UNIT- I

 Evolution and Development of Administrative Law: Nature, Scope and

Definition of Administrative Law-Constitutional Law and Administrative
Law
 Rule of Law: Droit Administartif and Indian Perspective
 Separation of Powers

In 1986, Norfolk County Council created a route for road by-pass. As a consequence, a house
previously valued at some £400,000 was destroyed and rendered valueless. The Council refused
to buy the house on the basis that its acquisition was not necessary for the construction of the by-
pass. The Secretary of State for Transport approved the by-pass scheme (David Stott, 1997). This
decision taken by the council affected what would normally be regarded as fundamental rights or
freedoms that is property right. This situation takes account of an exercise of power conferred by
law but the question is that whether the decision maker had failed to act according to law in the
sense of either having positively exceeded the mark of his or her legal authority or having
negatively failed to exercise a power when the law intended it to be exercised. This type of issue
gives us an idea about what administrative law is about, which is the legal regulation of
exercising governmental power.

Definitions

Administrative law is “the body of rules which regulates the relationship of the administrative
authority towards private citizens and determines the position of State Officials, the right and
liabilities of private citizens in their dealing with these officials as representatives of the State
and procedure by which these rights and liabilities are enforced.”

As per Dicey, “Administrative law relates to that portion of a nation’s legal system which
determines the legal status and liabilities of all state officials; defines the rights and liabilities of
private individuals in their dealing with officials and specifies the procedure by which those
rights and liabilities are enforced.”

M.P. Jain and S.N. Jain defines it as, “Administrative law deals with the structure, powers and
functions of the organs of administration, the limits of their powers, the methods and procedures
followed by them in exercising their powers and functions, the methods by which their powers
are controlled, including the legal remedies available to a person against them when his rights are
infringed by their operations”.

Characteristics / features of administrative law –

1. It is used to decide rights of parties in their dealing with government officials.

2. It is a branch of public law.
3. It is also called forth branch of govt.
4. It is not a codified law. It is a judge-made law which evolved over time.
5. It is flexible in nature.
6. It is concerned with safeguarding that public decision-makers act within the law.
7. Administrative law is also concerned about ensuring there will be an element of fairness
operating in public decision making and generally ensuring proper administration.
8. Public administration is the day-to-day implementation of public policy and public
programs in areas as diverse as immigration, social welfare, defense, and economic
regulation—indeed in all areas of social and economic life in which public programs
operate.
9. Administrative law consists of complaints respecting government action that adversely
affects an individual. Thus, administrative law involves determining the legality of
government actions. 

Carol harlow and Richard Rowlings in their treatis “law and Administration” came
forward gave three theories of administrative law –

1. Red light theory – The main objective of administrative law is to control the power
vested in govt. It is based on the assumption that every power tends to corrupt and
absolute power tens to corrupt absolutely. Since, state regulates and controls various
activities of its subjects, there is every possibility of misuse or abuse of power. It seeks to
protect private rights and individual interests
2. Green light theory – it favours the idea of collectivism to improve the well-being of a
community. This can be achieved through active involvement, positive deliberation,
effective consultation, creative contribution, productive participation, decentralization of
powers, freedom of information and other similar actions at the level of administration.
 3. Amber light theory- It is the mix of both red and green theory.

Sources of Administrative law-

1. Constitutional law
2. Precedents or case law
3. Statutes and delegated legislation
4. Ordinance by the President and Governors, and
5. Reports of the Committee and Commissions

Reasons behind development of administrative law –

1. The shift for laissez-fair to welfare state – As the States changed their nature from
laissez-faire to that of a welfare state, government activities increased and thus the need
to regulate the same. Thus, this branch of law developed.
2. Inadequate and burdensome legislature - The legislature has no time to legislate upon
the day-to-day ever-changing needs of the society. Even if it does, the lengthy and time-
taking legislating procedure would render the rule so legislated of no use as the needs
would have changed by the time the rule is implemented. Thus, the executive is given the
power to legislate and use its discretionary powers. Consequently, when powers are given
there arises a need to regulate the same.
3. Loopholes in judiciary - The judicial procedure of adjudicating matters is very slow,
costly complex and formal. Furthermore, there are so many cases already lined up that
speedy disposal of suites is not possible. Hence, the need for tribunals arose.
4. Scope for the experiment - As administrative law is not a codified law there is a scope
of modifying it as per the requirement of the State machinery. Hence, it is more flexible.
The rigid legislating procedures need not be followed again and again.

