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E-Notes

Class : B.A.LL.B IV Semester

Paper Code : LLB-208

Subject : Administrative Law

Unit-1

EVOLUTION AND SCOPE OF ADMINISTRATIVE LAW

Nature, Scope and Development of Administrative Law

Administrative Law is the rules, orders and decisions of central, and local government agencies
established to perform a specific function.

Administrative Law is that portion of law which determines the organization, powers and duties
of administrative authorities.

Dicey: Firstly, portion of a nation‟s legal system which determines the legal status and liabilities
of all State officials. Secondly, defines the rights and liabilities of private individuals in their
dealings with public officials. Thirdly, specifies the procedure by which those rights and
liabilities are enforced.

Jennings: Administrative law is the law relating to the administrative law. It determines the
organization, powers and duties of administrative authorities.

K.C.Davis: Administrative Law is the law concerning the powers and procedures of
administrative agencies including especially the law governing judicial review of administrative
action.

Professor Wade: Administrative Law is concerned with the operation and control of the powers
of administrative authorities with emphasis on functions rather than on structure.

Professor Hart: Administrative Law includes law that is made by as well as the law that
controls the administrative authorities of a government.

Professor Griffith & Street: Administrative Law is concerned with three questions:-

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1. What sort of powers does the administration exercise?

2. What are the limits of those powers?

3. What are the ways in which the administration is kept within those limits?

The main object of the study of administrative law is to unravel the way in which these
administrative authorities could be kept within their limits so that the discretionary power may
not be turned into arbitrary powers. Kennith Culp Davis divided Administrative Law in three
parts:

 The powers vested in administrative agencies.

 The requirements imposed by law upon the exercise of those powers, and

 Remedies available against unlawful administrative actions.

Administrative Law is the study of multifarious powers of administrative authorities and their
control. The nature of power exercisable by the administrative authorities can be studies under
the following heads:

 Legislative or Rule making

 Judicial or Adjudicative

 Purely Executive

 Growth & Development of Administrative Law

 Emphasis on public welfare activities of the State.

 Industrialization and Urbanization in modern times.

 Administrative interference in the public life and consequential apprehensions.

 Scientific and technological developments and resultant problems.

 Speedy and simpler modes of adjudication.

 Decentralization of economic resources and to ensure economic and social justice.

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Rule of Law and Administrative Law

The originator of the concept of rule of law was Sir Edward Coke the Chief Justice in James I
Reign. The concept of rule of law is of old origin. Greek philosophers such as Plato and Aristotle
discussed the concept of rule of law around 350 BC. Plato wrote „Where the law is subject to
some other authority and has none of its own, the collapse of the state, in my view, is not far off
but if law is the master of the government and the government is its slave, then the situation is
full of promise and men enjoy all the blessings that the gods shower on a state. Aristotle wrote
law should govern and those who are in power should be servant of the laws.•
The derivation of the phrase Rule of Law is from the French phrase la principe de legalite which
implies principle of legality. By this phrase it refers to a government based on principles of law
and not of men. One of the basic principles of Constitution is rule of law and this concept is up to
standard in both India and America Constitution. The doctrine of rule of law is the entire basis of
Administrative law. As discussed by Aristotle, the concept of rule of law is grounded in the ideas
of justice, fairness and inclusiveness. Today, an intricate chain of fundamental ideas is
incorporated in rule of law which further encompasses equality before law, equal treatment
before the law for government, independence of judiciary, consistency, transparency and
accountability in administrative law.

It means that no man is above law and also that every person is subject to the jurisdiction of
ordinary courts of law irrespective of their position and rank.

The term rule of law is originated from England and India has taken this concept. The concept of
rule of law further requires that no person should be subjected to harsh or arbitrary treatment.
The word law in rule of law means that whether he is a man or a society, he must not be
governed by a man or ruler but by law. In other words, as per Article 13 of the Indian
Constitution rule of law means law of land.

