Question No.1. A.V.

Dicey in “ The Introduction to the Study of the Law of the

Constitution” and his other works noted “The English have no administrative law”
comparing English rule with droit administratif of France. He noted that ideas of French
droit administratif are alien to the conceptions of modern Englishmen. Discuss Dicey’s
view contrasting Droit Administratif with Rule of Law.
Answer:- Dicey is a well-known English jurist who is the author of the book " The Introduction
to the Study of the Law of the Constitution." And “The English have no administrative law”
comparing English rule with droit administratif of France. Dicey was opposed to creating
separate laws for different classes of citizens, but he opposed the concept and advocated for
the Rule of Law.
In administrative law, the term "rule of law" is extremely relevant. It protects citizens from the
unlawful actions of regulatory authority. The term "rule of law" is derived from the French
phrase "la principle de ligality." i.e. a democracy founded on legal values. In plain terms, the
term "rule of law" refers to the state of affairs in a country where the law, for the most part,
reigns supreme. Law can be described as a law or concept that regulates human beings' external
behavior and is accepted and implemented by the state in the administration of justice.
Droit administratif is a legal term that means "administrative law." Administrative law in
France is known as Droit Administratif, which refers to a set of laws that govern the structure,
powers, and responsibilities of public administration, as well as the relationship between the
administration and the citizens of the region. The laws and standards passed by Parliament are
not represented by Droit Administrative. It includes the laws that administrative courts have
devised. The Droit administrative system was established by Napoleon Bonaparte. He was the
one that established the Conseil d'Etat. He passed an ordinance stripping law courts of their
judicial authority and another mandating that all matters be decided solely by the Conseil d'Etat.
Three Principles of Droit administratif are the power of administration to act suo motu and
impose directly on the subject the duty to obey its decision, the power of the administration to
take decisions and to execute them suo motu may be exercised only within the ambit of law
which protects individual liberties against administrative
Arbitrariness and the existence of a specialized administrative jurisdiction. One positive
outcome is that any executive decision is reviewed by an impartial authority. The Conseil
d'Etat, which is made up of eminent civil servants, deals with a wide range of issues, including
lawsuits for restitution for wrongful actions by government employees, income tax, pensions,
unfair elections, and civil servants' personal claims against the state for unjust dismissal or
suspension. It has messed with regulatory orders based on legal errors, loss of authority,
procedural irregularities, and detournement depouvior (misapplication of power). It has been
very generous in its authority. In droit administratif Administrative courts have authority over
matters relating to the state and administrative proceedings, which cannot be determined by the
ordinary courts. Laws established by administrative courts are followed by those making
decisions about the state and administrative lawsuits. The tribunal des conflits decides whether
there is a breach of jurisdiction between ordinary courts and administrative courts.
Administrative law refers to the set of laws that govern and oversee the government.
Administrative law is the branch of law that deals with the division of authority,
responsibilities, privileges, and obligations within the different government organs involved in
public administration. We review all of the regulations, legislation, and procedures that aid in
the proper regulation and management of the administrative machinery under it.
Dicey Defines Administrative Law as three area, Firstly, as portion of a nation’s legal system
which determines the legal statues and liabilities of all State officials, Secondly defines the
right and liabilities of private individuals in their dealings with public officials and Thirldy,
specifies the procedure by which those rights and liabilities are enforced.Dicey wa an
individualist Person. At the close of England's glorious Victorian age of laissez-faire, he wrote
on the principle of the Rule of Law. Dicey's definition of the Rule of Law presupposed the lack
of broad powers in the hands of government authorities for this purpose. Wherever there is
discretion, he believes, there is space for arbitrariness. interpreted the meaning of rule of law
in three ways:
1. Rule of Law's first interpretation is that " ‘no man is punishable or can lawfully be made
to suffer in body or goods except for a distinct breach of law established in the ordinary
legal manner be fore the ordinary courts of the land.
2. The Rule of Law's first interpretation is that no man is above law. Every individual,
regardless of rank or circumstance is governed by the common law of the kingdom and
is subject to the authority of the common tribunals.
3. The Rule of Law's first interpretation is that The constitution's basic principles are the
product of legal rulings deciding the interests of private individuals in specific cases
brought before the court.
