M P Jain

Principles of Administrative Law

MPJAIN & SN JAIN
PRINCIPLES OF ADMINISTRATIVE LAW
An exhaustive commentary on
Administrative Law and Constitutional Principles,
with Indian & foreign case-law references

Dr Shakil Ahmad Khan and The Publisher's Editorial Board

LexisNexis.
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M P Jain Principles of Administrative Law/M P Jain Principles of Administrative Law/Volume 1/CHAPTER I
INTRODUCTORY
CHAPTER I
INTRODUCTORY
1. EXPANSION OF ADMINISTRATIVE LAW
Administrative law has been characterised as the most "outstanding legal development of the twentieth
century."1 It does not mean, however, that there was no Administrative Law in any country before the
twentieth century. Being related to public administration, Administrative Law should be deemed to
have been in existence in some form or another in every country having some form of government. It
is as ancient as the administration itself as it is a concomitant of organised administration. As has been
stated by a scholar: "Since administrative law is the law that governs, and is applied by, the executive
branch of government, it must be as old as that branch."2 In India itself, Administrative Law can be
traced back to the well organised and centralised Administration under the Mauryas and the Guptas,3
several centuries before the Christ, following through the administrative system of the Mughals to the
Administration under the East India Company, the precursor of the modern administrative system.4
What the opening statement, therefore, signifies is that Administrative Law has grown and developed
tremendously, in quantity, quality and relative significance, in the twentieth century; that it has become
more articulate and definitive as a system in democratic countries; that it has assumed a more
recognisable form in the present century so much so that it has come to be identified as a branch of
public law by itself, distinct and separate from Constitutional Law,5 a fit and proper subject-matter of
independent study and investigation in its own right. Problems of Administrative Law are presently
raised in a large number of Court cases. This shows the topical significance of Administrative Law at
present.
The rapid growth of Administrative Law in modern times is the direct result of the tremendous growth
of administrative powers and functions. This development can partly be attributed to the critical
international and internal situation creating a sense of insecurity which compels the government to
acquire vast powers to provide for the defence and internal security of the country. For example, in
India, the National Security Act, 1980 (NSA)6 confers vast discretionary powers on the Administration
to interfere with the personal freedom of the people. This Act provides for preventive detention on
several grounds, viz., defence of India, security of a state, public order, maintenance of supplies and
services essential to the community. But, mainly, the growth of Administrative Law is to be attributed
to a change of philosophy as to the role and function of the state. The ruling political gospel of the
nineteenth century was laissez faire which manifested itself in the theories of individualism, individual
enterprise, and self-help.7 This philosophy envisaged minimum government control, maximum free
enterprise and contractual freedom. The state was characterised as the "law and order" state and its role
was conceived to be negative as its interest extended primarily to a few activities only, e.g., defending
the country from external aggression, maintaining law and order within the country, dispensing justice
to its subjects and collecting a few taxes to finance these activities. It was an era of free enterprise and
minimum governmental responsibility and functions. The management of social and economic life was
not regarded as the government responsibility.
But the laissez faire doctrine resulted in human misery. It came to be realised that the bargaining
position of every person in the society was not equal, and uncontrolled contractual freedom led to
exploitation of the weaker by the stronger, e.g., of the labour by the management in industries. On the
one hand, there existed slums, unhealthy and dangerous conditions of work, child labour, widespread
poverty, and exploitation of masses, but, on the other hand, concentration of wealth in a few hands
became the order of the day. It came to be realised that the state should take active interest in
ameliorating the conditions of the poor. This approach led to the demise of laissez faire and the growth
of the new political dogma of "collectivism" which favoured state intervention in, and social control
and regulation of, individual enterprise.8 The state started to
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act in the interests of social justice; it assumed a "positive" role. In course of time, out of the dogma of
collectivism emerged the concept of the "social welfare state" which lays emphasis on the role of the
state as a vehicle of socio-economic regeneration and welfare of the people.9
As Maclver observes:10
"Thus the economic individualism of laissez faire, itself born of changing needs, could not withstand the demonstration of its
inadequacy which the age afforded. Its doctrine of free competition gave even to the name of freedom a sinister as well as an
unreal sound. It came to appear that the unequal are never free and that without protective laws the free are only the strong.
Against such a destroying freedom man appealed again to the state, and the brief age of laissez faire passed with its prophets."
This trend may be illustrated very forcefully by referring to the position in India. Before 1947, British
India was a police state. The ruling foreign power was primarily interested in strengthening its own
domination; the administrative machinery was used primarily with that object in view and the civil
service came to be characterised as the "steel frame". The state did not concern itself much with the
welfare of the people. But this scenario changed with the advent of independence in 1947. A conscious
effort then began to be made to transform the country into a welfare state. The philosophy of welfare
state has been expressly ingrained in the Indian Constitution. According to the preamble, the
Constitution aims at establishing a sovereign socialist secular democratic republic in India so as to
secure to all its citizens, inter alia, social, economic and political justice.11 According to Art. 38 of the
Directive Principles of State Policy,12 the state is obligated to strive to secure a social order in which
social, economic and political justice shall inform all the institutions of national life. The state is
required to direct its policy towards securing that the citizens have equal right to an adequate means of
livelihood; that the ownership and control of the material resources of the community are so distributed
as best to subserve the common good; that there is no concentration of wealth and means of production
to the common detriment; and that there is equal pay for equal work.13 The state is obligated to provide
for education and assistance in old age, in unemployment and in other contingencies. 14 The state is to
provide for free and compulsory education for children up to the age of fourteen years. 15 Further, in
interpretation of the law and the Constitution, the judiciary does at times take note of the ideals of a
social welfare state even though some of these ideals may not be expressly incorporated in the
Constitution.16
The emergence of the social welfare concept has affected all the democracies very profoundly. It has
led to state activism. A phenomenal increase in the area of state operations has occurred in the 20th
century; the state has taken over a number of functions which were previously left to private enterprise.
