Smt.SOWMYA.

K
Guest Faculty
School of Law
Manasagangotri, UOM
Mysuru.
Introduction
Administrative law is the bye-product of the growing socio-
economic functions of the State and the increased powers of the
government. Administrative law has become very necessary in the
developed society, the relationship of the administrative authorities
and the people have become very complex. In order to regulate these
complex, relations, some law is necessary, which may bring about
regularity certainty and may check at the same time the misuse of
powers vested in the administration. So Administrative law is a
branch of public law. It deals with the relationship of individuals
with the government. It determines the organisation and power
structure of administrative and quasi-judicial authorities to enforce
the law. It is primarily concerned with official actions and
procedures.

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MEANING &DEFINITIONS
 According to Ivor Jennings“Administrative Law is the law relating
to the administration. It determines the organization, powers and
duties of the administrative authorities.”
 According to Dicey “ Administrative Law as denoting that portion of
a nation’s legal system which determines the legal status and
liabilities of all state officials, which defines the rights and liabilities
of private individuals in their dealings with public officials, and
which specifies the procedure by which those rights and liabilities
are enforced.”
 According to 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.”
 According to Upendra Bakshi “administrative law as ‘that portion
of law which controls the abuse of powers by the administrative
authorities so as to protect the rights of individuals.’
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Nature and Scope of Administrative Law
Administrative Law deals with the powers of the administrative authorities, the
manner in which the powers are exercised and the remedies which are available to the
aggrieved persons, when those powers are abused by these authorities.
As discussed above, the administrative process has come to stay and it has to be
accepted as a necessary evil in all progressive societies, particularly in a welfare State,
where many schemes for the progress of society are prepared and Administered by the
Government. The execution and implementation of this programme may adversely affect
the rights of citizens. The actual problem is to reconcile social welfare with the rights of
individual subjects. As has been rightly observed by Lord Denning: “Properly exercised,
the new powers of the executive lead to the Welfare State; but abused they lead to the
Totalitarian State.”
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
powers may not be turned into arbitrary powers.
Schwartz divides Administrative Law in three parts;
1. the powers vested in administrative agencies;
2. the requirements imposed by law upon the exercise of those powers; and
3. remedies available against unlawful administrative actions.

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 The administrative law has growing importance and interest and the administrative
law is the most outstanding phenomena in the welfare state of today.
 Administrative law is not codified like the Indian Penal code or the law of Contracts.
It is based on the constitution.
 Administrative law is essentially Judge made law. It is a branch of public law as
compared to private law-relations inter-se.
 Principles of administrative law emerge and development whenever any person
becomes victim of arbitrary exercise of public power.
 The administrative agencies derive their authority from constitutional law and
statutory law.
 Administrative law relates to individual rights as well as public needs and ensures
transparent, open and honest governance, which is more people-friendly.
 Inadequacy of the traditional Court to respond to new challenges has led to the
growth of administrative adjudicatory process.
 Administrative law deals with the organization and powers of administrative and
powers quasi-administrative agencies.
 Administrative law includes the control mechanism (judicial review) by which
administrative authorities are kept within bounds and made effective.

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 Reasons for the Expansion of Administrative Law
1. Origin of welfare state
During 20th Centaury all the policies of the state should aim at maximizing welfare of the people. This lead to
increased functions of the State. Increase in functions of the states created complexities. Therefore it was necessary to develop
administrative field to cater to these increased functions.
2. Shortage of Courts
It’s a well known fact that the Indian judiciary is overburdened with the huge array of pending cases. Therefore
quasi-judicial and quasi-legislative bodies are given impetus, to reduce the already existing load on the judiciary.
3. Technical expertise of Administrative organs
Administrative action being extremely specialized, having dual nature of legislature and judiciary favors this and
helps undertake all administrative functions smoothly
4. Amalgamation of both judicial and administrative functions
Administrative organs have been created in accordance with the doctrine of separation of powers. The executive,
legislature and judiciary function separately even these organs had to coordinate to ensure smooth functioning of
Administrative law. However this led to a ruckus. Therefore Administrative action had to be evolved.
5. Mounting pressure on the Parliament and deficiency of time
The legislature provides the bare skeleton of all rules and regulation and empowers the executive to breathe life into
it by filling the requisite details.
6. Flexibility
A legislative amendment is a slow and cumbersome process. However by way of delegated legislation onto quasi-
legislative bodies these situations can be handled expeditiously.
7. Experiment
Delegation of legislation provides the executive room for experimentation. This provides for rapid utilization of
experience, talent and implementation of the changes as and when needed.
8. Emergency
In times of nation-wide emergency, quick action at the behest of the government is required to ensure minimum to
no damage to public and public property. Administrative action is the only convenient and indeed the only possible remedy.
9. Complexity of modern administration
The complexity of modern administration and the expansion of the functions of the state to the economic and social
sphere have rendered it is necessary to resort to new forms of legislation and to give wide powers to various authorities on
suitable occasions