According to Black‟s Law Dictionary: Rule of Law means legal principles of day to day
application, approved by the governing bodies or authorities and expressed in the form of logical
proposition.

According to Oxford Advance Learner‟s Dictionary: Rule of Law means the situation in which
all the citizens as well as the state are ruled by the law.

According to Professor A.V Dicey, for achieving supremacy of law three principles of postulates
must be followed which are as follows:

Supremacy of law - As per the first postulate, rule of law refers to the lacking of arbitrariness or
wide discretionary power. In order to understand it simply, every man should be governed by
law.
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According to Dicey, English men were ruled by the law and the law alone and also where there
is room for arbitrariness and that in a republic no less than under a monarchy discretionary
authority on the part of the Government must mean insecurity for legal freedom on the part of its
subjects. There must be absence of wide discretionary powers on the rulers so that they cannot
make their own laws but must be governed according to the established laws.

Equality before law - According to the second principle of Dicey, equality before law and equal
subjection of all classes to the ordinary law of land to be administered by the ordinary law courts
and this principle emphasizes everyone which included government as well irrespective of their
position or rank. But such element is going through the phase of criticisms and is misguided. As
stated by Dicey, there must be equality before law or equal subjection of all classes to the
ordinary law of land. French legal system of Droit Administrative was also criticized by him as
there were separate tribunals for deciding the cases of state officials and citizens separately.

Predominance of Legal Spirit - According to the third principle of Dicey, general principles of
the Indian Constitution are the result of the decisions of the Indian judiciary which determine to
file rights of private persons in particular cases. According to him, citizens are being guaranteed
the certain rights such as right to personal liberty and freedom from arrest by many constitutions
of the states (countries). Only when such rights are properly enforceable in the courts of law,
those rights can be made available to the citizens. Rule of law as established by Dicey requires
that every action of the administration must be backed and done in accordance with law. In
modern age, the concept of rule of law oppose the practice of conferring discretionary powers
upon the government and also ensures that every man is bound by the ordinary laws of the land
as well as signifies no deprivation of his rights and liberties by an administrative action.

ADM Jabalpur v. Shivkant Shukla (1976) 2 SCC 521

This case is also known as Habeas Corpus case. It is one of the most important case when comes
to rule of law. The question that was raised before the court was that whether there was any rule
of law in India apart from Article 21 of the Indian Constitution. It was in context relating to the
proclamation of emergency where the enforcement of Articles 14, 21 and 22 were suspended.

Som Raj v. State of Haryana 1990 AIR 1176

In this case it was held that the absence of arbitrary power is the postulate of rule of law upon
which the whole constitutional edifice is dependent.

Union of India v. Raghubir Singh 2013

In this case it was held by the court that a considerable degree that governs the lives of the
people and regulates the State function flows from the decision of the superior courts.

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Chief Settlement Commissioner, Punjab v. Om Prakash AIR 1969 SC 33

In this case, Supreme Court observed that our constitutional system, the central and most
characteristic feature is the concept of rule of law which means, in the present context, the
authority of law courts to test all administrative action by the standard of legality. The
administrative or executive action that does not meet the standard will be set aside if the
aggrieved person brings the matter into notice.•

Keshvananda Bharti v. State of Kerela (1973) 4 SCC 225

In this case, the Supreme Court enunciated the concept of rule of law as one of the most
important aspects of doctrine of basic structure.

Maneka Gandhi v. Union of India AIR 1978 SC 597

In this case Supreme Court declared that Article 14 strikes against arbitrariness.