The state to-day pervades every aspect of human life; it runs buses, railways and postal services; it
undertakes planning of social and economic life of the community with a view to raise the living
standards of the weaker sections of the people and reduce concentration of wealth; it improves slums,
plans urban and rural life, and looks after health, morals and education of the people; it generates
electricity, works mines and operates key and important industries. It acts as an active instrument of
socio-economic policy, regulates individual life and freedom to a large extent, provides many benefits
to its citizens, and imposes social control and regulation over private enterprise.
The functions of a modern state may broadly be placed into five categories, viz., the state as protector,
provider, entrepreneur, regulator, and arbiter.17 As protector, the state protects the country against
external aggression and internal disorder. As provider, the state provides social security, social welfare
and a minimum standard of living to all. As regulator, the state regulates and controls various activities
of the community. Urban and town planning, environmental control, regulation of economic activities
fall under this head. As entrepreneur, the state engages in public enterprise. As an umpire, the state
arbitrates between competing social interests in the society. The state has to ensure minimum fairness
and maintain a reasonable balance between the different economic and social groups in the community.
The state regulation has been taken to such an extent that Maine's classic generalization that the
movement of progressive societies has been from status to contract 18 has all but been reversed in our
day. In many ways, the contemporary societies have reverted more or less to the medieval concept of
status.19 The twentieth century has seen a decline in the importance of the institution of contract. Many
relations are no longer governed by contract. Government largely allocates resources in the economy
and effectively manipulates
2
the market, by price contracts, wage controls and other legal and fiscal arrangements. Growth of state
activism has inevitably increased the number of situations where relations between the citizen and
public authority are governed by public law rather than private law. Consequently, private law is giving
place to public law; contract law to administrative law. According to Atiyah:20 ". . . much administrative
law now governs exchange relationships of a non-market character, and the distinction between market
and non-market relationships ends in a murky grey area where contractual and administrative law ideas
struggle for paramountcy".
Taking the scene nearer home, the ideal of a social welfare state is sought to be translated into practice
through state planning of economic resources and social control of private enterprise with a view to
create a socialistic pattern of society which involves improving the economic conditions of the poor,
keeping in view the demands of social justice; and all resources of the community are organised and
husbanded with that end in view. A large number of government enterprises have thus come into being;
some key industries, financial institutions and transport services have been nationalised; 21 a rigorous
system of state control and regulation of private enterprise has been created;22 the state plays a major
role in promoting socio-economic welfare of labour by regulating the employer-employee relationship
and by other means;23 increasing provision is being made by the state for social services, such as,
education, housing, health, family welfare; the state undertakes to supply food and other essential
commodities to the people at reasonable prices. The state has now become a major source of wealth.24
This state activism has led to one inevitable result. In its quest to improve physical, moral and economic
welfare of the people, the state has assumed more and more powers to regulate society. Traditionally,
the government of a country is divisible into three organs--legislature, judiciary and executive. While
increase in state activities has meant increased work for all the organs--the legislature has to enact newer
and newer laws to give effect to newer and newer socio-economic schemes, and the Courts have to
interpret these laws and adjudicate upon more and more disputes generated by these laws--yet the largest
extension in depth and range of functions and powers has taken place at the level of the executive-cum-
administrative organ. We have come to live in an administrative age; administrative organ has become
predominant and still it is on the ascendancy; its functions and powers have grown vastly over time.
Administration is the all-pervading feature of life to-day; the hegemony of the executive is now an
accomplished fact. It makes policies, provides leadership to the legislature, executes and administers
the law and takes manifold decisions. It exercises to-day not only the traditional functions of
administration, but other varied types of functions as well. It exercises legislative power and issues a
plethora of rules, bye-laws, and orders of a general nature. This is designated as delegated or subordinate
legislation. Delegated legislation has assumed more importance, quantitatively and qualitatively, than
even the legislation enacted by the legislature.25 No law enacted by the Legislature is complete and
several details need to be filled in through delegated legislation. To-day, not all disputes are decided by
the Courts in the traditional manner. The administration has acquired powers of adjudication over
disputes not only between itself and private individuals but also between private individuals inter se,
and thus have emerged a plethora of tribunals, apart from other innumerable adjudicative bodies,
diversified in structure, jurisdiction, procedures and powers, connected with the administration in
varying degrees and pronouncing binding decisions like the courts whose powers have been diluted or
excluded in several areas.26 The Administration has secured extensive powers to grant, refuse or revoke
licences, impose sanctions and take action of various kinds in its discretion or subjective satisfaction. 27
To enable the Administration to discharge effectively its rule-making, adjudication and other
discretionary and regulatory functions, it has been given vast powers of inquiry, inspection,
investigation, search and seizure, and supervision.28 The administrative machinery has vastly
proliferated. The administrative organs are variously designated as departments, directorates, boards,
commissions, authorities, bureaus, officers, tribunals, public corporations, government companies etc..
The truth is that in modern democratic societies, the administration has .acquired an immense accession
of power and has come to discharge functions which are varied and multifarious in scope, nature and
ambit. In the Words of Robson, the hegemony of the executive is now an accomplished fact.29
Extension in functions and powers of the Administration has become a desideratum as most of the
contemporary complex socio-economic problems can be tackled best, from a practical point of view,
only by administrative process instead of the normal legislative or judicial process. A legislative body
is best suited to determining the direction of major policy but it lacks time, technique and expertise to
handle the mass ofPage 3
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details. The legislature has to content itself more and more with laying down broad policies and leaving
the rest to the Administration, and thus has arisen the practice of delegated legislation. Administrative
adjudication has arisen largely because the multitude of cases arising for adjudication under the modern
legislation need to be decided expeditiously with the least formality and technicality, at less cost, and
by persons having specialised skills to handle such cases. The courts are not in a position to fulfil these
conditions and so the administrative tribunals have come into vogue.30 Reliance has come to be placed
in the administrative process as it is felt that the complex problems of to-day can best be solved that
way. Administrative process is comparatively flexible, less formal, and expeditious and hence the
proliferation of administrative process.
