Lecture 1 Introduction _In England, we know nothing of administrative law and we wish to know nothing about it. —Dicey Ifyou take upa modern volume ofthe re “ ports of the Queen's Bench Divi you will find that about half of the cases reported have to do with rules of administrative law. —Maitland It may truly now be said that we have developed system of administrative Taw. —Lord Denning Synopsis 1. General... cies 2 6, Red light theory and green 2. Definition of administrative law . 2 light theory ... 7 Ivor Jennings . | 2 7, Sources of administrative law ... 8 Wade . | 3. 8. Historical growth and KC. Davis . .3 development of Garner . 14 administrative law . 9 Griffith and Street .4 England . 9 Jain and Jain .4 us . u Authors ... 4 France u 3. Nature and scope of India. 3 administrative law ....+++6+00+ 5 9, Constitutional law and 4, Reasons for growth of administrative law . 16 administrative law . 5 10. English administrati . 5. Functions of administrative law . 7 Indian administrative law «+++ 7 Scanned with CamScannerY y 2 Lecture t Introduction ENERAL 1 significant and outstanding development of the sai he rst rowth of administrative lays It does not, howe yy is the rapid § no administrative law before this century, For im at there Was ivan tien. : v that ne or the other, it has very ich een invextgrte Scanned with CamScannerea 12 Lecture 1 Introduction and officials. According 10 Dicey", droit administratif that portiay of French law which determines 1) position and liabilities of State off cials, 2) rights and liabilities of private individuals in their dealings. wih officials as representatives of the State, andl 1) procedure hy whieh theae anforved, Accoraling. to hin this system by based ap rights and duties are with the Shite de, two principles, namely, 1) an individual in his dealiny not, according to the French legal system, stand on the sane footing, ay ands in dealing with his neighbours and 2) the govern als ave independent of and free from the jurisdiction of that on whieh he ment and its oftie the ordinary eivil courts, From the above two principles, the following consequences ensue 1) the relation of the government and its officials towards private citizens must be regulated by a body of rules which may differ considerably from the laws which govern the relation of one private person with anothers 2) the ordinary courts which determine disputes between private individuals, have no jurisdiction to decide disputes between a private individual and the Stare but they are determined by administrative eourtss 3) in case of conflict of jurisdiction between two sets af courts, the said dispute will be decided by the administrative courts and 4) droit administratif has a tendency to protect from the supervision or control of the ordinary law courts, any servant of the State who is guilty of an act, however illegal, whilst acting bona fide in obedience to the orders of his superiors and in the discharge of his official duties, Dicey did nor favour droit administratif. According to him, the object of two sets of courts and two types of laws is to protect government offi- cials from the consequences of their acts. According, to him, there was no rule of law in France, In view of the fer thar there was supremacy of kaw, and equality of all citizens before the law, there was much more effec control over administrative action in England than in Br However, as we will see, Dicey was not right in drawing certain infer= ences. As a matter of fact, Conseil d'Etat afforded much more protection to the aggrieved parties in France than regular courts afforded to such persons in England, The popular perception that in France, the State offi- cials in their official dealings with private citizens are above the lav, oF are a law unto themselves, is erroneous. The official transpressing the bounds of law or acting contrary to the rules of natural justice in his dealings with the citizen is subject to a greater and more effective control in France than in some Anglo-Saxon countries, The doctrine of sovereign immunity which shows the backwardness of Anglo-American law is absent in the French system, “Close analysis suge gests that sovereignty and responsibility are mutually exclusive notions”. Admission to full State liability to the subject in France is the miraculous 31. Law of the Constitution (1913) 330. 