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 Difference between Constitutional law and
Administrative Law
SL .NO CONSTITUTIONAL LAW ADMINISTRATIVE LAW

1. It describes the various organs of the It describes its motion.

government
2. The Structure of legislature and Its functioning comes under this
executive comes within this sphere. sphere.
3. It deals with the structure and broader The details of the functions are left to
rules which regulates the functions. administrative law.
4. It emphasizes individual rights. It lays down the equal stress on
public needs.
5. Constitution is a main source of Constitution, Statutes, statutory
Constitutional Law. instruments, precedents and customs
are the sources of Administrative
Law.
6. In India Constitutional Law is a It has become today “sui juris” and is
Grundnorm of the legal system in recognized as a separate independent
Country. branch of the legal discipline.

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 DROIT ADMINISTRATIF &COUNCIL D’ETAT
Droit administrative has been defined by French authorities in general terms as “the body of rules which
regulate the relations “of the administration or of the administrative “authority towards private citizens”;
Council d’Etat:
This was formed for the judicial and administrative works. This also gives suggestions or opinions to the
government in the general administrative matters. In the Council d’Etat there are four types of judicial officials- a
president, vice presidents in required number, presidents of different departments and auditeurs. There are five
departments in the Council d’Etat , There is the Department of Finance, Department of General Construction,
Social Department, Home Department and Department of Justice. The heads of these departments are called as
presidents. The main head of the Council d’Etat is the prime minister of France, in his absence, the Minister of
Justice acts as the president. The council goes into the merits of questions of law as well as fact.
Basic principles of droit administratif:
The power of administration to act ‘suo motu’ and to impose directly on the subject the duty to obey its decision.
 The power of administration to take decisions and to execute them ‘suo motu’ may be exercised only within the
scope of the law which protects individual liberties against administrative arbitrariness.
 The existence of a specialized administrative jurisdiction. One speaks of administrative jurisdiction because there
decision relate to the superior control of the counseil d’Etat either by means of appeal.
 This is principle laid down by the counseil d’Etat, that from administrative decisions. There is a right of appeal to
the counseil even where the law is silent or if it provides. That the tribunals are the final authority.
Reasons of success to droit administratif:
1) The composition and functions of the Droit administratif itself.
2) The flexibility of its ‘case law’.
3) The simplicity of the remedies available before the administrative courts.
4) The special procedure evaluated (natural process) by those courts.
5) The character of the substantive law which they apply.
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 SEPARATION OF POWERS
Meaning
The doctrine of separation of power means that separate of the organs of the
government, the legislative, executive or judicial should ever exercise the powers of the other.
It means that three departments of governments are to be separate and distinct. They are to be
independent of one another and each can exercise only the type of authority, legislative,
executive or judicial.
Origin
The origin of this principle goes back to the period of Plato and Aristotle. It was
Aristotle who for the first time classified the functions of the Government into three categories
viz., deliberative, magisterial and judicial The French Jurist Montesquieu in his book L. Esprit
Des Lois (Spirit of Laws) published in 1748, for the first time enunciated the principle of
separation of powers. That’s why he is known as modern exponent of this theory.
Montesquieu’s view
Montesquieu said that “if the Executive and the Legislature are the same person or
body of persons, there would be a danger of the Legislature enacting oppressive laws which
the executive will administer to attain its own ends, for laws to be enforced by the same body
that enacts them result in arbitrary rule and makes the judge a legislator rather than an
interpreter of law. If one person or body of persons could exercise both the executive and
judicial powers in the same matter, there would be arbitrary powers, which would amount to
complete tyranny, if the legislative power would be added to the power of that person. The
value of the doctrine lies in the fact that it seeks to preserve human liberty by avoiding the
concentration of powers in one person or body of persons. The different organs of government
should thus be prevented from encroaching on the province of the other organ.”
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 Functions of organs of the Government.
LEGISLATURE EXECUTIVE JUDICIARY
Main Functions Main Functions Main Functions
1. Law making 1. To run the Administration 1. It interprets the laws
2. Deliberative Functions 2. To perform different public 2. Protector of civil rights
3. Custodian of National Finances welfare related function 3. Decides the cases
4. Control over the Executive 3. To perform financial function 4. Custodian of
5. Constituent Functions 4. To perform diplomatic function fundamentals
6. Electoral Functions 5. To act as adviser of Member of 5. Guardian of the constitution
Parliament 6. Advisory
6. To represent country before the
foreign country

