Distinction between Administrative Powers

• Administrative power is the power to administer or enforce

a law.  Administrative powers can be executive, legislative,
or judicial in nature.  Administrative power intends to carry
the laws into effect, practical application of laws and
execution of the principles prescribed by the lawmaker.
• In Robertson v. Schein, 305 Ky. 528 (Ky. 1947), it was
observed that the authority to make rules and regulations to
carry out a policy declared by the lawmaker is
administrative and not legislative. 
• In the case of Secretary of Agriculture v. Central Roig
Refining Co., 338 U.S. 604 (U.S. 1950), the power of an
administrative agency to make rules to carry out a policy is
administrative in nature.  The issue of an administrative
body’s authority presents a question of law and not a
question of fact
• Powers and functions of administrative agencies are
interchangeable that means administrative powers can be
executive, legislative, or judicial in nature.  These
agencies are vested with the responsibility to interpret
guidelines consistently in order to avoid arbitrary and
capricious results.  Administrative agency decisions can
be reversed as arbitrary or capricious if the decisions lack
fairness and if it fails to indicate any course of reasoning
and the exercise of judgment.
Difference between Legislative and
judicial actions
• Saint Augustine remarked in his book The Confessions
that he understood time until someone asked him to
explain it.' That legislative and judicial power are
conceptually distinct may seem obvious, but explaining
the difference between them is not so easy.
• Legislation is formulation of general rules which are to
be operative in future. There is generality about the
application of legislative provisions. Legislation gives
new right or disability. Law-making is the formulation of
new policy.
• Judicial function is contradictory to legislative function
is particularly based n the facts of a case and declares a
pre-existing right.
• A judicial action is taken on hearing the parties and after
examining the evidence. But this is not so in case of
legislative action.
 There are two possible theories of the difference between the
legislative and judicial powers referred to by the Constitution,
and that both of them have surprising implications.
1. According to one view, the difference between the two powers
is wholly structural, in that it depends entirely on the functions
of government institutions. This account regards the difference
between legislative and judicial power as the difference between
the power to make legal rules and the power to apply them.
• The surprising implication is that although the powers differ in
the form through which they are exercised, the legislative power
can bring about any legal effect and the judicial power can bring
about, including the alteration of legal positions established by
prior litigation. Some legal effects, however, can be achieved
only by legislation. If the two powers are understood wholly
structurally, the judicial power amounts to a sub-part of the
legislative power.
2. According to other view, the difference between the two
powers is substantive in that the legislative power is limited
in its operation with respect to some legal interests but not
others. On this account, the limits of legislative power
relative to judicial power are marked by legal interests that
legislation may not change but that may be operated on by
judicial power pursuant to preexisting rules. Some rights are
vested. Those rights are identified, not by distinguishing
between making and applying rules, but on other grounds.
Difference between Legislative and
administrative actions
• It is difficult in theory and impossible in practical to make
distinction between Legislative and administrative actions.
• But Committee on the Minister’s Power distinguished
between administrative and legislative action on the ground
that where the former is the process of performing
particular acts or of making decisions involving the
application of general rules to particular cases, latter is the
process of formulating general rule of conduct without
reference to particular cases and usually for future
operation.
• In the case of State of Haryana v. Ram Kishan, 1988, the
action of pre-mature termination of a mining lease was
held to be administrative, while in Union of India v.
Cynamide India Ltd, 1987, price fixation was held to be
legislative function. In this case, Supreme Court held
that “With proliferation of delegated legislation, there is
tendency for the line between legislation and
administration to vanish into an illusion.”

Administrative Actions
• The executive has only delegated
legislative powers.
• The legislative power of executive is
flexible.
• It functions according to its present
day needs.
• The legislation made by executive
supplement the supreme legislation,
but it cannot supplant it.
• Griffith and Street propounded two
tests-
- i) Institutional test;
- (ii)The rest is administrative.
- (iii) Specific cases.
The power is given to executive to
meet the ‘specific circumstance’ and
‘specific case’ and the rule made by
such executive called executive
power.
Legislative Actions
• The Parliament has the supreme
legislative power.
• The legislative power of Parliament is
rigid.
• It looks to future.
• The legislation made by Parliament
and State Legislatures always superior
than the administrative legislation.
• Griffith and Street propounded two
tests-
- (i) Institutional test-
• Whatever is enacted by the Legislature
is ‘legislation’.
- (ii) General application-
• The legislature is empowered for the
purpose of ‘general application’, and
such act or rule is called legislative
rule.
 Administrative Actions
• If a legislation made by
administrators is against the
fundamental rights and against the
principles of natural justice, such
legislation can be quashed by Courts
by writ of Certiorari.
• Administrative powers can easily be
delegated and also sub-delegated.
• Administrator has to give reasons for
their decisions to the parties
concerned, and mainly to their
higher officers.
• All administrative actions need not
be published.
• Generally, if an exemption or favor
is made in favor of an individual it is
administrative in nature.
Legislative Actions
• Legislation made by the
Parliament cannot be interfered
by Courts.
•  In rarest cases only sub-
delegation of legislative powers
can be made by Parliament.
• The legislation need not give
reasons. However, in every Act,
the objects and reasons are
explained.
• All legislations shall necessarily
be published
• Generally, if an exemption or
favor is made in favor of class of
people or entire area it is
legislative in nature.
 Administrative Actions Legislative Actions