32, For detailed discussion and case law, see Lecture a, Scanned with CamScannerHistorical growth and development of administrative | aw change inlaw effected by the jurisprudence evolved by the Conseil d No statute stated it, only the judge did declare it in a series of de: Mie Conseil d’Etat. No law of France as yet has decreed the liability of che French State. But the law is there in flesh and blood flowing fro ah ‘ecisions of the Conseil d’ Etat.” 7 tat. (d) India ‘Administrative law was in existence in India even in ancient times. Under the Mauryas ve ee centuries before Christ, there was a well organised and centralised administration in India. The rule o wae observed | by the kings and administrators and nobody a a exemption from it. The basic principles of natural justice and fair play were followed by the kings and officers as the administration could be run only on those principles accepted by dharma, which was a word with a scope wider even than the “rule of law” or the “due process of law”. Yet, there was no administrative law in existence in the sense in which we study it today. ‘With the establishment of the East India Company and the begin- ning of the British Rule in India, the powers of the government had increased. Many Acts, statutes and legislations were passed by the British Government regulating public safety, health, morality, transport and labour relations. The practice of granting administrative licence began with the State Carriage Act, 1861. The first public corporation was estab- lished under the Bombay Port Trust Act, 1879. Delegated legislation was accepted by the Northern India Canal and Drainage Act, 1873 and the Opium Act, 1878. Proper and effective steps were taken to regulate the trade and traffic in explosives by the Indian Explosives Act, 1884. In many statutes, provisions were made regarding holding of permits and ee eee ee ties and tribunals. Inthe 2oth century, social and econo’ significant impact on private rights of ¢ planning, education, health, service, pension, manufacture of goods, etc. Traditional legislative and judicial system could not effectively solve these problems. It resulted in increase in delegated ieee well as eribu- nalisati snistrative law thus became a live subject. ion, Administra att ends i he So of executive. power. The Defence of India Act, 1939 and the Rul eae thereunder conferred ample powers 0 the executive to interfere a ife, liber: individual with little or no judicial control over petty and property of an Wit ernment issued many orders and ordi- ther. In addition to this, the BE ay of administrative instructions. ees caverin several matters by mic policies of the government had itizens, e.g. housing, employment, Tachandéan, Administrative Law (1984) 56-57. Scanned with CamScanner14 Leetre 1 Introduction functions of the govern. Since Independence, the activities and the od ii utes Act, 1947, the ment have further increased. Under the Industral ee ze Empl ee ; ies Act, 1948 3 Es Minimum Wages Act, 1948, the Factories Act easures have been : vocial security ™ te Insurance Act, 1948, important social security en for those employed in The philosophy of a the Indian Constitution. St industrie 7 se state has been specifically embodied in the Constitution itself provisions are there to i atus and oppor- nome and political justice, equality of status and oppor ee hip and control of material resources of dns to best subserve the common good, ‘The operation of the economic system should nor result a oe concentra tion of wealth and means of production with a fem. For the implemen tation of all these objects, the State is vested with the po pose icti tal rights guaranteed by the tions even on the fundamen Ganon ta ts, several steps have been taken Constitution. In fact, to secure these objec steps hav y Parli ing many Acts, e.g. the Industrial (Development and pega Aer oaete hed ning and Acquisition of Immovable Regulation) Act, 1951; the Requisi a Property Act, 19523 the Essential Commodities Act, 1955, the Companies Act, 1956; the Maternity Benefit Act, 1961; the Payment of Bonus Act, 1965; the Banking Companies (Acquisition and Transfer of Undertakings) | Act, 1969; the Equal Remuneration Act, 1976, the Urban Land (Ceiling and Regulation) Act, 1976; the Beedi Workers’ Welfare Fund Act, 1976, etc. Markose studied the reported cases of the Supreme Court of three years (1953, 1954 and 1955) and found that about half of the cases dealt with matters of administrative law. Out of 250 reported cases, 119 belonged to administrative law category. Of 275 pages of Supreme Court judgments, 229 related to the subject of administrative law.