Another advantage of the administrative process is that it could evolve new techniques, processes and
instrumentalities, and acquire expertise and specialisation, to meet and handle new complex problems
of modern society. Administration has become a highly complicated job needing a good deal of
technical knowledge, expertise and know-how. Continuous experimentation and adjustment of detail
has become an essential requisite of modern administration. If a certain rule is found to be unsuitable
in practice, a new rule incorporating the lessons learned from experience has to be supplied. Even a
well-tested rule may have to be changed because of the rapidly changing situation in a developing or a
developed society. The Administration can change an unsuitable rule without much delay. Even if it is
dealing with a problem case by case (as does a Court), it could change its approach according to the
exigency of the situation and the demands of justice. Such a flexibility of approach is not possible in
the case of the legislative or the judicial process. Again the judicial process in which decisions are made
after hearing and on the basis of evidence on record is not suited to deciding matters involving wide
discretion to be exercised on the basis of particular departmental policy, position of finance, priorities
and allocations between competing claims. In many cases, preventive administrative action may prove
to be more effective and useful than punishing a person later for a breach of law. Thus, inspection and
grading by the state would answer the consumer's needs more adequately than prosecuting the seller for
adulteration later after the injury has been done to the consumer by unwholesome food.
All this has resulted in a proliferation of bureaucracy and administrative process.31 Administration has
assumed such an extensive, sprawling and varied character, that it is not now easy to define the term
"Administration" or to evolve a general norm to identify an administrative body. It does not suffice to
say that an administrative body is one which administers, for the administration does not only put the
law into effect, but does much more than that; it legislates and adjudicates. At times, Administration is
explained in a negative manner by saying that what does not fall within the purview of the legislature
or the judiciary falls within the purview of the Administration.
2. FUNCTION OF ADMINISTRATIVE LAW
In such a context, a study of Administrative Law becomes a matter of great significance. The increase
in administrative functions has created a vast new complex of relations between the administration and
the citizen. The modern administration impinges more and more on the individual. It has assumed a
tremendous capacity to affect the rights and liberties of the people. There is not a moment of a person's
existence when he is not in contact with the Administration in one way or the other. While development
of administrative process is inevitable in modern times, it also creates the concomitant problems of
infringement of the rights of the individual unduly, of misuse of power by the Administration. This
circumstance poses a basic and critical question for administrative lawyers, viz.: how to control
administrative power? It thus poses the eternal problem of devising proper safeguards subject to which
bureaucracy must exercise its powers. A host of questions thus arise. Does arming the Administration
with more and more powers keep in view the interests of the individual? Are adequate precautions being
taken to ensure that the Administration does not misuse or abuse its powers? Do the administrative
agencies follow in discharging their functions such procedures as are reasonable, consistent with the
rule of law, democratic values and natural justice? Has adequate control-mechanism been developed so
as to ensure that the administrative powers are kept within the bounds of law, and that it would not act
as a power-drunk creature, but would act only after informing its own mind, weighing carefully the
various issues involved and balancing the individual's interest against the needs of social control? It has
increasingly become important to control the Administration, consistent with
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efficiency, in such a way that it does not interfere with impunity with the rights of the individual. There
is an old adage containing a lot of truth that power corrupts and absolute power corrupts absolutely.
Between individual liberty and government, there is an age-old conflict. As Locke said in the 17th
century: "Wherever law ends, tyranny begins." There thus arises the need for constantly adjusting the
relationship between the government and the governed so that a proper balance may be evolved between
private interest and public interest. It is the demand of prudence that when sweeping powers are
conferred on administrative organs, effective control-mechanism be also evolved so as to ensure that
the officers do not use their powers in an undue manner or for an unwarranted purpose. It is the task of
Administrative Law to ensure that the governmental functions are exercised according to law, on proper
legal principles and according to rules of reason and justice; that adequate control-mechanism, judicial
and others, exist to check administrative abuses without unduly hampering the Administration in the
discharge of its functions efficiently. Thus, the objectives of Administrative Law are to ensure legal
control of the administrative power and to provide protection to the individual against abuse of such
power. It is the basic philosophy of Administrative Law that the Administration must have lawful
authority to do what it seeks to do. "The powerful engines of authority must be prevented from running
amok."32
Administrative Law seeks to adjust the relationship between public power and individual rights. 33
Administrative Law is the best designation for the system of legal principles which settle the conflicting
claims of executive and administrative authority on the one side and of individual or private right on
the other.34 It is the function of Administrative Law, in a democratic society, to draw a fine balance
between the conflicting claims of the individual and the Administration. Of course, in securing this
balance, the needs of efficient administration are to be duly taken note of. But efficiency of
administration though desirable cannot be the only yard-stick of good administration. Fairness to the
individual concerned is also a value to be achieved along with efficient administration. A fair
administration is really good administration. As the Kerr Committee in Australia has emphasized: "...
although administrative efficiency is a dominant objective of the administrative process, nevertheless
the achievement of that objective should be consistent with the attainment of justice to the individual." 35
Schwartz describes the function of Administrative Law in a different way. In an Administrative Law
case, the private party is confronted by an agency of government endowed by all the power, prestige
and resources enjoyed by the possessor of sovereignty. "The starting point is the basic inequality of the
parties. The goal of administrative law is to redress this inequality-to ensure that, so far as possible, the
individual and the state are placed on a plane of equality before the bar of justice." 36 In reality there is
no antithesis between a strong government and controlling the exercise of administrative powers.
