be prevent form running amok. (Wade and
Forsyth)
o Fire is good servant and bad master.
o Administrative law is the law relating to the administration. It determines the
organization, powers and duties of the administrative authorities. (Ivor Jenning)
o Albert Venn Dicey
An administrative law is that portion of a national's legal system which determines the
legal status and liabilities of all state officials, which defines the rights and liabilities of
private individual in their dealing with public officials, and which specifies the procedure
by which those rights and liabilities are enforced.
o Function
o Power
o Procedure
 o French droit administratif
o Jack F Garner
The administrative law is the law relating public administration... the subject of
administrative law includes the study of the (i) institutions and administrative processes
(ii) the principle sources of governmental legal power (iii) the mechanisms by which
citizen grievances in respect of government actions may be examined and where
appropriate redress be afforded (iv) the public operations and the administration of
local government and the general legal principles applying to local authorities.
o J.A. G. Griffith and H Street
o Nature of power
o Operation
o Control
o What short of power does the administration exercise?
o What are the limits of those powers?
o What are the ways in which the administration is kept within those limits?
o Henry William Rawsan Wade
Administrative law is the law relating to the control of government power... the body of
general principle which govern the exercise of power and duties by public authorities.
o MP Jain
Administrative law deals with the structure, power and function of organs of
administration; the limits of their power and, the methods and procedures followed by
them in exercising their powers and functions, the method by which their powers are
controlled including the legal remedies available to a person against them when his right
are infringed by their operation.
o Basic Security
o Equity and equality in the matter of basic needs
o Efficiency and accountability in Administration

b. Difference between administrative law and constitutional law

 Constitution is body of rules and arrangements which are concerned with affairs of
the government of the country.
 Written and unwritten, rigid and flexible, monarchal and federal, unitary and
federal, evolved or built
 Constitution is the fundamental law of the land.
 Constitutions are primarily about political authority and power- location,
conferment, distribution, exercise and limitation of authority of authority and power
among the organs of state. They are concerned with matters of procedures as well
as substance.
 It is logically impossible to distinguish administrative law from constitutional law and
all attempts to do so are artificial. (Ridge)
 Continental Legal System
 Constitutional law and Droit Administratif.
  Administrative law starts in constitutional law and ends with all the minute
regulations which are laid down by means of delegated legislation. (Jan-Erik Lane)

Group: B - Attempt any THREE questions. (3x10=30)

2. What do you mean by good governance?
 Public Administration
 New Public Administration
 Public Management
 New Public Management
 Good Governance
 New Public Service
 Public servants not only deliver goods and services to the public but also deliver
democracy in their day to day to life.
 Political responsibility of the government to parliament, legal responsibility of ministers
and officials for their acts – legal responsibility is enforced primarily through the courts.
(Bradley and Ewing)
 Government must conducted according to the law.
 The judicial function is complaint or grievance handling rather than complaint
avoidance.
 (Cane)
 Ombudsmen are primarily concerned with correcting the effects of maladministration.
 The judge is over your shoulder be careful. (Jones Thompson)
 To ensure that government bodies do not overstep the proper bounds of their powers
and to protect the rights of individual and the interest of the group and the public
against undue encroachment by government.
 Six principle of Public Service
1. Standard service
2. Information and Openness
3. Choice and Consultation
4. Courtesy and helpfulness
5. Putting things in right place
6. Value of money

