12/30/2020 Introduction to Administrative Law

Introduction to Administrative Law

By Sayjal Deshpande | January 15, 2020 3 Comments

Introduction to Administrative Law | Overview

History
Droit Administratif
Meaning and Definitions
Nature of Administrative Law
Classification of Administrative Law
Need and Importance of Administrative Law
Constitutional and Administrative Law in India
Control on Administrative Law

This article is a brief Introduction to Administrative Law that talks about the origins and how its evolution
came into being. It analyses some definitions of the subject given by many famous thinkers.

History

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The oldest use of Administrative procedures was referred to as “inquest” or “inquisitions”, which
for the Romans meant simply, investigation.[1] In the Magna Carta which was the first Charter
that talked about rule of law, procedures and balance of powers during a monarchial rule of the
King, there existed a clause that stated “Writ of Inquisition of Life or Limb” and that it “must be
granted freely and not denied”.[2]

It grew through the influence of a lot of various forces like external being the social and economic forces
and internal being the rigid and resolute frameworks that served older systems, conditions and
institutions but were inefficient to serve the developments of the new world.

The relative and social necessity were felt when demands like that of regulation of industries when the
abuse of it became visible to the people. Thus, the need for control and check developed, which in turn
increased the functions and the pressure on the government, giving increased powers to the executive
and thus the legislative output increased.

Slowly and gradually, from one power, for instance, that of railroad commissions to much larger scope
and power, the role of administrative agencies kept increasing and their extensions into the fields such as
regulation of public utilities and securities etc. grew.

Droit Administratif

Droit Administratif is the French Administrative law which is considered widely popular and old,
through which many administrative provisions in other countries have been influenced from.
Napoleon Bonaparte founded the “Droit Administratif” and formed the Conseil d’Etat.

He also passed a law restricting the jurisdiction of courts on administrative subjects. The thre e main
fe ature s of the Droit Administratif (as given by Waline) are as follows:

the power of administration to act suo moto and impose directly on the subject the duty to obey
its discretion;
the power of the administration to take decisions and to execute them suo moto may be
exercised only within the ambit of law which protects individual liberties against administrative
arbitrariness
the existence of a specialized administrative jurisdiction

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Dicey was a critic of the Droit Administratif due to two reasons- firstly because the government and every
servant of it is a representative of the nation and holds some special rights, privileges that are not the
same as every other citizen of the country.

Thus, unlike in French law, an individual’s relation with the State is not on the same level as the
interaction between two ordinary individuals. And secondly, that the government should not be bound by
restrictions by the ordinary courts and must be free of their jurisdiction. Therefore, Dicey sought that
such a system is inapplicable to English Law.

Meaning and Definitions

There are diverse definitions and notions of administrative law, but there remain some key aspects that
are a common point between all the interpretations. These are: firstly, it is concerned with the manner
of exercising governmental powers and se c ondly, that any definition of administrative law needs to
focus on the basis of function or a substantial purpose for which it exists, for example, the control of
governmental powers.

According to Dr F.J. Port- “Administrative law is made up of all these legal rules either formally
expressed by statute or implied in the prerogative- which have as their ultimate object the
fulfilment of public law.

It touches first the legislature, in that the formally expressed rules are usually laid down by that body; it
touches judiciary, in that (a) there are rules which govern the judicial action that may be brought by or
against administrative person, (b) administrative bodies are sometimes permitted to exercise judicial
powers: thirdly, it is of course essentially concerned with the practical application of Law.”

Sir Ivor Je nnings, a prominent British lawyer and academic who wrote popular books like “the law and
the Constitution”, defines administrative law as “the law relating to administration. “He believes it
determines the organization, powers and the duties of administrative authorities.

This formulation does not differentiate between administrative and constitutional law.[3] Massey
criticises the definition of Jennings since it neglects to separate administrative and constitutional law. It
lays more importance on the association, power, and obligations to the prohibition of the way of their
activity.

As such, this definition doesn’t give significance to the administrative procedure, for example, the way of
organization basic leadership, including the standards, strategies, and principles it ought to conform to.

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Thus Massey gives a broad and comprehensive definition “ Administrative law is that branch of public law
which deals with the organization and powers of administrative and quasi administrative agencies and
prescribes the principles and rules by which official action is reached and reviewed in relation to
individual liberty and freedom”[4]

Dicey like Jennings belongs to that group of English writers who did not recognize the independent
existence of administrative law. According to Dic e y’s formulation ‘Firstly, it (administrative law)
relates to that portion of a nation’s legal systems which determines the legal status and liabilities of all
state officials. Se c ondly, defines the rights and liabilities of private individuals in their dealings with
public officials. Thirdly, specifies the procedures by which those rights and liabilities are enforced.’ [5]

Austin has defined, it as the law “which determines the ends and modes to which the sovereign power
shall be exercised.” In his view, the sovereign power shall be exercised either directly by the monarch or
indirectly by the subordinate political superiors to whom portions of those powers are delegated or
committed in trust.

Schwartz has defined it as “the law applicable to those administrative agencies, which possess delegated
legislation and adjudicative authority.’ This definition is a narrower one. Among other things, it is silent as
to the control mechanisms and those remedies available to parties affected by administrative action.

