ADMINISTRATIVE LAW

N. L. SAJIKUMAR, ASSISTANT PROFESSOR, GLC

PHASE 1 : POLICE STATE

State had the single ‘role of police man’-the ‘maintenance of law and order.’
There was strict separation of powers. Doctrine of Separation of powers was
propounded by Montesquieu, the French scholar. Governmental power must
be separated and must be vested in three different bodies:

1. Legislative power, in Legislature;

2. Administrative power, in Executive; and

3. Judicial power (Adjudication), in judiciary

Each organ is supreme in its sphere of activity and one shall not encroach
into the field assigned to the other. (Montesquieu –‘’The Spirit of Laws’) The
reason is that, if the three powers are vested in a single body, it will exercise
the power arbitrarily and it may result in tyranny.

PHASE II : WELFARE STATE

A strict separation of power is not possible because State has many roles to
play. In the words of W. Friedmann in his work, Law in a Changing Society,
State is having the following roles:

(i) Protector (the traditional role of the State as ‘policeman’)

(ii) Industrial Manager
(iii) Economic Controller
(iv) Dispenser of Social Services (to provide pension, unemployment
benefit, maternity benefit etc.)
(v) Arbitrator

Thus, there is a shift in the concept of ‘State’ -- from ‘’Police State’’ to ‘’Welfare
State.’’ Due to certain reasons, the legislature was compelled to delegate
some of its law making power to the Executive. The reasons are:

(Q: Reason for the growth of delegated legislation or administrative

legislation?)

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 1. Emergence of ‘’Welfare State’’

2. Pressure upon the Parliamentary time

3. Technicality of subject matter (eg: Space law, Cyber law etc. – Experts
in executive more capable to make laws governing such technical
areas)

4. Unforeseen emergencies- The executive can act immediately in case

of unforeseen emergencies and can fill the gaps left by the legislature.

5. Opportunity for experimentation - The executive is having great

experience and is having opportunity for conducting experiments.

6. Flexibility

The executive/ administrative wing is in close contact with the individuals

in their day-to- day life and there is a likelihood that the precious rights of
the individuals will be trampled down by the executive. The judiciary cannot
sit dumb and mute. To keep the executive within their limits, the judges
evolved ‘’Administrative Law’’ (In U.S, there is Administrative Procedure
Act). In India, Administrative law is emerging out as a separate branch from
the constitutional law.(Difference between Constitutional law and
Administrative law: when the organs of the government (legislature,
executive and judiciary) are at rest, Constitutional law governs; but while
they are in motion, Administrative law governs.)

DEFINITION:

In the words of JAIN AND JAIN, Administrative law is the branch of law
which deals with:

1. Structure, powers and functions of the organs of administration;

2. The limit of their powers;

3. The procedure to be followed by them while exercising powers; and

4. The remedies available to the individuals whose fundamental rights

have been infringed by their action.

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 RULE OF LAW

The basic aim of law is the administration of justice and the preservation of
‘rule of law.’ The phrase ‘’Rule of Law’’ means ‘’the law rules” - government
by law and not by men; government not according to the whims and fancies
of the rulers.’’ The concept of rule of law was propound by LORD COKE and
developed by A.V.DICEY (Albert Venn Dicey) who propounded the principle
of legality (La pincipie de legalite). (Government by law; and not by men)

Dicey's concept of Rule of Law comprise of:

(i) Supremacy of law (ii) Equality before law (iii) Absence of discretion

Dicey maintained that in England there was absolute equality - Prime

Minister as well as ticket collector was subjected to the same law. Similarly
he argued that whenever discretionary power is given to administrative
bodies, there is room for arbitrariness and hence discretionary power shall
not be given to the executive. But absolute equality is a utopian idea. Even at
the time of Dicey, ‘’doctrine of sovereign immunity’’ (king can do no wrong)
prevailed in England. Art 14 of Indian Constitution incorporates ‘Rule of
Law.’ At the same time Constitution confers privileges and immunities for
President, Governor, Ministers, Women, SC/ST, Children, etc.

Moreover, as observed by the Indian Supreme Court ‘’some element of

discretion is necessary to keep the giant wheels of administration in motion;
and if it is misused or abused, the arms of the court are long enough to reach
it.”