3. Write about separation of power and check and balance enshrined in Constitution of Nepal 2072
BS.
 Power tends to corrupt and absolute power corrupts absolutely. Great men are those
who are almost always bad man. (Lord Aton)
 The accumulation of power, legislative, executive and judiciary, in the same hand,
whether of one, a few or many and whether hereditary self-appointed or elective may
justly be pronounced the very definition of tyranny. (James Madison et al)
 The powers of three great branches of the national government be largely separated
from one another. (Laurence H Tribe)
 The doctrine of the separation of powers is not a legal principle, but a political theory.
(Colin R. Munro)
 Each branch of government is assigned a particular task: Legislature makes the law,
executive branch administers the law and the judicial system enforces and interprets
the law. The separation of power concept operates in tandem with the limited
government powers. Separation of powers doctrine restrains one branch form usurping
the power of the others; the limitation of government from overpowering the rights of
the states and restricts the intrusion of the government into private lives. (Berkley and
Rouse)
 The functions assigned to various power holders are subject to reciprocal control. (SN
Ray)
 There are three elements in all constitutions, first the deliberative, discussion about
everything of national importance, second the executive, the whole complex of official
and authorities, the methods by which they are selected, and third the judicial system.
(Aristotle)
 I am the state, the state is I am. (Louis XIV)
 The theory of the separation of power was first fully formulated by Montesquieu.
(Herman Finer)
 Three power should be so segregated that never touch at any point.
 When the legislative and executive powers are united in the same person or in the same
body of magistrates, there can be no liberty, because apprehensions may arise lest the
same monarch senate should enact tyrannical law, to execute them in the tyrannical
manner. Again there is no liberty of the subject would be exposed to arbitrary control;
for the judge would be then the legislator were it jointed to the executive power, the
judge might behave with violence and oppression. All would be lost if the same man or
the same body of principal men, either of nobles or of the people exercised these three
powers; that of making the laws, that of executing public resolutions, and that of
judging the crimes of disputes of individuals. (Montesquieu – The Spirit of the Laws)
 In all tyrannical Government, the right of making and enforcing the laws is vested in one
and the same man, or the same together there can be no liberty. (Paul Jackson and
Patricia Leopold)
 That the same person should not form part of more than one of the three organs of
government, for example that minister should not sit in parliament. (Wade and Bradley)
 That one organ of government should not control or interfere with the work of another,
example that the judiciary should be independent of the executive, and)
 That one organ of government should not exercise the function of another, for example
that minister should not have legislative power.
 According to above statement (Wade and Bradley), we can say that the separation of
power means the three branches of government are institutional autonomous,
functional non-intervention and personal non alliance between and among each other.
As per the above description a pure form of the separation of powers doctrines has
some features: (i) the functions of the government are to be divided into the legislative,
the executive, and the adjudicative; (ii) different functions are to be vested in separate
and appropriate institutions; (iii)the member of one institution should not be member
of any other institution; and (iv) the function of one institution should not be encroach
on the function of other.
  The phrase Separation of Power is ... one of the most confusing in the vocabulary of
political and constitutional thought. (Geoffrey Marshall)
 The modern constitution is less conformable to any strong version of the separation of
power theory, for nowadays 'rule are made by civil servant and by judge as well as by
legislature; rule are applied by the courts as well as by the "executive" and the
judgement are made by civil servant and ministers as well as judges. (Colin Turpin)
 Exercise of Separation of power and Check and Balance

 Constitution of the United States – 1787

Article 1- All legislative powers here in granted shall be vested in a congress.
Article 2- The executive power shall be vested in a president of the United States.
Article 3 – Judicial powers shall be vested in one Supreme Court and in such inferior
courts as the congress many from time to time ordain and establish.

Institutions and Functions of Government

Functions of Legislature can do: Executive can do: Judiciary can do:
Government Legislative to make laws veto legislation review legis Acts
recommend legis
Executive confirm to enforce law review executive
executive Acts
appointments Issue injunctions,
(Senate) mandamus and
override restriction
Executive
Veto
Judicial impeach grant pardons to interpret laws
create or nominates judges
eliminate
court
(Jeneth Janda Feffrey M Berry and Jerry Goldamnt

UK
 S A De Smith and Rodney Brazier
No rigid separation, whatever in theory but in practice complete separation of power
does not exist and it would not workable. Government is not machine. It is living thing.
All the organs of government have common tasks and purpose so it needs their
coordination and co-operation to meet ultimate goals of the government. Even in the
American Constitution which is renowned as separation of power theory based
constitution is also mingled with other powers. In many countries subscribing to
versions of the separation of powers doctrine rule making powers have been vested in
the Executive because it is manifestly impracticable to repose such power exclusively in
legislature.

 Ivor Jennings
 In the parliamentary system of government like a Westminsterial model there is no ridid
separation of power between the executive and legislature. According to Bogehot
(1867) there is buckle-line between executive and the legislature. The member of the
parliament is also member of executive. The Prime Minister is leader of both the
executive and the Parliament. The executive and the legislature are totally dependable
for its continuity and existence. The executive has duty to submit its final policy and
program to the parliament for its legislative approval, and central government is run as
per the parliamentary prescription.