Administrative powers are exercised by thousands of officials and affect millions of people. While the
Administration has the capacity to do a lot of good to the people, it also has the capacity to do a lot of
damage to the rights and interests of the individuals. As Justice Douglas of the U.S. Supreme Court
once said: "Absolute discretion, like corruption, marks the beginning of the end of liberty." 37
Maladministration results in weakening and not in strengthening the government as people get alienated
from it. Thus, it becomes necessary to ensure that powers are exercised properly and for the purposes
for which these are conferred. Administrative efficiency cannot be the end-all of administrative powers.
There is also the question of protecting individual's rights against bad administration. It is necessary to
have good administration, and a fair administration will lead to good administration. A democracy will
be no better than a mere facade if the rights of the people are infringed with impunity without affording
them proper redressal mechanism. An important function of Administrative Law is to ensure that when
the Administration oversteps its authority or acts unlawfully, the citizen should have an effective
remedy at his disposal. The need for a proper system of Administrative Law is no less urgent in a
parliamentary system of government. Here the legislative control over the Administration is not very
effective because the party system gives to the government of the day a tremendous hold over the
legislature.38 Therefore, parliamentary control needs to be supplemented by additional control
mechanism.
In addition, there is the question of widespread bureaucratic corruption.39 Broad and uncontrolled
discretionary powers conferred on administrators have inherent seeds of corruption for, in the absence
of guiding norms to regulate the exercise of such powers and an effective supervisory mechanism, there
may be no way to assess whether a particular decision arrived at by an administrator is bona fide or is
motivated by some corrupt consideration. It will be extremely difficult, if not impossible, to contain
corruption in a country where uncontrolled powers are conferred on administrators.40 A proper system
of Administrative Law may help in averting this danger to a great extent.
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This makes the study of Administrative Law important in every country. For India, however, it is of
special significance because of the proclaimed objective of the Indian polity to build up a welfare and
egalitarian society. This has generated administrative process, and hence administrative law, on a large
scale. Administration in India is bound to multiply further and at a quick pace. A strong desire for rapid
development has its own dangers and pitfalls. A country in which the roots of democracy are not very
deep, a strong bureaucracy may have the tendency to ride rough-shod over the rights of the people. If
exercised properly, the vast powers of the Administration may lead to a welfare state; but, if abused,
they may lead to administrative despotism and a totalitarian state.41 A careful and systematic study and
development of Administrative Law becomes a desideratum as Administrative Law is an instrument of
control of the exercise of administrative powers.
3. DEFINITION, NATURE AND SCOPE OF ADMINISTRATIVE LAW
It is difficult to evolve a satisfactory definition of Administrative Law so as to demarcate articulately
its nature, scope and content. There are many formulations in the field, but none of them is completely
satisfactory; either they are too broad or too narrow; either they include much more than what properly
should be included within the scope of the subject, or else, they leave out some essential aspects or
elements of Administrative Law.
The American approach to Administrative Law is denoted by the definition of Administrative Law as
propounded by the leading scholar, Kenneth Culp Davis. According to him, Administrative Law is the
law concerning the powers and procedures of administrative agencies, including especially the law
governing judicial review of administrative action. It does not include the enormous mass of substantive
law produced by the agencies. An administrative agency, according to him, is a governmental authority,
other than a court and other than a legislative body, which affects the rights of private parties through
either adjudication or rule-making. Davis goes on to observe further: "Apart from judicial review, the
manner in which public officers handle business unrelated to adjudication or rule-making is not a part
of administrative law; this means that much of what political scientists call "public administration" is
excluded.42 He says that emphasis of Administrative Law is on administrative process--procedures for
formal adjudication and for rule-making. It also studies such incidental matters as investigating,
supervising, prosecuting, negotiating, settling, or informally acting. The difficulty in this formulation
of Administrative Law is that, on the face of it, it does not include the consideration of purely
discretionary functions (which may be called administrative) not falling within the category of
legislative or quasi-judicial. In modern Administrative Law, discretionary administrative functions are
vast in scope and range. The control-mechanism of these functions constitutes an important subject for
study in modern Administrative Law. In the U.S.A., some of these functions are included under the two
categories mentioned above. In the U.S.A., the term 'adjudication' is given a very broad connotation.
'Adjudication', according to Davis, includes "all that goes into the decision of a case, including policy
making and administrative functions." The main reason for the lack of distinction between 'adjudicative'
and 'administrative' functions arises because of the 'due process of law' concept contained in the V and
XIV Amendments of the Constitution. Thus, an 'administrative' power becomes 'adjudicative' as 'fair
hearing' is a must in most of the situations.43
Nor does the above formulation of an administrative agency appear to be exhaustive as it seeks to
exclude agencies having administrative authority pure and simple not having adjudicative or legislative
functions.44 Further, the emphasis in the definition is on judicial control of administrative agencies. But
other control mechanisms, like the parliamentary control of delegated legislation, control through
administrative appeals, and through the ombudsman type institution, are quite important and significant
and need to be studied for a fuller comprehension of Administrative Law.