Scope and extent of administrative law –

1. It focus on the powers of administrative authorities. It covers purely administrative

actions and powers of rule making, legislative rule making and quasi- judicial,
adjudicative organs and bodies.
 2. Rule making powers of administrative agencies and departments i.e. delegated
legislation.
3. Safeguard against abuse of administrative powers.
4. Functions and powers of administrative tribunals.
5. Liability of govt.
6. Public undertakings, corporations and govt. companies, commissions. Eg. Finance
commission, Election commission, State water dispute authority, Public Service
Commission, etc.

Difference between administrative law and Constitutional law –

1. A Constitution is the supreme law of the land. No law is above the constitution and
hence must satisfy its provisions and not be in its violation. Administrative law hence is
subordinate to constitutional law. In other words, while Constitution is the genus,
administrative law is a species.
2. Constitution deals with the structure of the State and its various organs. Administrative
law, on the other hand, deals only with the administration.
3. While Constitution touches all branches of law and deals with general principles relating
to organisation and powers of the various organs of the State; administrative law deals
only with the powers and functions of the administrative authorities.
 RULE OF LAW AND ADMINISTRATIVE LAW

The term ‘rule of law’ is derived from the French phrase “la principle de legalite” (the principle
of legality) which means a government based on principle of law and not of men.

Rule of law implies, is a concept opposed to arbitrary or tyrannical powers.

As per K.C. Davis, Rule of law implies a state of affair, where there is absence of arbitrary
powers, where law is observed by everyone including the govt. and its officers where the action
of the administration is backed by law, where every man is equal before law and assured that he
will not be punished except for violation of law, where cases relating to violation of law or
disputes as to rights and duties, are decided by impartial and independent courts and tribunals.

Rule of law includes – (given by Dicey in his book, “The Law of the Constitution”.

1. Supremacy of law – Rule of law means the absolute supremacy of law as opposed to the
influence of arbitrary powers or wide discretionary power. It excludes the existence of
arbitrariness or wide discretionary authority on the part of govt. It also includes, no one
should be punished except for breach of law.
2. Equality before law – It implies “all are equal before law”. There must be equality before
law or equal subjection of all classes to the ordinary law of the land administered by the
ordinary courts. There should not be any discrimination against people on the grounds of
race, gender, religion, creed, social background, etc.
3. Predominance of legal spirit – Courts should be given importance. They are the
guarantors of citizens rights and liberty. Rights are enforceable through courts.

“Droit Administratif” is the French legal system in which there were separate administrative
tribunals for deciding cases between the officials of the state and the citizens. This was criticized
by Dicey, as exemption of civil servants from the jurisdiction of the ordinary courts of law and
providing them with the special tribunals was the negation of equality.

RULE OF LAW IN INDIA

Rule of law means supremacy of law. Article 14 (equality before law and equal protection of
law)
Rule of law in India is based on-

1. No decision shall be given only by hearing one party rather they must hear both parties to
a cause.
2. They must not have any bias or interest in the cause.
3. The hearing must be in the open in public view.
4. They must not have prejudiced against either party for any extraneous reasons.
5. They must pronounce the judgment and give their reasons for their findings.

*Refer to the case State of M.P. v. Thakur Bharat Singh

 SEPARATION OF POWERS

The doctrine of separation of powers was introduced as one of the measures to protect the
individual rights of the citizens of a country. It main objective is to guard against arbitrary and
frivolous powers of the state.

The term  "trias politica" or "separation of powers" was coined by Charles-Louis de Secondat,
baron de La Brède et de Montesquieu, an 18th century French social and political philosopher.

Doctrine of separation of powers finds its mention firstly, in Aristotle book “politics”, though as
per Aristotle (Greek philosopher), three branches of govt. are, deliberative, magisterial, and
judicial.

In his book, he mentioned that, “There are three elements in each constitution in respect of
which every serious lawgiver must look for what is advantageous to it; if these are well arranged,
the constitution is bound to be well arranged, and the differences in constitutions are bound to
correspond to the differences between each of these three elements. The three are, first the
deliberative, which discusses everything of common importance; second, the officials . . .; and
third, the judicial element.”