• In administrative orders, there is • In legislative actions, principles of

need to follow the principles of natural justice are not required to be
natural justice. followed.
• Duty to give reason is must. • Duty to give reason is not must.
Distinction between Judicial, quasi-
judicial and administrative actions.
• On the basis of following four requisites, a distinction is
made between judicial, quasi-judicial and administrative
actions-
- Presentation of case.
- If the dispute is a question of fact, the ascertainment of
fact by means of evidence given by the parties.
- If the dispute between them is a question of law, the
submission of legal arguments by the parties.
- A decision which disposes of the whole matter by
applying thee law to the facts.
• A Quasi-judicial action involves all four determinants.
• A quasi- judicial action involves the first two
determinants. It may or may not involve the third one but
never involves the last one.
• In the case of administrative action, there is no legal
obligation to consider and weighs submissions and
arguments and or to collect any evidence or to solve any
issue. The grounds upon which the action to be based
and the procedure according to which the action is to be
taken are left entirely for determination to the discretion
of the authority concerned.
Differences between Judicial Functions
and Quasi-judicial Functions
 Judicial Functions
• As lies inter parties (a dispute
between two parties) is an
essential characteristic feature
of judicial function.
• The evidence shall be taken on
oath.
• The rules of evidence, Civil
Procedure Code, etc. are strictly
followed.
• The Court fee, as per rules, are
required to be paid.
• The doctrines of precedents,
stare decisis etc. shall strictly be
followed.
Quasi- Functions
•  A lis inter parties is not an
essential characteristic feature of
quasi-judicial function.
• The evidence is not taken on oath.
• The rules of evidence, C.P.C.,
Cr.P.C. etc. are not strictly
followed.
• Court fee is not required to be paid.
• These doctrines are not followed
strictly.
 Quasi- Functions
Judicial Functions

•  No man a judge in his own case. • Sometimes, it may be relaxed here.
This maxim is strictly followed. • It is only a trapping of a court, but in
• The court is the real forum of reality it is not a court.
judicial proceedings.
Difference between Administrative
and quasi-judicial Functions
• There is a very thin line of difference between a Quasi-
Judicial Act and an Administrative Act. However, the
difference is important to understand as the nature of the
act performed by the Statutory Authority would
determine the rules that are to be followed. In absence of
a lis, the only thing separating a Quasi-Judicial Act and
an Administrative Act is the judicial procedure that is to
be mandatorily followed in a Quasi-Judicial Act.
 Quasi-Judicial Act

• The dictionary meaning of the word quasi is “not exactly”.

Thus ‘quasi’ is something in between a Judicial and an
Administrative Function. In many cases, the Administrative
Authorities have been held be ‘quasi-judicial’ where there are
two contending parties and the authority-in-charge is
responsible to decide the rights of the parties. This definition
has also found favour in Cooper v. Wilson, (1937) 2 KB 309,
wherein it was held that-

“The definition of a quasi-judicial decision clearly suggests

that there must be two or more contending parties and an
outside authority to decide those disputes.”
• Thus presence of a lis or two rivaling parties is a must in such
cases to hold the statutory authority as a quasi-judicial authority.
However, what would happen where there is no lis or rivaling
parties before the authority. Such a situation has been dealt with
in R v. Dublin Corporation, (1878) 2 Ir R 371, wherein the
meaning of the term ‘judicial’ was expounded. The Court said that
the term ‘judicial’ does not necessarily mean acts of a Judge or
legal tribunal sitting for the determination of matters of law, it may
also be an act done by a Statutory Authority by Application of
Mind and imposing liability of any kind or affects rights of the
party in question.

• Similarly, in R v. Electricity Commissioners, (1924) 1 KB 171, it

was held that any legal body, that has authority to affect rights of
the parties and has an obligation to act wisely and judicially by
making an enquiry of some kind, could be termed as a Quasi-
Judicial Body and any such act done by that body is a Quasi-
Judicial Act.
• The Hon’ble Supreme Court in the case of Province of Bombay v.
Khushaldas S. Advani, AIR 1950 SC 222, contemplated two situations
relating to quasi-judicial acts:

1. If there is a Statutory Authority that decides disputes between two parties

who oppose each other, determines their respective rights and has a duty to
act judicially, then decision of such an Authority is a Quasi-Judicial Act.

2. If there is a single party approaching a Statutory Authority that has the power
to prejudicially affect that party and the contest is between the authority
proposing to do the act and the party opposing it, then also the Final
Determination of the Statutory Authority, if it acts judicially, will be Quasi-
Judicial Act.

Thus we see that presence of a lis is sufficient to hold an act of a Statutory

Authority as a Quasi-Judicial Act and even in absence of a lis, the said
Authority would be a Quasi-Judicial Authority if it is required to act judicially.
 Administrative Act

• Before moving further, let us understand what an Administrative Act is. The

Black’s Law Dictionary (8th Edition) defines ‘Administrative Act’ as:

• “An act made in a management capacity esp., an act made outside the actor’s
usual field (as when a judge supervises court personnel). An Administrative Act is
often subject to greater risk of liability than act within the actor’s usual field.”

• The abovementioned definition describes the technical aspects of

an Administrative Act (E.g. Chief Engineer of a Government Department
performs administrative functions when he/she invites Tender for purchase of
certain equipments). What is important to remember is that an Administrative
Act is purely guided and dictated by policy and expediency whereas a quasi-
judicial function is required to be performed according to the rules. Another
important distinction is that a Quasi-Judicial Authority must act judicially i.e. the
Authority must make an enquiry by following the relevant procedure before
arriving at a decision.
• The duty to act judicially is not sacrosanct in performance
of an Administrative Act. The only responsibly while
discharging an administrative function is to follow
the Principles of Natural Justice unless the Statute
especially prohibits so. In State of Orissa v. Binapani Dei,
(1967) 2 SCR 625, the Hon’ble Supreme Court
categorically stated that an Administrative Order which
involves civil consequences must be made consistently
with the Principles of Natural Justice.