In England, Dicey defined Administrative Law as denoting that portion of a nation's legal system which
determines the legal status and liabilities of all state officials, which defines the rights and liabilities of
private individuals in their dealings with public officials, and which specifies the procedure by which
those rights and liabilities are enforced.45 This definition is narrow and restrictive in so far as it leaves
out of consideration many aspects of Administrative Law, e.g., it excludes many administrative
authorities which, strictly speaking, are not officials of the state such as public corporations; it also
excludes procedures of
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administrative authorities, or their various powers and functions, or their control by Parliament or in
other ways. Dicey's for-mulation refers primarily to one aspect of Administrative Law, i.e., judicial
control of public officials. Dicey formulated his definition with the droit administratif in view. Dicey's
main concern was judicial remedies against the Administration and so he gave a restricted interpretation
to Administrative Law.46
The modern British approach to Administrative Law is depicted by the following definition formulated
by Sir Ivor Jennings: "Administrative law is the law relating to the Administration. It determines the
organisation, powers and duties of administrative authorities."47 This is the most commonly accepted
view and has been adopted with slight verbal changes, by many leading British scholars of to-day. For
example, Wade and Phillips define Administrative Law much on similar lines: "Administrative law is
a branch of public law which is concerned with the composition, powers, duties, rights and liabilities
of the various organs of government which are engaged in administration".48 Jennings' definition is fuller
in one respect as compared to that of Davis; it includes "administrative powers" which Davis seems to
include within the two headings of legislation and adjudication, but does not mention them separately
as such. In one respect, however, Jennings' definition falls short of Davis' formulation. While Davis
lays emphasis on procedures used by administrative agencies in exercising their powers, Jennings does
not mention administrative procedures directly and specifically; he only leaves them to be implied from
such broad words as "organisation, powers and duties," and this appears to constitute a basic difference
between the present-day American and the English approaches to Administrative Law.49
Until recently there appeared a basic difference in the approaches of the American and the English
Administrative lawyers. The English Administrative Law did not lay so much emphasis on procedures
of administrative bodies as did the American Administrative Law.50 This feeling led to the enactment of
the Federal Administrative Procedure Act in 1946 in the U.S.A.51 This Act lays down minimum
procedures which the American administrative agencies are required to follows. 52 Similar legislation
has been enacted in a number of States. It is, however, necessary to underline the importance of
procedures in Administrative Law. In a democratic set-up, administrative procedures have to be
democratic; the affected interest groups should get a participation not only in the policy-making but
even in the administration of policies. The current thinking is that procedures have great significance in
Administrative Law because proper procedures are necessary for proper discharge of administrative
powers and that it is in the area of procedures that safeguards can be incorporated for the individual
against the administrative process with any success rather than seeking to control administrative power
through other means. Evolution of fair procedures is thus necessary to minimise the abuse of
administrative powers. Therefore, the basic question at the present time is: how can the legal ideas of
fair procedure and just decision be infused into the exercise of administrative powers by the state and
its instrumentalities? This approach promises greater success than the attempt to control the
administration through the courts. It is this realisation which has led the American administrative
lawyers to place emphasis upon procedural safeguards to ensure a proper exercise of the administrative
power. Lately, thinking in England has also started along these lines as is evidenced by the fact that the
Franks Committee investigated rather elaborately into the working of various tribunals and quasi-
judicial bodies, and as a result thereof, a number of procedural improvements have been effected into
the working of the whole system.53 Presently, more attention is being devoted in England to a study of
administrative procedure. As a result, some studies devoted to administrative procedures have made
their appearance.54
Two other criticisms have been levied against Jennings' definition by Griffith and Street, leading
exponents of Administrative Law in England. First, the Jennings' definition does not attempt to
distinguish Constitutional Law from Administrative Law, as the former "in its usual meaning has a great
deal to say concerning the organisation of administrative authorities." In another sense also, "this is a
very wide definition, for the law which determines the powers of these authorities must include, for
example, the provisions of Acts relating to public health, housing, town and country planning, the
National Coal Board and the personal health services. Indeed, almost every statute affects to some extent
the powers and duties of administrative authorities."55 Though Administrative Law may not be
concerned with the substantive law as such, yet, as Griffith and Street themselves have somewhat
recognised56 a study of substantive law becomes necessary for appreciating the powers of the
Administration and for controlling the same. For instance, whether the principles of natural justice are
to be observed by an authority or not depends, to a great extent, upon the kind of action it is empowered
to take, and to find this, one will need to look into the statute under which it functions.57 Again, whether
the authority has abused its power, e.g., it has acted on irrelevant consideration,
7
etc.58 has to be decided with reference to the substantive provisions.
A limitation, which appears to be necessary to impose on the expression "law of the administration,"
the phrase used by Jennings in his formulation, is that matters of purely internal administration and
management of an administrative agency should be excluded from the purview of the Administrative
Law. Such matters as recruitment of staff members by an agency, matters of their leave, promotion,
gradation rules, etc. are matters which fall more properly within the area of public administration and
not so much within the compass of Administrative Law. The reason is that these matters pertaining to
the internal functioning of an administrative agency do not very much impinge on the private citizen in
his dealings with the agency concerned.59 But, of course, a study of the general structure of an agency
concerned may often become necessary to assess whether the power has been exercised objectively and
without bias and by a duly authorized official. Again, how much control-mechanism exists within the
department or an agency can be found out only from a study of its structure.
A more satisfactory and a proper formulation to define the scope, content and ambit of Administrative
Law appears to be as follows: 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 operation. This
statement has four limbs. The first limb deals with the composition and powers of the organs of
administration. This proposition is subject to the qualification stated earlier that the topics falling under
the rubric of public administration are to be excluded from a discussion on Administrative Law. The
term 'organs of administration' includes all kinds of public or administrative authorities. Vast powers
are being conferred on the Administration through legislation. In innumerable cases, the courts have
legitimized the conferment of broad powers on administrative authorities.