Check and Balance

 The balance is consequence of checking. It needs no other effort to balance the organs
than the act of checking. Therefore, check is action and balance is the consequence of
the act of checking. When one organ checks to another the balance strikes per se.
(Madhav Kumar Basnet)
 The modern meaning of the principle of separation of power is checks and balances
among the various branches of the government. (Aharon Barak)
 The separation of powers means reciprocal check and balance among the various
branches not walls among the branches, but bridges that balance and control. (Barak)

 Merits and demerits of the Theory of separation of powers

Merits
Substantive democracy is based on the separation of powers. (Barak)
It creates greater government efficiency.
To assure that statutory law is made in the common interest
To assure that the law is impartially administered and that all administrators are under
the law.
To allow the people's representatives to call executive to account for the abuse of their
power.
To establish a balance of governmental powers
To specialize government functions.
To avoid a concentration of too much power and which could lead to dictatorship.
The separation of powers is intended to guarantee effective administration, to ensure
the legality of administrative action. (Barak)
The doctrine of the separation of power was adopted convention in 1787 not to
promote efficiency but to preclude the exercise of arbitrary power. The purpose was not
to avoid friction, by means of the inevitable friction incident to the distribution of
governmental powers among these three department, to save the people from the
autocracy. (Myres V. United States)

The separation of power is not in essence concerned with the allocation of functions as
such. Tis primary purpose is the prevention of the arbitrary government or tyranny
which may arise from the concentration power. This point is perhaps most clearly
appreciated if we consider what has become one of the most complex areas for
 separation of power analysis: the organization, and control of administrative authorities
and agencies. (E Barendt)

 Demerits of separation of power

If it divided executive, legislative and judicial power absolutely without check and
balance, it may raise institutional tyranny.

The Separation of power theory does not allow to do own's function by others. This
creates complexity to perform day to day work. Ultimately, it suffers the people.

The separation of powers theory is not purely apply in parliamentary system legislative
an executive have reciprocal relationship functionally and personally as well.

Check and balances subsystems must be developed and followed to maintain the
separation of powers theory.

Check and balance to each other there would be institutional friction for getting powers.
If it strictly follows the government, particularly administrative branch, should not be
able to work and the government would be deadlock rather than dynamic.

When the very meaning of separation of power is a source of dispute among the
different branches, the tension among them grows.

Separation of powers not only provides each branch with somewhat different authority
over public authority over public administration but may also frustrate coordination
among them. Basis political since tells us that chief executive legislature and courts are
responsive to different constituencies, pressures and constraints. All three branches
have legitimate interest in public administration. However, they often differ with regard
to what they think agencies hsould do and how they ought to do it. (David H
Rosenbloom and Robert S Sravchuck)

The doctrine of separation of powers was adopted by the convention in 1787, not to
promote efficiency but to preclude the exercise of arbitrary power. The purpose was not
to avoid friction but by means of the inevitable friction incident to the distribution of
government powers among these three department, to save the people from autocracy.
(Myers v. United States)

The separation of powers is not in essence concerned with the allocation of function as
such. Its primary purpose is the prevention of the arbitrary government, or tyranny
which may arise from the concentration of power. This is perhaps most clearly
appreciated if we consider what has become one of the most complex areas for
separation of powers analysis, the organization and control of administrative authorities
and agencies. (Eric M Barendt)
 Public administrators make rules (legislation), implement these rules (an executive
function) and adjudicate questions concerning their application and execution (a judicial
function). The collapsing of the separation of powers has been well recognized. (David
H. Rosenbloom)

The doctrine of the separation of power has in modern times, been the most significant,
both intellectually and in terms of its influence upon institutional structures. The
defenders of liberty against arbitrary government stressed the division of power, and
the limitation upon the power imposed by the constitution or by higher law.. that it
emerged as coherent theory of government, explicitly set out and urged as grand secret
of liberty and good government. (JMC Vile)

4. What is rule of law? Express your opinion on its implementation in Nepal.

 The ancient philosophical ideal of the rule of law can be traced to Aristotle's
government of laws not men and has been explored by generation of political
philosophers. It provides the basis for the idea of limited government and
constitutionalism (Government limited by law and by constitution or constitutional
principles. (Carol Harlow and Richard Rawlings)

 It is the concept of bounded and billeted government.