** Obviously, it has increased considerably thereafter. Even while interpreting all these Acts and the provisions of the Constitution, the judiciary started taking into consideration the objects and ideals of social welfare. ae in Joseph eee Vellukunnel v. RBP, the Supreme Court er ape uB Companies Act, 1949, the Reserve Bank was peg gale judge to decide whether the affairs of a banking company were ae oe ec in a manner prejudicial to the depositors’ interest and a no option but to pass an order of winding up as prayed for by the Reserve Bank, Again, in State of A pe ees belo dealing with « donned ens iB State of A.P. v. Chitra Venkato Rao™, Partmental inquiry, the Supreme Court held that the 34, Administrati i eee ie in India (1961) 257, See also, Fazal, Judicial Control of 35. AIR voce 3 tion ia, Pakistan and Bangladesh (caged gk nese a7 1962 Supp (3) SCR 632; see also, Peerless General Finance and sega a ig RBL ta) 2 SCC 343, 375: AIR 1992 SC 1033. 38cCye aie ors NC 2154, see also, KL. Shinde v. State of Mysore, (1976) “1980 SC wen housing Corpn. v. Vijay Narayan Vajpayee, secure so i tunity to all citizens. The owners the society should be so distribute: (1986) 3 SCC 455: AIR 1980 $C 840. Scanned with CamScannerHistori ical growth an 'd development of admini ‘istrative law 15 sition 0 sue a weit of certiorari u : pore Te "OE a8 appellate court ler Article 226 is supervisor, so eed he eibunal had passed the order, the ed Ano eu co deqware. Thea poms the evidence forthe ean na ediction of the tribunal. In MP Sree ene the supreme Court observed that in matters rela v. Suresh Singh”, adequacy OF sufficiency of training, the ex ne to questions regard- § joe Commission would be generally oat pinion of the Public Serie ML Hater Bus tna Rao, the y the court. In State of ander the provisions of the Land Acquisition ae Court held that Wment isthe best authority to decide eee eee gfe purpose and whether the land can be aqui Ee not. red for that purpose In Maharashtra State Board of Secondary i education v. Paritosh Bee Sie eee ef ourt held: the Court should be extremely reluctant to substitute its own views as to whar teavise, prudent and proper in relation to academic matters in preference to those formulated by professional men possessing technical expertise and rich nee of actual day-to-day working of educational insticurions and the departments controlling them. In Javid Rasool Bhat v. State of J 0, the Supreme Court observed that ans ember of the Selection Committee can ask even irrelevant questions to explore the candidates’ capacity to detect irrelevancies. in Raja Ram Pal v. Speaker, Lok ‘Sabha'?, the Supreme Court held that «fa Member of Parliament is found guilty by the House of improper con- duct (cash for query) and is expelled, a court of law would not interfere with such action. ' Thus, while the activities and powers of the government and admin- istrative authorities have increased, now, there is a greater need for the enforcement of the rule of law ‘and judicial seview over these powers, so that the citizens are free to enjoy iberty guaranteed tO them by the made in several Starute> iving Gonstivuti 3 stitution. Provisions are, raordinary rem = of the Indian Bae of appeal, revision, et- ie ies are available under Artic 26 and 227 Of One Constitution. The principle of judicial review is held to be a P: Babu Verm * Unior of shyam 37 tu977) x SCC 627: AIR 1976 SC HPS see 30 SC, Neb A Indie, (gga) 2 SCC 52%: 1994 SCE (LSS) 685° = SCC sag; (2014) 1 SCC (LES) 54> at (1976) 3 SCC 536: AIR 1977 SC 594 1559 3.984) 4 SCC 27, 56-57; 08 1984 9C 154 (1984) 2 SCC 631, 65: 17) 3 SCC 18. i| Bobde. Scanned with CamScannerLecture 1 Introduction nf our Constitution. Orders passed by administrative author. hed and set aside if they are mala fide, dehors the Acy he provisions of the Constitution. If the rules, regulations o- eee eT fy these authorities are niot within their powers, they Scclured ules vires, unconstitutional, illegal or void. structure” ities can be quast can on be dee 9 CONSTITUTIONAL FE AW AND ADMINISTRATIVE LAW Sometimes, a question is asked as to whether there is any distinction ' al Jaw and administrative law. Till recently, the sub. ject of administrative law was dealt with and discussed in the books of constitutional law and no separate and independent treatment was given to it. In many definitions of administrative law, it was included in consti- between constitution: tutional law. : Though in essence administrative law does not differ from constitu- tional law inasmuch as both are concerned with functions of the gov. ernment and both are a part of public law in the modern State and the sources of both are the same and they are thus inter-related and com- plementary to each other belonging to one and the same family. Strict demarcation, therefore, is not possible, yet there is a distinction