The second limb refers to the limits on the powers of administrative authorities. Just as the
Administration needs powers to reach the goals of the modern state, so must the powers be subject to
some limitations to develop a balanced administrative system. It is necessary to have safeguards and
standards subject to which the Administration must act. Otherwise, there may be maladministration,
administrative injustice and undue denial of individual rights. These limits may either be express or
implied. The express limits are laid down in statutory norms. The implied limits are derived by the
courts by the interpretative process. This is the most significant and creative aspect of Administrative
Law as express limits are not usually laid down. The third limb refers to the procedures used in
exercising those powers. The study of Administrative Law of to-day seeks to emphasize not only the
extraneous control but also the internal processes and procedures which the administrative authorities
themselves follow in the exercise of their powers. Evolving of fair procedures is a way of minimising
the abuse of vast discretionary powers conferred on the Administration. For example, in the area of
delegated legislation, emphasis is being laid on the consultative procedure;60 natural justice forms a
significant component of administrative process to-day and in many situations courts apply the concept
of "fairness".61 The Supreme Court of India has also underlined the importance of procedures. The Court
has observed, 'It is procedural rules which infuse life into substantive rights, which activate them to
make them effective.'62 The fourth limb refers to the control of the administration through judicial and
other means. Under this head would fall judicial as well as extra-judicial means of controlling the
administration, e.g., tribunals, ombudsman, etc. This heading also lays emphasis on redressal_ of
individual grievances through the court and other processes. This is a very important aspect of
Administrative Law. This aspect of Administrative Law is based on three basic propositions, viz.: (i)
power is conferred by law; (ii) no authority can exceed its power; and (iii) no power is absolute and
uncontrolled. The control and redressal aspects are the most significant features of Administrative Law.
All the three prior limbs in reality converge at this point.
In the modern onslaught of an ubiquitous Administration, the individual is affected in many ways in the
name of "public good" and "public interest". The individual is in the weakest defensive position against
the mighty power of the Administration. It is, therefore, the important function of Administrative Law
to ensure that government's powers are exercised according to law, on proper legal principles, according
to the rules of reason and justice; and not at the mere caprice or whim of administrative officers, and
that the individual has adequate remedies when his rights are infringed by the Administration. There is
perennial quest in thePage 8
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common law world to achieve this ideal.63 Some of the traditional means of control have been found to
be wanting. As for example, the concept of collective responsibility of the Cabinet to the Parliament64
does not provide an adequate safeguard to the citizen for several reasons: (1) the Cabinet enjoys majority
support in Parliament; (2) the parliamentary procedures are such that a matter of individual grievance
can be raised on the floor of the House with great difficulty; (3) members of Parliament have no access
to departmental files and thus have meagre knowledge of day to day administration; (4) ministers do
not have control over every detail of administration and departmental officials dispose of large number
of cases without any reference to the minister;65 (5) modern party system gives to the government of the
day a tremendous hold over the legislature.66 Therefore, it has been found necessary to search for other
controls and not depend solely on Parliament for the purpose. Judicial control plays a significant role
in keeping the Administration within due limits but even this has several lacunae.67 Thus search for other
methods to control the Administration goes on.68
It is well to remember that democracy is sustained not merely by conferring large powers on the
Administration but also by devising proper checks and balances subject to which the bureaucratic power
is to be exercised. It will become merely a facade democracy if rights and liberties of the people are
infringed by the Administration with impunity without affording them any redress. Conferring large
powers on the Administration may be justified only if control-mechanism is improved and due
administrative procedures are devised. Such an ideal can be achieved by strengthening the remedies
and reliefs against the Administration which an individual may invoke when he is adversely affected
by a particular administrative action. This is a constant quest and improving the redressal mechanism
against the administrative machinery is a dynamic process. Without a well developed system of
Administrative Law, democracy will lose much of its true content.
From this point of view, there is presently a ferment in the common-law world in the area of
Administrative Law and new trends are becoming visible. Many common-law countries have been
engaged for some time now in the exercise of improving and reforming their own system of
Administrative Law which is in a state of flux at present in the common-law world. Official bodies have
been appointed to study and make suggestions for improvement of Administrative Law. Some of the
suggestions made by these bodies have been implemented and others are in the process of being
implemented. Standing bodies have been created to keep administrative procedures constantly under
review and make suggestions to improve them. Such an effort is lacking in India. In India only the
courts act as a control mechanism vis-a-vis the Administration. The courts have played a creative role
to some extent in this area. The courts have made several landmark pronouncements displaying a law-
creative role of a high order. But judicial process has its own limitations. The courts seek to do justice
from case to case. Therefore, the emphasis is on deciding individual cases rather than on the creation of
general legal principles. In reconciling the public and private rights by and large the courts take a
pragmatic view of the matter rather than a theoretical view. As Krishna Lyer, J. emphasized in Gujarat
Steel,69 "law is not dogmatics but pragmatics", or as Bhagwati, J. said in Maneka Gandhi70 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.71
1 Vanderbilt's Introduction to Schwartz, French Administrative Law and the Common Law World, xiii (1954).
2 Parker, The Historic Basis of Administrative Law, 1 Rutg. L.R., 449 (1958).
3 See Shamasastry, Kautilya's Arthasastra, 56-75 (1961); Kane, History of Dharmasastra, Vol. 1, 201 (1968); Jayaswal, Manu
and Yajnavalkya, 9, 92-101 (1930).
4 Majumdar, Problems of Public Administration in India, 11 (1952); A.K. Chanda, Indian Administration, 15-42 (1965).
5 For further discussion on this point, see Chapter II, infra.
6 Reference has been made to this Act at several places in the following pages. Besides the NSA, there are two other central
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statutes on preventive detention dealing with economic matters. The Conservation of Foreign Exchange and Prevention of
Smuggling Act, 1974 (Cofeposa, for short) provides for preventive detention on grounds of conservation of foreign exchange
and prevention of smuggling of goods. The Prevention of Black-marketing and Maintenance of Supplies of Essential
Commodities Act, 1980 is directed against persons committing acts prejudicial to the maintenance of essential commodities,
as defined by the Essential Commodities Act, 1955, to the community.