Dicey has been a vocal opponent of the arrangement that gives the government discretionary
authority. Providing arbitrary authority, he believes, opens the door to arbitrariness, which
poses a significant challenge to individual liberty. The rule of law, according to Dicey,
demands that all be entitled to the country's ordinary courts. In England, according to Dicey,
there is no separate law or court for the trial of government servants. He was critical of France's
prevailing droit administratif. Administrative Courts and Ordinary Civil Courts are the two
kinds of courts in France. The Administrative Courts adjudicate disputes between residents and
the administration, while the Civil Court adjudicates disputes between citizens. Dicey was a
big supporter of the balance of powers when it came to resolving conflicts between the
government and the people.
According to Dicey, the Rule of Law necessitates fair submission of all citizens to the country's
ordinary law and the exclusion of special rights for individuals, namely administrative officials.
Dicey was successful to draw the attention of the scholars and authorities toward the need of
controlling the discretionary powers of the administration. He developed a philosophy to keep
the government and officers in check and under their authority. Any operation of the
administration must be backed by legislation or have been performed in compliance with law,
according to the rule of law he created. It is impossible to deny Dicey's contribution to the
creation and foundation of the idea of equal justice.
Dicey believed that France lacked the rule of law and that the scheme was not as good as it was
in England. He claimed that administrative action analysis is handled differently in England
than in France. The system of Droit Administratif according to Dicey, is based on the following
two ordinary principles which are alien to English law:
1. The government and every servant of the government possess, as representative of the
nation, a whole body of special rights, privileges or prerogatives as against private
 citizens, and the extent of rights, privileges or considerations which fix the legal rights
and duties of one citizen towards another. An individual in his dealings with the State
does not, according to French law; stand on the same footing as that on which he stands
in dealing with his neighbor.
2. The government and its officials should be independent of and free from the
jurisdiction of ordinary courts.
Dicey observed that Droit Administratif is contrary to the rule of law and, as a result,
administrative law is alien to the English system based on these two principles.

Question No.2. What is delegated legislation? How is principle of legality related to

delegated legislation? Discuss giving reference to Nepalese Case Laws.
Answers: When the function of legislation is entrusted to organ other than the legislature by
the legislature itself than legislation made by such organs is called delegated legislation.
According to Salmond, “Delegated legislation is the legislation that comes from any form of
authority other than sovereign power and depends on a supreme authority for the continuance
of it’s existence.
Delegated legislation is a kind of subordinate legislation . Generally, the “delegated legislation”
means the law made by executive under the powers delegated to it by the supreme legislative
authority. It comes in the form of orders, by-Laws etc. The committee on Minister’s power said
that the term delegated legislation has two meaning:
1. First, it means the exercise of power that is delegated to the executive to makes rules
2. Second, It means the output or the rules or regulations etc. made under the power so
given.
It can be said that “It is the law made by any person or authority under the power of parliament.
It is also known as the Subordinate legislation in Administrative law. Through an act of
parliament, Parliament has full authority to permit any person or authority to make law or
legislate according to the requirement. Delegated legislation is the outcome of this increasing
burden on parliament. Delegated legislation saves parliamentary time without, in any way,
undermining its overall responsibility. It is conducive to flexibility. It permits of the utilization
of expert knowledge. As we know parliament is not always in session so executives should be
suitably empowered to face emergencies. Rule-making power to the executive makes way for
the consolation of affected interest. It becomes possible to make practicle adjustment in policy
execution to suit popular wishes.
In Nepal, The Acts are made by the Parliament and to make rules and by laws the parliament
have given the authority to the certain authority. The rules, regulations and by-laws are
delegated legislation in Nepal. For Eg. Forest Act is made by parliament and the Forest rule is
made by ministry of forest since the power to make rule is delegated to ministry of forest in the
act.
The Principle of legality is a constitutional interpretation provision that states that if Parliament
wishes to conflict with fundamental rights or values, or to break from the general system of
law, it must do so in plain and unambiguous terms. The theory of legality cannot prevail over
thick or tangled laws. However, it ensures that general or vague language does not abrogate
human rights and values. The principle of legality safeguards these constitutional rights and
values by requiring courts to take a cautious approach to legislative interpretation that errs on
the side of their protection.