DROIT ADMINISTRATIFF

(THE FRENCH ADMINISTRATIVE LAW SYSTEM)

It was established by Napoleon. There existed two sets of parallel courts :

1. Ordinary Court: To settle the disputes between individuals

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 2. Administrative Courts: To settle disputes between individual and
State/ Government officials in their official capacity.

The highest appellate court is the Conseil d’ etat. There is another court called
tribunal des conflicts to decide whether a dispute is between individuals; or
between State and individuals.

Even today, the French system of Administrative Law remains as the most
efficient system of Administrative Law. Dicey criticized this system and
argued that separate courts were established by Napoleon in order to give
special treatment to Government officials. In fact, Dicey viewed into a sunny
France sitting in a misty England. But before his death, Dicey himself realized
the truth.

DELEGATED LEGISLATION

It is already settled that the legislature has to delegate some of its law making
power to the executive; and there is no strict separation of powers in India
(Rama Jawaya Kapoor v. Punjab) Here arises a question: to what extent
legislature can delegate?

In Re Delhi Laws Act, the Supreme Court held that ‘’essential legislative
functions” should not be delegated, that is, the legislature must lay down the
policy and make it a binding rule of conduct.

The following are the examples of ‘’permissible delegations’’ and

‘’impermissible delegations’’:

(i) Power to impose tax is an essential legislative function and

hence cannot be delegated to the executive-(Impermissible).
(ii) Power to impose tax cannot be delegated; but if the minimum
and maximum rates of tax are specified under the statute; it is
permissible to impose tax.
(iii) To give retrospective operation to a statute-
(Impermissible).
(iv) Power to amend and modify a Statute - Impermissible
(Henry VIII clause) such clauses are termed Henry VIII clause,
who was a symbol of Executive tyranny and autocracy. Such
clauses are unconstitutional and void.
(v) Power to fill in details- (Permissible) (skeletal legislation)
Legislature provides the skeleton, flesh and blood provided by
the executive.

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 (vi) Power to bring an Act into operation- (conditional
legislation) – (Permissible). There is a distinction between a
‘delegated legislation’ and a ‘conditional legislation.’
Discretionary power is more in the case of delegated legislation
-the legislature hands over the gun only to the executive, the
executive has to manufacture gunpowder, identify the target
and trigger the gun. But in the case of conditional legislation, the
legislature hands over a loaded gun; and prescribes the target.
The executive has the only role of triggering. (Field v. Clarke)
(vii) Power to include and exclude from a list-(Permissible)
illustration: Industrial Dispute Act 1947 contains a long list of
public utility services-the appropriate Government is
empowered to notify any item as a public utility service.

CONTROL OVER DELEGATED LEGISLATION

Parliamentary Control or Judicial Control

Legislative Control

“Procedural ultra vires” “Substantive ultra vires”

1. Laying Procedure: The 1. Violation of ‘Consultation’: Grounds:

law delegating powers to the The executive has to consult 1.Parent Act against the
executive (the Parent Act) with the interested parties. Constitution
must be laid before the table
of the Houses. The members
get an opportunity
scrutinize it.

2. Scrutiny Committee on 2. Violation of ‘Publication’: 2.Parent Act Constitutional;

Delegated Legislation: It also The draft has to be published but delegated legislation is
scrutinizes the matter. for inviting public opinion, against Constitution.
objection if any.

3. Laying of the draft 3.Failure to lay the delegated 3. Delegated legislation is

delegated legislation before legislation before the table of against the Parent Act.
the table of legislature. legislature.

If the delegated legislation is 4. Malafides (Bad faith)

made without consultation or
laying or publication, the

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 court can struck down it as
procedural ultra vires.
5.Unreasonableness
Eg: A lady disqualified to be a
teacher on the ground
that “she is having
brown hair.”

ADMINISTRATIVE ADJUDICATION

When an administrative authority adjudicates, the principles of Natural

Justice must be followed. The two basic principles are contained in the
following maxims:

(A) Audi alteram partem (Hear the other side) or “Rule of fair
hearing.”
(B) Nemo judex in causua sua (No one shall be made a judge of his
own cause) or “Rule against Bias.”