 Rule of law
 Civil Liberty
 Supremacy of Law
 The Rule of law concerns that of the government to the law.

 That the concept of 'Rule of law' is usually intended to imply: i) that the powers
exercised by politician and officials must have a legitimate foundation; they must be
based on authority conferred by law; and ii) that the law should confirm to certain
minimum standards of justice, both substantive and procedural. (Stanley Alexander de
Smith and Rodney Brazier)

 Where the law confers wide discretionary powers there should be adequate safeguards
against their abuse; a person ought not to be deprived of his liberty, status or any other
substantial interest unless he is given the opportunity of a fair hearing before an
impartial tribunal. (Stanley Alexander de Smith and Rodney Brazier)

 Everything must be done according to law (HWR Wade and CF Forsyth)

 The function of government must have a basis in law. (Brian Thompson)

 The sovereignty of supremacy of law over man (Hilaire Barnett)

  People should obey the law and be ruled by it.

 Legally established government is easy to control because law are made by men and
women. (Harlow and Rawlings)

 The rule of law means guaranteeing fundamental values of morality, justice, and human
rights with a proper balance between these and other needs of society. (Aharon Barak)

 The rule of law is both legal rule and political ideal or principle of government
comprising values that should be reflected in the legal system and should be respected
by those concerned in the making development, interpretation and enforcement of law.

 Doctrine of Rule of Law

 Law should be prospective.

 Law should be clear
 The independence of judiciary must be guaranteed.

Joseph Raz
1. Law should be prospective, open and clear.
2. Law should be relatively stable.
3. The making particular laws (particular legal order) should be guided by open, stable,
clear and general rules.
4. The independence of the judiciary must be guaranteed.
5. The principles of natural justice must be observed.
6. The courts should have judicial review powers over the implementation of the other
principles.
7. The court should be easily accessible.
8. The discretion of the crime preventing agencies should not be allowed to pervert law.

Evolution
 The rule of law is preferable to that of any individual. (Aristotle)
 The kind and other rulers were subject of law (Bracton)
 The world was governed by law. Human or divine, the king was himself ought not be
subject to man but subject to god and to the law because the makes the king. (Allen)
 The law is highest inheritance which the king has for by the law he and his all subject are
ruled and if there was no law there would be no king and no inheritance. (Harlow and
Rawlings)
 There could be no taxation without the consent of parliament.

Dicey's Doctrine of the Rule of Law

1. Absence of arbitrary power on the part of government.
2. Equality before the law.
3. Individual liberty
  Absence of arbitrary power on the part of government.
It means in the first place absolute supremacy or predominance of regular law as opposed
to the influence of arbitrary power and excludes the existence or arbitrariness of
prerogative or even of wide discretionary authority on the part of the government.
Englishmen are rule by the law and by the law alone; a man may with us be punished for
breach of law, he can be punished for nothing else. (AV Dicey)
 Equality before the law.
Equality before law or the equal subjection of all classes to the ordinary law of the land
administered by the ordinary law courts, the rule of law in this sense excludes the idea of
any exemption of official or others from the duty of obedience to the law which governs
other citizens or from the jurisdiction of the ordinary tribunal.
Fundamental rights cannot be overridden by general or ambiguous words.
Poraz v. Mayor of Tel Aviv-jaffa
Equality is a fundamental value of every democratic society. The individual integrates into
the overall fabric and plays his part in the building of society, in the knowledge that others
too are doing the same. The need to ensure equality is natural to a person. It is based on
consideration of justice and fairness. Whoever asks for recognition of his rights most
recognize the rights of other to ask for similar recognition? The need to uphold equality is
essential for society and the social consensus on which it is build. Equality protects the
government from arbitrariness. Indeed there is no force more destructive in society than the
feeling of its members that they are victims of haphazard treatment. The feeling of the lack
of equality is the most difficult of feelings. It undermines the forces that unite society. It
undermines a person's independent identity.
 Individual liberty
The rule of law lastly may be used as a formula for expressing the fact that with us the law
of the constitution, the rule which in foreign countries naturally form part of a constitutional
code, are not the source but the consequence of the rights of individuals, as defined and
enforced by the courts, that in short, the principle of private law have with us been by the
action of the Courts and the Parliament so extended as to determine the position of the
Crown and of its servants; thus the constitution is the result of the ordinary law of the land.