Principle of Legality is also used in the delegated legislation. The delegated legislation must
be made by the authority which is delegated by parliament to form law and should not be
contrary to the law made by parliament or higher authority. If any authority goes beyond the
parent statute or by the constitution it is taken as the act against the authority and the law made
by such or beyond the authority is considered as ultra virus and made void. The Delegated laws
are always under parent act and constitution and never go beyond the them.
The judicial review is also done to give the legality of the delegated legislation. So Principle
of legality is always used to make the delegated legislation valid. The principle of legality
check the validity of delegated legislation if the delegated legislation does not fulfill the criteria
of principle of legality than it is canceled by declaring ultra-virus (beyond authority)
Some of the Nepalese cases which refer have given decision on delegated legislation by using
the principle of legality.
1. Meera Gurung Vs central Immigration Department Thamel
On this case court have given decision that The use of unequal provisions in Rules 14(3)
and 14(4) violates the spirit of the Constitution, namely the right to equality. As a result,
the unequal clause of Rule 14(4) is null and invalid to the degree that it is inconsistent
with the Constitution and the given directive order to make equivalent laws.
2. Aachuta Prasad Kharel vs. prime Minister, Office of Council of Minister and others
In this case the Supreme Court ruled that the right to a fair trial and a reasoned decision
is a fundamental principle of justice. Which, according to the Constitution, cannot be
restricted. This are the people's basic and fundamental rights. As a result, the authority
delegated by the Nepal Legal Professional Act, 2050 to make the law cannot surpass
the authority provided by the parent Act and violate the fundamental principle of
justice. As a result, the court declared rule 5(2)(3) void ab initio for violating the
Constitution, Act, and general principles of justice.
3. Chandra Kant Gyawali and others v. HMG and others
In this case The Supreme Court ruled that even in jail, every individual (prisoner) is
afforded equal legal protection, and that distinguishing prisoners based on their living
standard and educational history cannot be a justifiable excuse to divide prisoners into
privileged (ka shreni) and underprivileged (kha shreni) groups, and thus proclaimed
Rule 21 (1) of Prison Rules 2020 ultra vires with the Constitution.
4. Balkrishna Neupane vs. Cabinet Secretariat and other
The Supreme court give decision that Laws should only be rendered to carry out the
objectives of the Act, although they cannot enforce certain duties that are contrary to
the parent act. The rules merely served to fill the void in the parent Act, not to limit the
reach of the parent Act. Laws that contradict the intent of the Act cannot be valid or
necessary. No delegated law should have clauses that are in conflict with the
Constitution or the parent Act. As a result, Citizenship Rule 2049 byelaws 3.4(a) (b) (c)
are in conflict with Articles 8 and 9 of the 2047 Constitution and Sections 3 and 16 of
the Citizenship Act 2020. As a result, Citizenship Rules 2049 Rule 3.4(a) (b) (c) is ruled
null and void.
Analysing the decision of the above cases we can conclude that delegated statute is law made
by the executive authority under the limits set by the parent Act and the Constitution. Delegated
law will only complement the Parent Act's aim. It cannot go beyond the depth and authority
limitations imposed by the parent Act and the Constitution. If any laws are in conflict with the
constitution, they are considered null and void. So, in conclusion, we may conclude that the
constitutionality test over delegated legislation is one of the most powerful mechanisms for
exercising authority over delegated legislation and protecting citizens' rights. In context of
Nepal supreme court had effectively controlling the delegated legislation through the doctrine
of judicial review i.e. ultra vires in case of inconsistency with the constitution. That’s why the
legality principle must be applied in the delegated legislation for harmonize legal culture.
Question No.2. What is Henry VIII clause? Discuss its relation with Primary Legislation.
Answer: ‘Henry VIII clauses' are provisions in a bill that enable executive to modify or repeal
provisions in an Act of Parliament by supplementary legislation, which is subject to differing
levels of parliamentary review.” This allows the delegated law beyond primary or parent law.