Then in 17th century, English political theorist, John Locke, in his book “The Second treatise of
Govt., mentioned three types of powers – Legislative, Executive and Federative. But Locke didn’t
talk about strict separation of powers. He said, the legislative power was supreme and although
the executive and federative powers were distinct, the one concerned with the execution of
domestic law within the state and the other with a state’s security and external relations, he
nevertheless took the view that ‘they are always almost united’ in the hands of the same
persons. Absent from his classification is any mention of a separate judicial power. Moreover,
the proper exercise of these powers is achieved not through separation but on the basis of trust
i.e., that a community has entrusted political power to a government.

Later, Montesquieu talked about this doctrine in depth in his book, “The spirit of law”. He
deduced his ideas of separation of powers from his observations and ideas of the relations
between the Stuart King and the Parliament. He believed that freedom was not secured, if the
executive and the legislative powers were held in the same hands. 

In his book he specifically stated, “When legislative power is united with executive power in a
single person or in a single body of the magistrates, there is no liberty, because one can fear that
the same monarch or senate that makes tyrannical laws will executive them tyrannically. Nor is
there liberty if the power of judging is not separate from legislative power and from executive
power. If it were joined to legislative power, the power over the life and liberty of the citizen would
be arbitrary, for the judge would be the legislator. If it were joined to executive power, the judge
could have the force of an oppressor. 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 or the disputes of
individuals.”

As per the doctrine of separation of powers, all the three organs of govt. should work
independent of each other in order to maintain free democratic state. No organ will interfere in
the working of the other. The executive can’t perform legislative powers of the govt., the
legislature can’t perform executive or judicial power, or the judiciary can’t perform legislative of
executive powers.

According the Wade and Phillips, the doctrine of separation of powers, includes a three-fold
structure –

a. The same person should not form part of more than one the three organs of govt.
b. One organ of the govt. should not interfere with any other organ of the govt. Thus,
executive should not have rule making power.
c. One organ of the govt. should not exercise the functions assigned to any other organ.
Thus administration should not discharge the function of judiciary.

NATURE AND CHARACTERISTICS OF DOCTRINE OF SEPARATION OF POWERS-

1. This doctrine is very rigid in nature.

2. It helps in creation of the fair and just govt.
 3. It reduces the burden of work over each organ. As they have to perform work in a single
field. May it be, rule-making, implementation or decision making.
4. The intent is to prevent the concentration of power and provide for checks and balances.  
5. It protects democracy.
6. It is not a legal principle.
7. It reduces risk of power being abused.
8. It ensures mutually reinforcing democracy.
9. It allows different functions to be assigned to those most suited to carry out those
functions.

In countries, which follow parliamentary form of govt., the concept of separation is not so rigidly
followed there, whereas, in countries which follows a presidential congressional system of govt.,
separation of powers is well structured and followed practically.

DIFFERENCE BETWEEN PRESIDENTIAL AND PARLIAMENTARY FORM OF

GOVT.

1. Presidential form of govt. – In Presidential form of Govt. there in only one person as the
head of the State and Govt., i.e. the President. The election of the President is made
directly by the citizens of the country or a electoral college for a fixed period.
The President elects some ministers as the Secretary and forms a small Cabinet, who
assist in governing the country. Neither the President nor the Secretaries are accountable
to the Congress (Parliament) for their acts. Countries following this are – USA, Russia,
Brazil and Srilanka.
2. Parliamentary form of Govt. – It represents a system of democratic governance of the
country, wherein the executive branch is derived from the legislative body i.e. the
Parliament. Here the executive is divided into 2 parts, the head of the State i.e. Presidnet,
who is the nominal executive and the Head of the Govt. i.e. Prime Minister, who is the
real executive.
The party getting the maximum seats in the elections forms the govt. The countries
following this are India, Japan, Canada, etc.

Parliamentary form of Govt. Presidential form of Govt.