7 Dicey, Law and Public Opinion in England, 126-210, 212-302 (1962); Jethro Brown, The Underlying Principles of Modern
Legislation, 156-280 (1971); Friedmann, Law in a Changing Society, 1-11, 38, 347 (1959).
8 Dicey, Law and Public Opinion in England, at 212-302 (1962). DICEY wrote in 1914 that 'by 1900, the doctrine of laissez
faire, in spite of the large element of truth which it contains, had more or less lost its hold upon the English people.' Ibid. at
XXXI.
9 Maclver, The Web of Government, 236 (1965); Robson, Justice and Administrative Law, 33 (1951); Prettyman, Nature of
Administrative Law, 44 Virginia L.R. 685, 696 (1958); Calvin Woodard, Reality and Social Reform: The Transition from
Laissez Faire to the Welfare State, 72 Yale L.J. 286 (1963); Friedmann, The State and the Rule of Law in a Mixed Economy,
(1971).
10 Maclver, The Modern State, 460 (1964).
11 Preamble to the Constitution.
12 See, Jain, Indian Constitutional Law, Chapter 29 (1987). Also, Chapter II, infra.
13 Art. 39.
14 Art. 41.
15 Art. 45.
16 Mukherjea, C.J., in Ram Jawaya v. Punjab, AIR 1955 SC 549 [LNIND 1955 SC 123] [LNIND 1955 SC 123] [LNIND
1955 SC 123], 533 : 1955 (2) SCR 225 [LNIND 1955 SC 123] [LNIND 1955 SC 123] [LNIND 1955 SC 123]; Crown
Aluminium Works v. Workmen, AIR 1958 SC 30 [LNIND 1957 SC 106] [LNIND 1957 SC 106] [LNIND 1957 SC 106]: 1958
(1) LLJ 1 : 1958 SCR 651 [LNIND 1957 SC 106] [LNIND 1957 SC 106] [LNIND 1957 SC 106]; Gujarat Steel Tubes v. Its
Mazdoor Sabha, AIR 1980 SC 1896 [LNIND 1979 SC 464] [LNIND 1979 SC 464] [LNIND 1979 SC 464]. These ideals have
been put into force in recent years more actively through a string of public interest litigation cases--reference to which has
been made in later pages. See, infra, Judicial Control.
17 See Friedman, The State and the Rule of Law in a Mixed Economy 3 (1971).
18 Ancient Law, 170.
19 See, Bernard Schwartz, Crucial Areas in Administrative Law, 34 George Washington L.R. 401 (1966).
20 Atiyah, The Rise and Fall of Freedom of Contract, 717 (1979).
21 Infra, last Chapter.
22 To name only, a few statutes in the area: The Industries (Development and Regulation) Act, 1951;The Essential
Commodities Act, 1955; The Foreign Exchange Regulation Act, 1973; The Imports and Exports (Control) Act, 1947; The
Companies Act, 1956; The Monopolies and Restrictive Trade Practices Act, 1969; various statutes for regulating specific
commodities, e.g., The Tea Act, 1953; The Coffee Act, 1942; The Rubber Act, 1947; The Coir Industry Act, 1953; The
Cardamom Act, 1965; and the Tobacco Act, 1975. A huge bureaucratic apparatus has been created to implement these laws
and thus a lot of administrative law is created in the process. See, Indian Law Institute, Administrative Process under
theEssential Commodities Act, 1955 (a study by M.P. Jain, 1963). For some excerpts from this book, see, Jain, Indian
Administrative Law: Cases & Materials (hereinafter cited as Jain, Cases), chapter 1 (1994). Also, Indian Law Institute,
Government Regulation of Private Enterprise (1971).
23 Some of the important enactments in this area are: The Industrial Disputes Act, 1947; The Employees State Insurance Act,
1948; The Factories Act, 1948; The Minimum Wages Act, 1948; The Payment of Bonus Act, 1965; The Payment of Wages
Act, 1936; and The Workmen's Compensation Act, 1923.
24 CHARLES A. Reich, Individual Rights and Social Welfare: The Emerging Legal Issues, 74 Yale L.J. 1245 (1965), and
also, The New Property, 73 Yale L.J. 733 (1964). Reich states in the New Property: 'One of the most important developments
in the United States during the past decade has been the emergence of government as a major source of wealth. Government
is a gigantic syphon. It draws in revenue and power; and pours forth wealth: money, benefits, services, contracts, franchises
and licences. Government has always had this function. But while in early times it was minor, today's distribution of largess
is on a vast, imperial scale'. The new Property, 73 YALE L.J., at 733. Also see, infra, Government Contracts.
25 Infra, Chapters III, IV and V.
26 Infra, Chapters IX-XIV. For a study of some of these tribunals, see Chapter XIII, infra and S.N. Jain, Administrative
Tribunals in India (1977); Jain, Cases, Chapters XII and XIII. Also see, Street, Justice in the Welfare State (1975); J.A. Farmer,
Tribunals and Government (1974).
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27 Infra, Chapters XVII, XVIII, XIX.
28 Infra, Chapters XVI.
29 Robson, Justice and Administrative Law. 34 (1951). See also, Ramaswamy, Rule of Law in a Planned Society, 1 J.I.L.I.,
31 (1959); HARRY W. Jones, The Rule of Law and the Welfare State, 58 Col LR, 143 (1958).