Some Additional functions Some Additional functions Some additional functions

1. Law making 1. To implement the public policy 1. To interprets the laws
2. Formulation of constitution 2. To perform defense related 2. To Protector of civil rights
3. Amendment of constitution function 3. To interpret the constitution
4. To explain & interpret the constitution 3. To perform judicial function 4. To ensure justice to all
5. Guardian of national fund 4. To perform legislative function 5. To formulate higher court
6. Perform executive function 5. To create a linkage between and subordinate court
7. Perform judicial function government & people 6. To appoint chief judge and
8. To keep control on executive department 6. To perform different public other additional judge
9. To perform election related function welfare related function 7. To ensure the probation of
10. To form public opinion 7. To act ceremonial role lodging writ
11. To criticize the executive department 8. To demonstrate political 8. To formulate speedy tribunal
12. To investigate different national issue leadership for special case
13. To take action on different political crisis 9. Ordinance making power 9. To adjudicate the disputes.
14. To grab public sentiment Influence of executive

10
Smt.SOWMYA.K, School of law, Mysore
Separation of Powers in India
On a casual glance at the provisions of the Constitution of India, one may be
inclined to say that the doctrine of Separation of Powers is accepted in India. Under the
Indian Constitution, executive powers are with the President, legislative powers with the
Parliament and judicial powers with the Judiciary (Supreme Court, High Courts and
subordinate courts). The President holds his office for a fixed period. His functions and
powers are enumerated in the Constitution itself. In India, the executive is part of the
legislature. Parliament is competent to make any law subject to provisions of the
Constitution and there is no other limitation on its legislative power. It can amend the law
prospectively or even retrospectively but it cannot declare a judgment delivered by a
competent court void or of no effect. The Parliament has also inherited all the powers,
privileges and immunities of the British House of Commons. Similarly, the Judiciary is
independent in its field and there can be no interference with its judicial functions either
by the Executive or by the Legislature. The Supreme Court and High Courts are given the
power of judicial review and they can declare any law passed by Parliament or
Legislature ultra virus or unconstitutional.
❖ A.K .Roy v/s Union of India [ 1982 ]
It was held that “ The President or the Governor has the power to grant pardon
(Articles 72 and 161) The legislature performs judicial function while committing for
contempt those who defy its orders or commit breach of privilege (Articles 105 (3) 194
(3) Thus, the executive is dependent on the Legislature and while it performs some
legislative functions such as subordinate it, also performs some executive functions such
as those required for maintaining order in the house.”
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❖ Ram Jawaya v/s State of Punjab,[1955]
In this case Mukherjea, J.held that “The 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 very well be said that our Constitution does not contemplate
assumption, by one organ or part of the State, of functions that essentially belong to
another.”
❖ Keshanand Bharti v/sState of Kerala, [1973 ]
It was held that “ None of the three of organs of the Government can take over
the functions assigned to the other organs.”
❖ State of Bihar v/s Bihar Distillery Ltd., [1997 ]
In this case the Supreme Court held that the judiciary must recognize the
fundamental nature and importance of the legislature process and must accord due
regard and deference to it. The Legislative and Executive are also expected to show due
regard and deference to the judiciary. The Constitution of India recognizes and gives
effect to the concept of equality between the three organs of the Government. The
concept of checks and balance is inherent in the scheme.
❖ Indira Nehru Gandhi v. Raj Narain[1975]
It was held that a rigid sense of separation of powers which has been given under
the American and Australian constitution does not apply to India. “The separation of
power is a part of the basic structure of the constitution.