Features: Features:
1. Dual Executive. 1. Single executive
2.  Majority party rule 2. President and legislators elected separately
3. Collective Responsibility for a fixed term
4. Political Homogeneity 3. Non- Responsibility
5. Double Membership 4. Single Membership
6.  Leadership of prime minister. 5. Domination of president
7.  Dissolution of Lower House. 6. No dissolution of lower house
8. Fusion of powers. 7. Separation of powers
Merits Demerits
1. Harmony between legislature and 1. Conflict between legislature and executive.
executive.
2. Responsible government. 2. Non-responsible government.
3. Prevents despotism. 3. May lead to autocracy.
4. Wide representation. 4. Narrow representation.
Demerits: Merits
1. Unstable government. 1. Stable government.
2. No continuity of policies. 2. Definiteness in policies.
3. Against separation of powers 3. Based on separation of powers.
4. Government by amateurs. 4. Government by experts

SEPARATION OF POWER IN USA

- The doctrine of separation of powers lays its foundation in US constitution. (Article I of

American Constitution; Section 1 vests all the legislative powers in the congress
(Congress passes all laws). Article II; The executive power shall be vested in parliament.
Article III; section 1 vest all judicial powers in the Supreme Court.
- It implies that the legislative department shall never exercise the executive or judicial
powers, or either of them; the executive shall never exercise the legislative and judicial
powers, or either of them; the judicial shall never exercise the legislative or executive
powers, or either of them; to the end it may be a government of law and not of men.
 - They follow a presidential form of govt., this type of govt. is based on the principle of
separation of power between executive and legislature.
- The President and its ministers are not members of the Congress (Parliament).
President appoints his Secretaries (Ministers) on the basis of loyalty to him and not to
the party.
- Congress consists of two houses – Senate and House of representative. Both are
elected by people for a fixed period.
- The treatise entered into by the President are required to be ratified by the Senate.
- The President is impeached by the Congress.
- Supreme Court of USA is an independent body.
- Exceptions to separation of powers in USA:
a. The Congress has the power to creating special courts in the Courts.
b. The Congress can exercise his power of approving the appointment of judges.
c. Congress passes the procedural laws.
d. Judiciary has a power of judicial review through which it can declare the law passes
by congress unconstitutional.
e. The President has veto power in certain cases.
- Thus, even in USA, separation of power is not strict but rigid. They follow the doctrine of
checks and balances.

SEPARATION OF POWERS IN ENGLAND

- There is unwritten constitution.

- There is no absolute doctrine of separation of power in UK. It relies on the principle of
checks and balances to prevent against abuse of power.
- The govt. consists of the Crown (King), the Parliament and the Council of Ministers. The

king is the nominal executive head and the real executive power vests in the cabinet with
the Prime Minister at the head.

- The role of the executive is to implement government policies. These include

implementing legislation, security, providing social and economic welfare, administrating

public services and also try to make good relations with other countries. Therefore the
 executive function techniques ranging from the formation of broad policies to the
detailed management of daily routine services.

- Judiciary is independent of the executive of the executive control, but judges of the
Superior courts can be removed on an address from both the house of parliament. The

judiciary includes all judges in the courts of law, including those who have judicial offices
in tribunals and lay magistrates who staff the magistrates’ courts.

- The judges must not challenge the political authority of the legislature to decide what
net laws should be made. Courts cannot abolish Act however courts can check weather a

document is genuine Act.

- There is a huge confusion between powers of executive and legislature. We can see a
clear over lap both in terms of personnel and functions between three organs of govt.
- Monarchy used to influence over govt.
- Few glimpse of overlapping are, the prime minister can advise the queen to dissolve a
Parliament but it must meet within a year, The Queen in emergency can dissolve or
refuse to dissolve Parliament, Judicial appointments are made either by Queen on the

recommendation of Lord Chancellor or in the case of lay magistrate and certain other
junior judges by Lord Chancellor directly.

- Cabinet in England is a committee of the Legislature, which initiates legislature and

controls the legislature and also possess the power to dissolve the legislature.

SEPARATION OF POWERS AND INDIAN CONSTITUION OF INDIA

- The government of India is divided into three branches, the executive, the legislature and
the judiciary. Executive- formulates and executes the policy. Legislature – law making
body. Judiciary – keeping eye on the functioning of the other to branches whether they
are working in accordance with law.
- This doctrine has not attained any constitutional status.
- It only finds its mention in Article 50 which enjoins separation of judiciary from the
executive.
- India follows parliamentary form of govt. Therefore, separation of powers is not followed
in their strict sense. Functional overlapping is permissible under constitutional limits.
 Constitutional Provisions touching separation of power-

 Article 53 provides that executive power of the union are vested with the President
and Article 154 mentions that the Governor is vested with executive powers. But in
real, they exercise their power with the aid and advice of the council of ministers at
the centre (article 74) and at the State, as the case may be.
 Both President (Article 123) and Governor (Article 213) have power to promulgate
ordinance, which is a legislative function.
 Article 85 empowers the President to dissolve the house of people.
 Under Article 124, judges of SC are appointed by President.
 Under Article 61, either house of the parliament has power to start impeachment
against the President.