30 Julius Stone, The Twentieth Century Administrative Explosion and After, (1964) 52 California L.R., 513.
31 For this purpose, see M.P. Jain, Indian Administrative Law : Cases and Materials, Chapter 1.
32 Wade, Administrative Law, 5 (1988).
33 Griffith and Street, Principles of Adnrinistrative Law, 2 (1973).
34 Freund, Cases on Administrative Law, (1911).
35 Commonwealth Administrative Committee, 3 (1971); Wade, Towards Administrative Justice, 11 (1963).
36 Schwartz, Administrative Law, 26 (1976).
37 New York v. United States, 342 U.S. 882, 884.
38 Keeton, The Passing of Parliament, 56-63 (1954); F.A.H. Birch, Representative and Responsible Govt., 137 (1964). For a
discussion of the Parliamentary system in India, see, Jain, Indian Constitutional Law, Chapters 2 and 3.
39 See in this connection the observations of Justice IYER in the Fertilizer Corporation case, AIR 1981 SC 344 : 1981 (1)
LLJ 193 : (1981) 1 SCC 568 [LNIND 1980 SC 455] [LNIND 1980 SC 455] [LNIND 1980 SC 455]; infra, Vol. II.
40 As Wheare observes in Maladministration and its Remedies, 7 (1973): 'We would also regard as falling within the scope
of maladministration actions which were influenced by what is loosely described as bribery and corruption. In most cases this
would amount to a form of illegality, but there can be examples where influence may be used to persuade officials either to
act or not to act in an area where they have discretion but where, though it might not be clear that illegality was involved, it
could be urged that maladministration had occurred.'
41 See, Denning, Freedom under the Law, 126 (1949).
42 Davis, I Administrative Law Treatise, 1-3 (1959); Davis, Administrative Law Cases--Text-Problems, 1 (1977). Schwartz
also maintains that 'it is through its exercise of rule-making and adjudicatory authority that the administrative agency is able
to determine private rights and obligations': Administrative Law, 7 (1976) .
43 See, Davis, English Adm. Law--An American View, (1962) , Public Law, 139.
44 In the U.S.A., extensive use is made of independent regulatory commissions having powers of administration, legislation,
adjudication, regulation, prosecution, investigation etc. Such a body is by and large independent of the government and has
power to determine private rights either by rule or decision. American Administrative Law concentrates mostly on such bodies.
See, Schwartz, Administrative Law(1976); also, Case-book, 7-20 (1988); Report of U.S. Attorney-General Committee on
Administrative Procedure, 7 (1941); Schwartz and Wade, Legal Control of Government, 26 et. seq. (1972) .
45 Law of the Constitution, 329-33 (8th ed.).
46 Infra, next Chapter.
47 Jennings, The Law and the Constitution, 217 (5th ed., 1959).
48 Constitutional Law, 547 (1977). Also see, Wade, Adm. Law, 4-6 (1988).
49 See the criticism by DAVIS of H.W.R. Wade's book on Administrative Law from this angle: English Administrative Law,
An American View, 1962 Public Law, 139 Also see, infra, this Chapter.
50 SCHWARTZ says: "The focus to-day is the administrative process itself--upon the procedures which administrative
agencies must follow in exercising their powers:" Administrative Law, 3 (1976).
51 For comments on this Act, see infra.
52 Infra, Chapter II. For comments on the Administrative Procedure Act, see, Nathanson, Some Comments on the
Administrative Procedure Act, 41, Ill. L.R. 368 (1946-47).
53 See, infra. Also, Jain, Cases, Chapter XII, Sec. B.
54 See, Ganz, Administrative Procedures (1974). It focuses attention on 'non judicial' administrative procedures which regulate
an ever increasing area of decision-making by administrative authorities.
11
55 Principles of Adminisntrative Law, 3 (1973).
56 Principles of Administrative Law, at 5 (1973).
57 Infra, Chapter IX.
58 Infra, Chapter XIX.
59 In India, however, in a number of cases, problems of Administrative Law have been raised in such matters as appointment,
promotion, compulsory retirement, dismissal of employees of administrative bodies. These cases are noted at several places
in the following text. This means that the area of public administration beyond the reach of Administrative Law has been
shrinking over time.
60 Infra, Chapter VI.
61 Infra, Chapter IX.
62 Ratlam Municipality v. Vardhichand, AIR 1980 SC 1622 [LNIND 1980 SC 287] [LNIND 1980 SC 287] [LNIND 1980 SC
287], 1623 : (1980) 4 SCC 162 [LNIND 1980 SC 287] [LNIND 1980 SC 287] [LNIND 1980 SC 287] : 1980 Crlj 1075.
63 Infra, Chapter II.
64 For "collective responsibility", see, M.P. Jain, Indian Constitutional Law, 102. Lord Hailsham has characterised the cabinet
system as "elected dictatorship": The Dilemma of Democracy, 107 (1978).
65 Infra, Chapter XXI.
66 Keeton, The Passing of Parliament, 56-63 (1954); also, Jain, Indian Constitutional Law, 106-108.
67 Infra, under Judicial Control.
68 Infra, Chapter II. Also see under Ombudsman, infra.
69 Gujarat Steel Tubes v. Its Mazdoor Sabha, AIR 1980 SC 1896 [LNIND 1979 SC 464] [LNIND 1979 SC 464] [LNIND
1979 SC 464]: (1980) 2 SCC 593 : 1980 (1) LLJ 137 [LNIND 1979 SC 464] [LNIND 1979 SC 464] [LNIND 1979 SC 464].
70 Maneka Gandhi v. Union of India, AIR 1978 SC 597 [LNIND 1978 SC 25] [LNIND 1978 SC 25] [LNIND 1978 SC 25]:
(1978) 1 SCC 248.
71 See, infra, next Chapter. For further discussion on this development see, Jain, Changing Face of Administrative Law (1982);
Jain, The Evolving Indian Administrative Law (1983). The Law Commission in XIV Report did make some reference to some
aspects of Indian Administrative Law.