Criticism

1. Absence of Arbitrary Power- Discretionary power lies at the heart of the administrative
activities. (P Cane)
2. Equality before the law. – The constitution is the result of ordinary law of the land. Civil
rights and general laws are the result of the constitution. Law determines the
constitution, though constitution determine the law.

5. What are sources of administrative law and how do you determine its scope?

a. Sources of Administrative law

The term sources ... cannot those agencies which rule of conduct acquire the character lf aw
by becoming objectively definite, uniform, above all compulsory. (NR Madhavan Menon)
Common Law System
Code of practices
Circulars
Administrative rules
Quasi legislation
1. Primary Source
Constitution
Act
Ordinance
Precedents
Delegated Legislation
Executive Orders
Administrative Practices

UK
Rules Publication Act, 1893
Statutory Instrument Act, 1946
Tribunal and Inquiry Act, 1958 (1991)
Crown proceeding Act 1947
Parliamentary Commissioner Act 1967

US
Administrative Procedure Act 1946
Federal Tort Claim Act 1946

India
Indian Constitution 1950
Tribunals Act, 1984
Indian Evidence Act 1972
Commission of Inquiry Act 1952
Prevention of Corruption Act, 1988
Lokpal Bill 1990

Nepal
Interim Governance Statute 2007
Constitution of Kingdom of Nepal 2015
Constitution of Nepal 2019
Constitution of Kingdom of Nepal 2047
Interim Constitution of Nepal 2047
Constitution of Nepal 2072

Supreme Court Act 2008

 Magistrate Act Issues, 2010
Civil Right Act 2012
Civil Service Act 2013
Civil Service Regulation 2021
Supreme Court Act 2013
Administrative Procedure Regulating Act 2013
Corruption Prevention Act 2009, 2017, 2059
Administrative Work Completion Regulation 2026
Government Offices (Inspection) Regulation, 2026
Local Administration Act 2028
Special Court Act 2031, 2059, 2048
Revenue Tribunal 2031
Commission on the Prevention of Abuse of Authority Act 2048
Labour Act 2048
Investigation Act 2026
Civil Service Act 2049
Human Rights Act 2052
Compensation Act 2053
Local Self Governance Act 2055
Good Governance Act 2064
Right to Information Act 2063
Good Governance (Management and Operation) Act 2064
Some Public Document Authentication (Procedure) Act 2063
Act Relating to Right to Information 2063

Administrative Law is essentially judge made law.

2. Secondary Sources
Opinion of experts
International treaties agreements and declaration and commitment
Reports of various committee and commissions
Legal Maxims and Principles
b. Scope of Administrative law
Red-light theory – Rule of law, legal domain, constitutional supremacy, judicial review
Should court bear the primary responsibility on administration?
Is it appropriate to borrow from private law model of adjudication?
Should individual rights to get priority against public interest?
Two principle reasons, the judiciary have a wide scope for the making political decision. First
Statute law does not seek with any precision to indicate where, between Ministers and
judges; final decision making should lie. Secondly judges themselves, in the common law
tradition of judiciary creativity, frequently invent or re-discover the rules of law which
enable them to intervene and to exercise political judgement in areas that hitherto had
been understood to be outside their province. In the event for these two reasons legislator
and minister and public authorities are continuously being surprised to discover that in the
view of the judges they do not have power they thought they had. (J. Griffith Constitutional
and administrative Law)
Government Reform
New Public Management
Reinventing Government
Structural, organizational and procedural
New public Governance
Contract Governance
Network Governance
Main features of the old public administration are the domination of the rule of law; a focus
on administering set of rules and guidelines, a central role for the bureaucracy in making
and implementing public policy, the 'political administration divide within public
organization, a commitment building and hegemony of the professional in public service
delivery. It was developed early years of the public sector in the late nineteenth and early
twentieth centuries a suitable case for treatment. (Stephen P. Osborne)

That administrative law texts aimed at law students and legal practitioners lack a realistic
grasp of what most public administrators actually do, the organizational setting in which
they work and values that inform their activities. They [lawyers] focus on overhead and
control function, not on implementation and service delivery.