Gadakh Yashwantrao Kankarrao v. Balasaheb Vikhe Patil AIR 1994 SC 678

In this case, the ration laid down was if the rule of law has to be preserved as the essence of the
democracy of which purity of elections is a necessary concomitant, it is the duty of the courts to
appreciate the evidence and construe the law in a manner which would sub serve this higher
purpose and not even imperceptibly facilitate acceptance, much less affirmance, of the falling
electoral standards. For democracy to survive, rule of law must prevail, and it is necessary that
the best available men should be chosen as people's representatives for proper governance of the
country. This can be best achieved through men of high moral and ethical values who win the
elections on a positive vote obtained on their own merit and not by the negative vote of process
of elimination based on comparative demerits of the candidates.•

Secretary, State of Karnataka and Ors. v. Umadevi (1992) 3 SCR 826

A Constitution Bench of this Court has laid down the law in the following terms thus, it is clear
that adherence to the rule of equality in public employment is a basic feature of our Constitution
and since the rule of law is the core of our Constitution, a court would certainly be disabled from
passing an order upholding a violation of Article 14 or in ordering the overlooking of the need to
comply with the requirements of Article 14 read with Article 16 of the Constitution.•

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Separation of Powers and its Relevance

The Separation of Powers” is a doctrine that has exercised the minds of many peoples. Ancient
philosophers, political theories and political scientists, framers of constitutions, judges and
academic writers have all had cause to consider the doctrine through the centuries.
This mainly signifies the division of different powers in between various organs of the state
executive, legislature and judiciary. The theory of separation of powers signifies mainly three
formulations of Governmental powers:

 The same person should not form part of more than one of the three organs of the state.

 One organ should not interfere with any other organ of the state.

 One organ should not exercise the functions assigned to any other organ.

Doctrine of separation of power is the foundation of all the constitutions of the countries in the
world, which came into being since the “Magna Carta”. While Aristotle gave the idea of
separation of powers, it was Montesquieu who laid the doctrine systematically, scientifically and
clearly in his book “Espirite des Lois” (Spirit of the Laws) in 1748. Montesquieu thought his
theory to be the political panacea for all governments however the same is not true. With
changing times, the doctrine has been modified by various nations to cater to the political, legal
and societal needs.

Montesquieu‟s theory - According to Montesquieu power is of three kinds- legislative, executive

and judicial and that these powers should be vested in separate entities to prevent tyranny of the
powerful. There would be an end of everything where the same man or body, whether of nobles
or of the people, to exercise those three powers, that of enacting laws, that of executing the
public resolutions and of trying the causes of individuals.

Advantages:

There are various advantages with the acceptance of this doctrine in the system;
The efficiency of the organs of state increased due to separation of works hence time
consumption decreases.

 Since the experts will handle the matters of their parts so the degree of purity and
correctness increases.

 There is the division of work and hence division of skill and labour occurs.

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 Due to division of work there is no overlapping remains in the system and hence nobody
interfere with others working area.

 Since the overlapping removed then there is no possibility of the competition in between
different organs.

Disadvantages:
As there are advantages attached to this doctrine, there are some disadvantages can also occur
due to this doctrine:

 There will be increased efficiency but reverse effect can also be seen because of the
overlapping between rights of the organs if we are not following the doctrine in its strict
sense because organs may fight for the supremacy over each other.

 There is also a possibility of competition between organs again for proving ones
supremacy over the other organ.

 There is also possibility of delay of process because there will not be any supervisor over
other hence the actions of the organs can become arbitrary.

Position In USA:

The framers of constitution of USA believed that only by allocating the three basic functions of
the government legislative, executive and judicial, in to three separate, coordinate branches could
power be appropriately dispersed. Thus the US Constitution allocates the three powers in
separate branches. The first three article of their constitution, known as the distributive articles,
define the structure and powers of the congress (legislative body), executive and the judiciary.
They were aware of the Montesquieu‟s idea about separation of powers and the fact that the new
constitution adopted was based on separation of powers. Yet they were equally aware that in
most states the legislature dominated the executive and judiciary. The system of checks and
balances created by the framers and ensures that Congress cannot dominate the executive and
judicial branches of the national government. Moreover, constitutional limitations are not to be
defined entirely independently of majoritarian preferences.

The Supreme Court of US has not been given power to decide political questions, so that the
Court may not interfere with the exercise of powers of the executive branch of the government.