Administrative law is other than encompassing all parts of government, administrative and quasi-
administrative offices i.e., companies, commissions colleges and now and then even private associations.
Early English authors didn’t separate amongst administrative and constitutional law and subsequently,
the definition they supported was progressively wide and general.

Nonetheless, administrative law might be characterized as that part of public law that manages the
organization of administrative and quasi- administrative agencies and recommends standards and rules by
which an official activity is checked and inspected in connection to individual freedom and liberty.

The Administrative law manages division and composition of powers of various organs of organization,
the framework that the administrative authorities and specialists will follow in the workings of their
power and the different methods of control including especially legal review over the various types of
powers practised by the administrative authorities.

In short, the administrative law deals with the power, especially quasi- judicial and quasi- legislative of
administrative authorities alongside their official executive powers and control.

Nature of Administrative Law

Frie dman’s view on the nature of Administrative law is widely accepted and includes 5 points as follows:
[6]

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it includes the legislative powers of the administration, both at common law and under the
statute
the administrative powers of administration under both common law and statutes
the judicial and quasi-judicial powers all under statutory provisions
the legal liability of public authorities
the powers of the ordinary courts to supervise the administrative authorities

C lassification of Administrative Law

Due to the wide powers of administrative law, it has a classification in itself that determines the scope of
the power various branches under the ambit of administrative organization, have jurisdiction over specific
subjects. Thus, administrative action is classified into four categories:

1. Quasi- legislative action – Which refers to the sub-ordinate legislative powers that the
Legislature delegates to the administrative agencies. The legislature gives limited powers and
specifies the extent to which they can be exercised while delegating this power, and the
ultimate authority rests with the Legislature on any actions or decisions taken by them.
2. Quasi- judicial action – Which refers to the administrative agencies that exercise
adjudicatory power that has been delegated to them by the Judiciary. The scope of this also
covers certain administrative actions like disciplinary proceedings for instance, that require
judicial interference, and such can be performed by these quasi-judicial bodies.
3. Purely Administrative action – also referred to as rule application, is the residuary action
that is neither quasi-legislative or quasi-judicial but requires the full exercise of administrative
action, that is not general and differs from case to case. Administrative action follows the
natural justice laws.
4. Ministerial action – the only difference between purely administrative and ministerial action
is that under the administrative action, agencies have enough discretionary powers to make
changes and give decisions according to specific situations that arise, whereas, in the latter,
there is no space provided for exercising individual discretion instead, they have to follow the
set, defined procedure and duties.

Need and Importance of Administrative Law

The law commission in its XIVth Re port explicitly mentions the reason why administrative law grew
exponentially and its need in the current scenario as follows: “Society in the 20th century has become
exceedingly complex and governmental functions have multiplied. The change in the scope and
character of the Government from negative to positive, that is, from the laissez- faire to the public service

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state has resulted in the concentration of considerable power in the hands of the executive branch of
Government.”

Due to these changes and evolution of societies, the interaction between the citizens and administrative
bodies has increased, as it has the power to influence the rights and liberties of the people. It evolves
new processes and innovative techniques by creating specializations, that have the expertise to deal with
any new nature of problems that arise, to ensure the maximum welfare of the people.

As the administrative agencies possess certain discretionary powers, they have the right to change or
amend unsuitable or irrelevant rules without much delay in dealing with the problems that come to
them, by handling them individually. They have this flexibility unlike the legislature or judiciary have.

In brief, administrative agencies have a very wide, extensive and diverse character as they make policies,
provide leadership and support to the legislature, execute and administer the law, make varied decisions
regarding the problems put in front of them.

They not only exercise the traditional functions of administration but the other upcoming functions that
are needed as well by exercising legislative power and issuing a plethora of rules, bye- laws and orders of
various types.

C onstitutional and Administrative Law in India

In the Constitution of India, Article 245 and 246 provide for the legislative powers to be discharged by the
Parliament and State legislature. The delegation of these powers not specifically stated although it was
eventually considered inevitable to occur. Further Articles 13(3)(a) talks about the ordinances, order- by-
law, rule, regulation, notification etc all that is included under the law.

The distinction between administrative and constitutional law is considered important but their
provisions overlap in many situations. Administrative law is considered public law that governs the
relationship between government and public, and this is similar to the goals of the Constitutional law,
thus irrespective of their differences, they share common features.

‘The Constitutional law describes the various organs of government at rest, while administrative
law describes them in motion”

But, Constitutional law that includes the fundamental rights and duties to ensure life and liberties of
citizens, being the Supreme law of the land, it supersedes the administrative law in certain situations.
Administrative law doesn’t provide rights but provides the procedure to implement these rights ensured
through providing principles, rules and remedies.

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C ontrol on Administrative Law

The check and control on administrative law is performed by the courts through Judicial review. There
are certain remedies that the courts can provide in situations where administrative discretion has been
abused or used ultra vires.

The power that the courts can exercise is as follows:[7]

Annulment of Administrative decisions – which can be done on the grounds of legality

Declaration of the rights of persons under full jurisdiction
Giving interpretations of administrative laws especially in civil matters
Punishment of administrative crimes

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