(A) AUDI ALTERAM PARTEM

Fair hearing includes the following. :

1. Proper notice to be given in advance

2. Opportunity to produce evidence in his favor and to rebut adverse

evidence

3. Legal consultation/representation

4. Opportunity to cross-examine the opposite party

5. ‘Reasoned decision’/ ‘speaking order’ (The reasons for the decision

must be stated in the order)

In Maneka Gandhi's case the Supreme Court held that natural justice is an
essential ingredient of Article 14; and if pre-decisional hearing is not
possible, post decisional hearing must be given.
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EXCEPTIONS TO FAIR HEARING

In the following cases, the rule of fair hearing need not be followed:

1. Emergency situations-Eg: Demolition of a dangerous building by the

Municipality; where the owner not in India.

2. Impracticability - Radhakrishna V. Osmania University- Mass copying in

MBA examination, University cancelled the entire examination
without hearing each and every student. The court justified the action
of the university.

3. Public interest

(B) RULE AGAINST BIAS (NEMO JUDEX IN CAUSUA SUA)

Bias can be (1) pecuniary bias (2) personal bias (3) departmental bias/
subject matter bias/official bias

1. Pecuniary Bias

The Judge has a pecuniary interest in the subject matter. Eg: Dr. Bonhan's
case- Doctor has to be registered before a board, before practice. In case of
failure, the Board can impose fine, the amount from which a particular
percentage goes into the pocket of the persons who takes the decision. The
court held there was pecuniary bias.

2. Personal Bias

The deciding authority is having a partiality towards a person. Eg. A.K

Kraipak v. Union of India- IFS Interview Board member qualified the IFS test
and appeared before the same board for interview. Court held that there
was personal bias.

3. Departmental bias/subject matter bias/official bias

The deciding authority is having partiality towards the subject matter.

Gullappally Nageswara Rao v. Andra Pradesh State Transport Corporation-

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Government's policy of nationalization of transport'- Collector alone posted
to hear objection of the private owners. The court held the collector was
biased towards the Government policy (nationalization). There was official
bias.

DISCRETION AND ITS CONTROL

‘’Discretion’’ is ‘’the right to choose among alternatives.’’ In a modern

welfare State, some element of discretion is necessary to keep the wheels of
administration in motion. But, if it is misused or abused, Courts can interfere
and protect the interest of the individuals.

Judiciary exercise control over discretion under the following grounds:

Non Exercise of Discretion Abuse /Misuse of Discretion

1. Acting under dictation. Eg: 1.Taking irrelevant considerations. Eg:

Discretion to be exercised by the
Collector, but Chief Minister
dictates.
Terminating the service of Government
employee on the ground that he had
participation in RSS activity during his
college days- It is an irrelevant
consideration in a democratic setup.

2. Non-application of mind or 2. Leaving out relevant considerations Eg:

mechanical exercise of discretion.
Eg: S.P simply signing arrest
warrant without applying his mind
to each application forwarded by
the police.
ignoring consumer's interest, which is a
relevant consideration while fixing the price
of an essential community.

3.Self imposed fetters on 3. Malafides: Sadanadan v. State of Kerala-

discretion. Illustration: GELL V.
TEJA NOORA. The deciding
authority already puts a fetter on
his discretion. Instead, he has to
give ear to each case.
The DYSP cancelled a permit of Ration shop
in order to favor his relative to have the
dealership.

4. Unreasonableness: A decision, which

could not have been taken by a reasonable
man. (Wednesbury Corporation principle).
Eg: A lady disqualified to be a teacher on the
ground that she is having brown hair.

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 GOVERNMENT’S LIABILITY IN TORTS

Whether State is liable for the torts committed by its servants? / Whether
State is having vicarious liability?

Old Position: State was not vicariously liable-Doctrine of Sovereign

immunity prevailed (‘King can do no wrong’ or ‘king cannot be sued in the
court of his own creation’).

Present Position: Doctrine of Sovereign immunity is outdated (P&O Steam

Navigation case-plaintiff’s horses were injured due to the negligence of
Government servants)

Today State is vicariously liable for the torts committed by its servants. Eg:
Vidyavathi v. State of Rajasthan. (Collector's jeep hit and killed a person.
Court directed the Government to pay compensation to the widow).