Therefore, it can be seen that three organs of the govt. in India are not strictly separate. India
doesn’t follow a rigid form of govt. though it is a doctrine of ‘checks and balances’ through
which one organ keeps watch of other organ.

COMPARATIVE STUDY OF INDIAN, UK AND THE US CONSTITUTION.

India
Written Constitution
(Lengthiest in the world)
The process of
amendment:
Amending the Constitution
is a combination of rigid and
flexible process. It Can be
amended by a Simple
Majority, Special Majority
or ratification by more than
half of the states.
(Basic structure cannot be
amended)
Center  + State:
The interdependence of
UK
Unwritten Constitution
(based on conventions and
political traditions)
 
The process of amendment:
Constitution amending
procedure is flexible can be
amended or repealed by a
Simple Majority.
(Since no distinction is made
between constitutional law
and ordinary law. Both are
treated alike)
Unitary:
The British constitution has a
US
Written Constitution
(shortest constitutions
amongst major world
powers)
The process of
amendment:
The process is very rigid
(2/3rd of the States should
pass a resolution to this
effect. Congress will call
the convention. In the
convention, it has to be
ratified by 3/4th of the
States)
Federal:
Dual Federation (USA) –
 Centre and state govt.
Neither of them is
independent of the other.
The Central government
interferes with the functions
of state governments. The
head of state is the president
while the actual head of the
government is the prime
minister. 
Government:
India has adopted a
Parliamentary form of
government.
Both President and
Governor exercise the power
of ordinance making under
the constitution, thus
performing legislative
functions.
 
Term:
the Indian President and
Prime Minister holds the
office for 5 years
(can be extended)
Separation of Powers:
Parliament is entrusted to
make the law; Executive is
entrusted with the duty of
implementation of the law,
Judiciary to implement the
law.
 
Citizenship:
India has one constitution
unitary character as
opposed to a federal one. All
powers of the government are
vested in the British
Parliament, which is a
sovereign body.
 
Government:
Britain has a parliamentary
form of government. The
real functionaries are
Ministers, who belong to the
majority party in the
Parliament and remain in
office as long as they retain
its confidence. (The UK is
the self-governing country,
but the head of the state is
monarch)
Term:
The British prime minister
holds the office for 4
years(can be extended)
Separation of Powers:
The Lord Chancellor is the
head of the judiciary,
Chairman of the House of
Commons (Legislature), a
member of the executive and
often a member of the
cabinet. The House of
Commons ultimately controls
the Legislative. The judiciary
is independent, but the judges
of the superior courts can be
removed on an address from
both Houses of Parliament.
Citizenship:
The UK constitution has not
both the Centre and state
are completely
independent. They are
complete governments.
the Federal Government
and States have their
Constitutions and do not
interfere in each other’s
functions
Government:
America has adopted a
Presidential form of
government. The President
is both the head of the state
as well as its chief
executive.
 
Term:
The term of the American
President is 4 years (fixed-
term)
Separation of Powers:
Art. I vest legislative power
in the Congress; Art. II
vests executive power in
the President and Art. III
vests judicial power in the
Supreme Court.
Citizenship:
America has adopted the
 and concept of single been codified in one doctrine of the dual ship in
citizenship for every citizen document. General respect of its Constitution
of the country. constitutional principles run and citizenship. It has two
through the law. Central Constitutions, one, for
statutes have been recognised America as a whole and
as holding "constitutional" another for each State.
value.
The sovereignty of power: The sovereignty of power: The sovereignty of power:
The Parliament can modify The British Parliament is The principle of judicial
the major portion of the the only the legislative body supremacy lies with the
Constitution through its in the country with unfettered American Supreme Court.
constituent power. power of legislation. It
The Supreme Court can can make, amend or repeal
declare the parliamentary any law. The courts have no
laws as unconstitutional power to question the
through its power of judicial validity of the laws passed
review. by the British Parliament.
The British Parliament may
amend the constitution on its
authority, like an ordinary
law of the land.
 

Email address – shafaqzooni@gmail.com

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