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The President of USA interferes with the exercise of the powers by the congress through the
exercise of Veto power. He also exercises the law making with the use of his treaty making
power. The President also interferes with the functioning of the Supreme Court through the
exercise of his power to appoint judges.

In the same manner Congress interferes with the powers of the President through vote on budget,
approval of appointments by the senate and the ratification of the treaty. Congress also interferes
with the working of courts by passing procedural laws, creating special courts and by approving
the appointment of judges.

In this turn, the judiciary interferes with the powers of the Congress and the President through
the exercise of its power of judicial review. It is correct to say the SC of USA made more
amendments to US Constitution than the Congress itself.

In brief we can say that the condition in US by the words of CORWIN, “separations of powers
are more specifically seen in USA but absolute separation of powers does not exist in USA.”

Position in UK:

A separation of powers in the purest form is not and never has been a feature in functioning of
the organs of government in UK and since UK has no written constitution so there is no written
document regarding this matter. An examination of the three powers reveals that in practice, they
are exercised by persons or bodies which exercise more than one such power.

Position in India:

There are no separate provisions regarding the Doctrine of Separation of Powers has been given
in our Constitution. But there are some directive principles are given in the constitution as in
Part-IV and Part-V and Articale-50 of our constitution is separating the judiciary from executive
as, “the state shall take steps to separate judiciary from the executive in the public services of the
state,” and except this there is no formal and dogmatic division of powers.

In India, not only functional overlapping is there but also the personal overlapping is prevailing.

Judiciary
Under Article-142 and Article-145 of our constitution, the SC has the power to declare void the
laws passed by legislature and actions taken by the executive if they violate any provision of the

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constitution or the law passed by the legislature in case of executive actions. Even the power to
amend the constitution by Parliament is subject to the scrutiny of the Court. The Court can
declare any amendment void if it changes the basic structure of the constitution. In many cases
courts have issued directions for the Parliament to make policies.

Executive
The President of India who is the supreme executive authority in India exercise law making
power in the form of ordinance making power under Article-123, also the Judicial powers under
Article-103(1) and Article-217(3), he has the consulting power to the SC of India under Article-
143 and also the pardoning power in Article-72 of the Constitution. The executive also affecting
functioning of the judiciary by making appointments to the office of Chief Justice of India and
other judges.

Legislature
The Council of Minister is selected from the legislature and this Council is responsible for the
legislature. The legislature exercising judicial powers in cases of breach of its privileges,
impeachment of the President under Article-61 and removal of judges. The legislative body has
the punitive powers under Article-105(3).

Ram Jawaya v. State of Punjab

Indian Constitution has not indeed recognized the doctrine of separation of powers in its absolute
rigidity but the functions of the different parts or branches of the government have been
sufficiently differentiated and consequently it can be very well said that our constitution does not
contemplate assumption by one organ or part of the State of Functions that essentially belong to
another.

Indira Nehru Gandhi v. Raj Narain

In the Indian constitution there is separation of powers in a broad sense only. A rigid separation
of powers as under the US constitution or as under Australian constitution does not apply to
India. Separation of powers is the part of the basic structure of constitution. None of the three
separate organs of the republic can take over the functions assigned to the other. This scheme of
the constitution cannot be changed even by restoring to Article-368 of the constitution.

Relationship between Constitutional Law and Administrative Law

Constitutional and administrative laws are the areas of law which establish and regulate the
institutions of government within states. They also encompass the internal governance of

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supranational legal orders. They are increasingly concerned with the relationship between
internal and external legal norms and the interaction between multiple layers of government
within and beyond states. Both the constitutional and administrative law is a part of the public
law in the modern State. It is logically impossible to distinguish between administrative law from
constitutional law and all attempts to do so are artificial. Till recently, the subject of
administrative law was dealt with & discussed in the books of constitutional law and no separate
& independent treatment was given to it.

Many definitions of administrative law, was included in constitutional law. According to

Holland, the constitutional law describes the various organs of the government at rest while
administrative law describes them in motion. Therefore according to this view, the structure of
the legislative and executive comes within the preview of the constitutional law but their
functioning comes within the sphere of administrative law.