between the two. According to Maitland®, while constitutional law deals with structure and the broader rules which regulate the functions, the details of the functions are left to administrative law. According to Hood Phillips": Constitutional law is concerned with the organisation and functions of Government at rest, whilst administrative law is concerned with that organi- sation and those functions in motion (emphasis supplied). But the opinion of the English and American authors is that the distine- tion between constitutional law and administrative law is one of degree, convenience and custom rather than that of logic and principle. It is not essential and fundamental in character. Keith rightly remarks, “It is logi- cally impossible to distinguish administrative law from constitutional law and all attempts to do so are artificial.” India has a written Constitution, While constitutional law deals with the general principles relating to the organisation and power of 42. Kesavananda Bharati v, State of Kerala, (1973) 4 SCC 22s: AUR 1975 SC tgous Indint Nehru Gandhi v, Raj Narain, 1975 Supp SCC.1; AIR 1975 SC 2ay9; Minerva Mills ae. we Mee (igo) 5 8C IK w¥o SC 1789; L. Chandra Kumar vs Inion of India, (1997) 3 SCC 264; AIK 1997 SC tig; Raja Ram Pa sok Saba, fink of ei 97 SC 1145; Raja Ram Pal v. Lok Sal 43, Constitutional History (1985) 526; see also, Holland, J Es i! 5 ee also, Molland, Jurisprudence (x3th Edn.) 374 44. Constitutional and Administrative Law (1962) 13; see also, sn danse Law (1963) 1~25 Jain 8 Jain, Principles of Administrative Law (2007) 17-18. 45, ene Law of England (7th Edn.) 1; see also, Basu, Administrative Law 1996) 1. Scanned with CamScannerVaglishe administrative lay and bdian adeninise the Heyislatines executive and judicuary and theis fictions inter se and rowaeds the citizens, adriniatrative Lave bs that part of constiranen el Lew which deals in detail with the passers and finetinns af the adainiceratene authorities, Including civil wrvices, public departinent, lucal suthonitnns and other statutory budies, Thue, vdisle constitutional bay 1 concen with constitutional status af Ministers and civil servants, adaumnstratiae faw is concerned with the organisation of the services working of various departnents of the government, snd the proper 10. ENGLISH ADMINISTRATIVE LAW AND INDIAN ADMINISTRATIVE LAW ‘There is an important difference between Unglish adininistrative Lavy and Indian administrative lay In Bngland, Parliament is supreme and sovereign. Itcan do everything, “but make woman a man and a mana woman”, ‘The law enacted by the British Parliament is the highest form of law and prevaily aver every other form of law!” Any administrate action, therefore, ean be challenged in Hngland only if it is ultra vires the statute under which it way taken, tn fndia, on the other hand, as there is. written Constitution and the power of judicial review is eonferned by the Constitution on the Supreme Court and the High Courts, the same can he challenged av ultra vires the Constitution also, In India, administrative action will have to be tested on four anvily: 1) the action must have been taken in accordance with the rules and regulations; 2) the rules and rege ulations should he in accordance with the relevant statute, ie. the parent Act; 3) the action, the rules and regulations and the parent Act must be in consonance with the provisions of the Constitutions and 4) if itis a con. stitutional amendment, such amendment of the Constitution should also be in conformity with the basic structure of the Constitution. Ic is submitted that the following observations of Pathak CJ” lay down the correct law on the point and are worth quotin The range of judicial review recognised in the. ‘superior judiciary in India is per- naps the widest and the most extensive known to the world of law. The power extends to examining the validity of even an amendment to the Constitution, for now it has been repeatedly held that no constitutional amendment can be sustained which violates the basic structure of the Constitution," (emphasis supplied) 46, Cheney v. Conn (Inspector of Taxes), (1968) 1 WLR 242. 47. Union of India v, Raghubir Singh (1989) 2 SCC 754: AIR 1989 SC 1933. 48, Ibid, SCC 766; see also, Kesavananda Bharati v. State of Kerala, (1973) 4 SCC 225: AIR 1975 SC 1461; Indira Nehru Gandhi v. Raj Narain, 1975 Supp SCC tz AUR 1975 SC 2ayy; Minerva Mills Ld. v. Union of India, (1980) 28CC. 5943 AIK 1980 SC 17895 1, Chandra Kumar v, Union of India, (1997) 3 SCC 26e: AUC 1997 SC 11253 Ashoka Kumar Thakur ¥. Union of India, (2008) 6 SCC fue law 17 Scanned with CamScanner