Henry VIII was King of England and ruled from 1509 till 1547. During his reign, New type of
clause appeared in legislation. These New types of clause are nicknamed as the Henry VIII
clause to indicate executive autocracy. Henry VIII during his regime he enforced his will and
got his difficulties removed by using instrumentality of servile Parliament for the purpose of
removing the difficulties that came in his way. These new clauses operated as a specific clause
in a primary Act which gave the power for secondary legislation(regulations) to include
provisions which amend, repeal or are inconsistent with the primary legislation. This Statute
gave King Henry the authority to legislate without going through Parliament. Instead, he had
given himself the authority to make regulatory amendments in a public address. The effect of
Henry VIII clause is that whoever who makes the regulations has been delegated power by the
parliament. In other words, the executive arm of government would have the power to make
regulations which can modify the application of the primary statue. These provisions are now
in place to enable the UK government to amend primary laws via secondary legislation. In
comparison to King Henry's power-hungering motives, certain provisions are now seen as a
practical way to circumvent the whole, time-consuming Parliamentary approval process.
Parliamentary oversight is an option that can be used if necessary, but it is not a necessary
responsibility where ministers are more than capable of making the necessary changes on their
own. However, from an orthodox, Dicey perspective, those provisions may be claimed to be
more proof of the loss of Parliamentary supremacy. Only Parliament, after all, has the authority
to make or repeal legislation.
A Henry VIII clause is a rule of primary law that allows the executive to pass derogatory
legislation that is conflicting with primary legislation or is subject to alteration. Regulations
made under Henry VIII clauses, are not automatically subject to parliamentary scrutiny and
debate yet they are law, unless they are disallowable by regulations. Henry VIII clauses can
give rise to uncertainty and frustration in application when all the law is not contained in the
primary statue. Henry VIII clauses are considered unpopular in the courts, but that does not
make them invalid, and they are often held valid despite there being often very little guidance
in the clause providing the power to make the regulations on what those regulations might be.
The court can declare a Henry VIII clause invalid, they must consider that to be valid the clause
must be within the boundaries of legislative power of the Parliament, though even if it is within
legislative power it must come under a head of legislative power. The main justification for
creating a Henry VIII clause is that when an Act is put into operation it may require minor
amendments for it to work effectively in practice. The Donoughmore Committee of the UK in
1932 set out several principles of use including the points i.e. (a) The clauses should only be
used exceptionally, not routinely (b) a sunset provision should be included to mean the
regulations created are repealed after certain period of time and the Henry VIII clause should
be subject to a sunset.
Power is sometimes conferred on the government to modify the provision of the existing
statutes for the purpose of removing difficulties. When the legislative passes an Act, it cannot
foresee all the difficulties which may arise in implementing it. The executive is, therefore,
empowered to make necessary changes to remove such difficulties. Such provision is also
necessary changes to remove such difficulties. Such provision is also necessary when the
legislature extends a law to a new area or to an area where the social economic conditions are
different. This Henry VIII clause gives an express power to the executive to amend or repeal
any existing law. The executive has the power to change the original statute under the Henry
VIII clause. Furthermore, the Henry VIII provision differs from the clause in parent legislation
that gives the administrative regulatory powers in order to give effect to the parent statute. The
Henry VIII provision differs from a case in which the legislation grants the executive the
authority to expand a law still in use in one place to another, with the authority to amend to
make the required changes. present legislation to better suit the needs of the new territories.
The case of Pushpa Neupane V. Parliament (D.N. 8471, NKP 2067) can be described in terms
of Henry VIII clause. On this case the precedent is established that Delegated legislature has a
definite limitation, that limitation should be limited only to matters determined by the Act,
should not be contrary to the spirit of the Act and should not be regulated by rules, i.e. in
matters of procedure or procedure. The source of the Teachers Service Commission regulations
is the Education Act itself. If the Act clearly empowers the Government of Nepal to make rules,
then the provision of Rule 34, which includes procedural matters, will not be in conflict with
the Maternal Act. And The legislative provisions made in the Act and the provisions made in
the rules on the same basis regarding the work, duties and powers of the Commission and the
related procedural provisions cannot be said otherwise.
From this we can understand the relation between delegated legislation and primary legislation
through Henry VIII clause.
Arnab Chaudhary
BALLB 4th Year
Administrative Law