Forged on the anvil of the emerging welfare state. Green light theorists looked to the truly
representative legislature to advance the causes of workers, women, minorities, and
disadvantaged. For them the role of law to facilitate and provision of statutory established
programmes of public services. Parliament was trusted to deliver socially desirable result,
and so giving effect to parliament's intention comported with those theorists' ideological
leanings; A corollary to this approach was a deep suspicion of judges, who as a class were
seen as hostile to collectivism and the welfare state. Employing Victorian canons of
statutory interpretation to read down and in some instances scuttle entirely social welfare
legislation, the judiciary were viewed often as the enemy.

This book's conception of Administrative law has been said to typify a 'red light theory of the
subject, aimed mostly at curbing governmental power, as contrasted with 'green light
theory' who advocates favour 'realist and functionalist jurisprudence designed to make
administration easier and better. (Wade and Forsyth)

Self-correcting democracy
What we have called red light theories of administrative law where the emphasis is on
citizen's right and on law as a brake on state action. (Carol Harlow and Richard Rawlings)
The red light view of English administrative law as instrument for the control of power and
protection of individual liberty, the emphasis being on the courts rather than on
government, did not go unchallenged red light theory looks to the model of balance
constitution and favour strong judicial control of executive power. (Harlow and Rawlings)
Court are the primary weapons for the protection of the citizen and control of the executive.

Umber light theory

Fire watching and fire fighting
Green light theory in using this metaphor, we do not wish to suggest that green light
theorist favour unrestricted or arbitrary action by the state... a dose of rigidity may be no
bad thing. (Harlow and Rawlings)

Green light theory

Green light theory sees in administrative law a vehicle for political progress and welcomes
the administrative state.
State action was necessary if the lot of the under privileged in the societies was to be
improved; pensions and unemployment benefit has to be funded; slum clearance required
planning and compulsory purchase and so on. Law was an essential tool in this crusade. As a
green light was given to the interventionist state, law had to become proactive. (Harlow and
Rawlings)
Decentralization and Devolution of powers.
Ministerial responsibility,
Civil servants must be left to follow only the government orders.
The core value of constitutional and administrative law are openness fairness, participation,
impartiality, accountability, honesty and rationality. (Michael Taggart)
Judicial review looks for a legal system which addresses the ideals of good government
according to law, including openness fairness, participation, accountability, consistency,
rationality, accessibility of judicial and non-judicial grievances, procedures, legality and
impartiality.

Let the politicians and administrators to manage themselves.

If for red light theorist the answer lay in court and rule of law, green light theorists saw
judges and lawyers differently. Openly advocating reform of the antiquated legal system
they viewed the legal profession as too old fashioned to reform itself. (Harlow and Rawlings)

Lawyers become advocates for the government as well as for private interest. The formal
training of lawyers fits them better for acting as advocates for private rights than of public
interest, at least of a public interest defined separately form the rights and needs of private
parties. (Peter Wool)
The foci of the lawyer and the public administrator in regards to administrative law are quite
different. (Kenneth F. Warren)
Green light theory focused on alternative to courts.
A main concern of many green light writers was ... to minimise influence of courts; courts
with their legalistic value, were seen as obstacle to progress and control that they exercise
as unrepresentative and undemocratic. (Harlow and Rawlings)

Green light theory prefers democratic or political forms of accountability.