On one hand administrative law deals with the organization, function, powers and duties of
administrative authorities while constitutional law deals with the general principles relating to
the organization and powers of the various organs of the state and their mutual relationships and
relationship of these organs with the individuals.

In other words constitutional law deals with fundamental while administrative law deals with
details. It may also be pointed out that the constitutional law deals with the rights and
administrative law lays emphasis on public need. The countries which have written constitutional
law likewise India, the difference between constitutional law and administrative law is not as
nuclear as in England.

In such countries the source of constitutional law is constitution while the source of
administrative law may be statutes, statutory instruments, precedents and customs. India has a
written constitution while the constitutional law deals with the general principles relating to the
organization and power of the legislature, executive and the judiciary.
According to Mait Land, constitutional law deals with structure and the broader rules which
regulate the function while administrative law deals with the details of those functions. The
dividing line between the constitutional law and administrative law is a matter of convenience
because every researcher of administrative law has to study some constitutional law.
The importance of administrative law has not been adequately appreciated by governments, both
centre as well as the states. Indian administrative law has grown rather sporadically and
unsystematically.
Thus in India the administrative action can be tested on the following points:

 The action must have been taken in accordance with the rules and regulations.

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 The rules and regulations should be in accordance with the relevant statute.

 The action, the rules, regulations must in accordance with the provisions of the
constitution.

 If the constitution is amended, the amendment of the constitution should be in accordance

or conformity with the basic structure of the constitution.

The separate existence of administrative law is at no point of time disputed however, if one
draws two circles of the two branches of law, at a certain place they will overlap depicting their
relationship and this area may be termed as watershed in administrative law. In India, in the
watershed one can include the whole control mechanism provided in the Constitution for the
control of administrative authorities i.e. Articles 32, 136, 226, 227, 300 and 311.

It may include the directives to the State under Part IV. It may also include the study of those
administrative agencies which are provided for by the Constitution itself under Articles 261, 263,
280, 315, 323-A and 324. It may further include the study of constitutional limitations on
delegation of powers to the administrative authorities and also those provisions of the
Constitution which place fetters on administrative action i.e. fundamental rights.

Today administrative law is recognized as a separate, independent branch of the legal discipline.
The correct position seems to be that if one draws two circles of administrative law and
constitutional law at a certain place they may overlap and this area may be termed as the
watershed in administrative law.

Doctrine of water shades in administrative law:

The doctrine of water shades is very important as it gives a base to establish a line of proper
demarcation of the proper boundaries for the functioning of both the laws. It defines the
relationship between the constitutional law and administrative law which was defined by various
English authors like Dicey and Holland. Their definition clearly states that the laws are
dependent and interconnected to each other.

The relationship between constitutional law and administrative law is not very emboldened to be
seen with naked eyes but the fact remains that concomitant points are neither so blurred that one
has to look through the cervices of the texts with a magnifier to locate the relationship. The
aforementioned veracities and illustrations provide a cogent evidence to establish an essential
relationship between the fundamentals of both the concepts. If doubts still persist, the very fact

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that each author, without the exception of a single, tends to differentiate between the two
branches of law commands which create the hypothecation of a huge overlap.

Classification of Administrative Law

The administration is the meeting point of the three types of governmental functions, namely
legislative, judicial and administrative. Usually the executive performs the reside of all those
functions which are not vested in the other two branches of the government i.e., the legislature
and the judiciary. In the administrative process, all the three functions, which are traditionally
vested in the three different organs of government, are telescoped into one single authority.

There are three organs of Government- legislature, executive and judiciary. These three organs
essentially perform three classes of government al functions- Legislature, Executive and judicial.
The function of the legislature is to enact law, the executive is to administer the law and the
judiciary is to interpret the law and to declare what the law is. Although the term „the executive‟
or „the administration‟ is employed, there is no implication that the function of the executive are
confined exclusively to those of an executive or administrative character.

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