Kasthurilal v. State U.P (1965) - A policeman fled to Pakistan with the seized
gold kept in police custody. The court held the State not liable; and once
again re-introduced outdated doctrine of sovereign immunity. This decision
has been subjected to criticism.

Rudal Shah v. State of Bihar- Prisoner had to remain many years in jail even
after the date of release.

Bhim Singh v. J.K. MLA prevented by the police from entering into legislative
session. Court direct the Government to pay Rs. 50000/- as compensation.

Saheli v. Police Commissioner-A boy died during lathy charge- Court directed
payment of Compensation.

Chandrima Das v. Railway Board- Bangladesh women gang raped by railway

officials- Court directed compensation.

WHETHER ITS OWN STATUTES BIND STATE?

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In Director of Rationing V Calcutta Corporation (1960) the Supreme Court
held that State was not bound by its penal or Taxing Statute unless there is
express or implied provisions to that effect. But Wanchoo J. criticized this
view and observed that in a society the laws of the land also bind
government by rule of law. In West Bengal V Calcutta Corporation (1967), the
S.C accepted Wanchoo's view.

GOVERNMENT'S PRIVILLEGE TO WITHHOLD DOCUMENTS?

In Duncan v. Cammel Laird Company (1942) the House of Lords held that
government has absolute privilege to withdraw documents from judicial
scrutiny. But the court reversed this rule of absolute privilege in Conway V
Rimmer (1968).

In State of U.P. V Raj Naryan (AIR 1975) the Indian Supreme Court observed
that the question whether the disclosure of a document would harm public
interest would be decided not by the Government but by the Court.
Therefore, the Government's claim of immunity could never be final; it is
subjected to the judicial scrutiny. The privilege of government has been now
diluted by the Right to Information Act 2005.

REMEDIES AGAINST ADMINISTRATIVE ACTIONS

Remedies can be:

1. Private Law Remedy. Eg Suit against Government for compensation,

injunctions, declarations etc. before ordinary civil court.

2. Public Law Remedy or Constitutional Remedy. Eg. Writs under

Articles 32 and 226, before the Supreme Court and High Court.
3. Lokpal, lokyukta, C.V.C

TYPES OF WRITS

1. Habeas Corpus
2. Mandamus
3. Quo Warranto

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 4. Prohibition
5. Certiorari

(Compared to the writ jurisdiction of Supreme Court under Art 32, the
jurisdiction of High Court under 226 is wider. Supreme Court can interfere
only for the enforcement of fundamental rights. But High Court can interfere
“for any other purpose” also.)

Who has the Locus Standi?

Old Position: Only the aggrieved party had the right to approach the court.

Present law: Public Interest Litigation (PIL) (Social Action Litigation (SAL)
in USA )Pro bono Publico (Public spirited citizen) can approach the Court for
the redressal of the grievances of the persons who cannot approach the court
due to their ignorance, illiteracy etc. Eg: M.C Mehta cases , Asiad case, etc. But
the court in Janatha Dal’s case observed that ‘’meddlesome inter lopper’’
should not be allowed to waste the precious time of the court by filing
politically motivated petitions.

OMBUDSMAN

It is machinery against ‘mal-administration.’ The institution of Ombudsman

is indented to act as a check against the abuse of power, non-exercise of
power, mal-administration, inconvenience caused due to delay, partiality,
indifference etc. Ombudsman has been found to be very effective machinery
for redressing the grievances of the citizens against the above said problems.
In some respects, it resembles the Droit Administratiff. The institution of
Ombudsman originated in Sweden in 1809 and adopted in Finland in 1919
and Denmark in 1955. Thus the institution originated in Scandinavian
countries and was known by the name Ombudsman. (In India- LOKPAL).In
England it is called ‘Parliamentary Commissioner,’ who receives complaints
from the public, conduct investigation and give report to the Government. In
Philippines, it is called Tanobyan and in Pakistan; called Wafaqui Mohtasib;
and in India it is called Lok Pal and Lokayuktha (in States). The institution is
having the powers of a civil court under CPC for the following purposes:

1. Summoning and enforcing the attendance of any person

2. Examining persons on oath

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3. Require the discovery and production of any documents

4. Receiving evidence on Affidavit

5. Issue commissions

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