 Public Law and Private Law
Public law function of public authority those which involve the determination of questions
and making of decision. Law governing the state falls in the category of Public law.
That an administrative law received dominant position in public administration. They had a
leading role in describing and defining what is public administration, how it functions and
what it procedures are.
Law governing the affairs of citizen fall in the category of private law.
Contract and tort
Substantive and procedural law.
Evidence law

Group: C - Attempt any SIX questions. (6x5=30)

6. What is administrative action?

Head of the State – President

Executive
The term executive is used to designate all those officers of the government whose business is
to execute to put into effects the laws. It is the pivot around which the actual administration of
the state revolves and includes all officials engaged in administration. (AC Kapur)
The executive has the administrative function of conducting government in according with the
law. (M Allen, B Thompson and B. Walsh)
The executive function is primarily of initiating and formulating policy and then directing its
execution. (BL Jones and K Thompson)
Executive is the government of the governing.
1. The final determination of the policy to be submitted to parliament.
2. The supreme court of the national executive in accordance with the policy prescribed by the
parliament and
3. The continuous co-ordination and delimitation of the authorities of the several department
of state. (Sir Ivor Jennings)

The legislature
Formulation, Making and Promulgation
De smith and Brazier
1. To make law
2. To control national expenditure and taxation
3. To comprise criticism of national policy scrutiny of central administration and procuring the
redress of individual grievances.

Hilaire Barnett
1. To provide personal of government or procedure of government.
2. To legitimize government action
3. To scrutinize and influence the subject matter of public policy, expenditure and
administration.
 4. To levy tax and control taxation
5. to debate issues of national importance
6. To raise and redress the grievances and individual.

Nepal
Legislature
Federal Parliament
House of representative
National Assembly
State Legislature
Local Legislature
Composition of village and municipal assembly.

The judiciary
The administration of justice by the state must be regarded as a permanent and essential
element of civilization.
The primary purpose of judiciary of judicial administration is not so punish crime but to prevent
it.

Judicial bodies

7. What do you mean by delegated legislation?

Subordinate legislation is that which proceeds from any authority other than sovereign power,
and is therefore dependent for its continued existence and validity on some superior or
supreme authority. (PJ Fitzerald)

A sub-ordinate legislation is that legislation which is made by a person or body after than
sovereign in parliament by virtue of powers conferred either by legislation which is itself made
under statutory power.

Functions which can be and cannot be delegated or permissible and impermissible delegation.

Institutions and Authorities for making delegated legislation

Types of delegated legislation

1. Title-based classifications
2. Discretion based classification
3. Purpose based classification
Enforcing Enabling Act
Extension and Application Enabling Act
Dispensing and suspending Enabling Act
Power to Alteration Enabling Act
Provision of fees and fine
 Supplementary of Enabling Act
Classifying and fixing standard Act
Clarify and provision of the Enabling Act
4. Power to Remove difficulties
5. Nature based Classification
Normal types of Delegation
Positive Delegation
Negative Delegation
Exceptional Delegation

8. Write about nature of administrative law.

Principles of Administrative Law
Principles are abstract which are taken as basic rules that starting point for reasoning about
what is to be done. (Timothy Endicott)
To bar to do any act beyond the jurisdiction.
Power is created and conferred by law, no authority can exceed its power and jurisdiction and
not power is absolute and uncontrolled. (Wade and Forsyth)
The central principle: the simple preposition that a public authority may not act outside its
power (ultra vires) might fitly be called central principle of administration law; an important
aspect of administration law is the control exercised by courts or tribunals over those powers
especially in relation to the right of citizens. (Paul Jackson and Patricia Leopold)
The duty to act or inquire fair and impartially, to decide in accordance with the law, to exercise
discretion reasonably, to come to reasonable decision and hold the balance fairly. (Denning)
a. A public authority may not act outside its power (ultra vires)
b. To provide an effective remedy to the people against public authority
c. To check abuse or detorunment of administrative power
d. To ensure to the citizens an impartial determination of the their disputes with officials
e. To protect the them (people) from unauthorized encroachment on their interest
f. To make those who exercise public power accountable to the people
g. To protect a public authority from being harassed by busybodies and crank

9. Distinguish between legislative and executive functions in Nepal.

10. What are reasons for growth of delegated legislation in Nepal?

1. Lack of pressure upon parliamentary time.
2. Technicality of subject matters
3. Needs for Flexibility
4. Emergency of the State
5. Complexity of Modern Administration
6. Need for Regulation and control of Financial Enterprises

11. Write about functions of quasi judicial bodies in Nepal.

12. Write about administrative actions those taken as functions of judiciary.

Good Luck!