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 RULE OF LAW
Introduction:
Dicey evolved the concept of Rule of Law while he was delivering lectures to the law
students in Oxford University, England. The concept of Rule of Law can be traced from the
time of the Romans, who called it ‘Just Law’, to the Medieval period where it was called the
‘Law of God.’ The social contractualists, such as Hobbes, Locke and Rousseau, called the
Rule of Law as the Natural Law.
Meaning
According to Dicey, “the Rule of Law is one of the fundamental principles of the
English Legal System.” In his book, ‘The Law of the Constitution’, he attributed the
following three meanings to the said doctrine:
1. Supremacy of law;
2. Equality before law; and
3. Predominance of legal spirit.
1. Supremacy of law: Explaining the first principle, Dicey stated that rule of law means the
absolute supremacy or predominance of regular law as opposed to the influence of arbitrary
power or wide discretionary power. It excludes the existence of arbitrariness, of prerogative
or even wide discretionary power on the part of the Government.
2. Equality before law: Dicey stated that there must be equality before the law or the equal
subjection of all classes to the ordinary law of the land administered by the ordinary law
courts.
3. Predominance of legal spirit: Dicey emphasized the role of the courts of law as guarantors of
liberty and suggested that the rights would be secured more adequately if they were
enforceable in the courts of law than by mere declaration of those rights in a document, as in
the latter case, they can be ignored, curtailed or trampled upon.

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Basic Principles of the Rule of Law
1. Law is Supreme, above everything and every one. No body is the above law.
2. All things should be done according to law and not according to whim
3. No person should be made to suffer except for a distinct breach of law.
4. Absence of arbitrary power being hot and sole of rule of law
5. Equality before law and equal protection of law
6. Discretionary should be exercised within reasonable limits set by law
7. Adequate safeguard against executive abuse of powers
8. Independent and impartial Judiciary
9. Fair and Justice procedure
10. Speedy Trial
Rule of Law under Indian Law
The following are the important features we can find in Indian system of Rule of Law.
1) Supremacy of the Constitution.
2) Constitutional requirement of equality.
3) Constitutional guarantee and judicial enforcement of rights.
4) Rule of Law as a Legal Concept.
5) Rule of Law as a feature of basic structure.
6) Elimination of arbitrariness & not of discretion.
7) Compliance with the requirement of law
8) Fairness in action.
9) Public interest in security of social welfare.
10) Exclusion of creamy layer.
11) Pervasiveness of the concept of rule of law.

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❖ Kesavanand Bharati v/s State of Kerala
In this case the view was that the Rule of Law is a basic intent of the ‘Constitution
apart from democracy.
❖ In Indra Gandhi v/s RAJ Narain.
In this case Mathew. J. observed that “The rule of law postulates the pervasiveness of
the spirit of law that throughout the whole range of government is the sense of excluding
arbitrary official action in the sphere….. The provisions of the Constitution were enacted
with a view to ensure the rule of law.”
❖ S.G. Jaisinghani v/s Union of India and others, [1967]
The Supreme Court held that“ The absence of arbitrary power is the first essential of
the rule of law upon which our whole constitutional system is based. If a decision is taken
without any principle or without any rule it is unpredictable and such a decision is antithesis
of a decision taken in accordance with the rule of law”.
❖ Supreme Court Advocates on Record Association v/s Union of India, [1994]
Supreme Court held that “For the rule of law to be realistic there has to be rooms for
discretionary authority within the operation of rule of law even though it has to be reduced to
the minimum extent necessary for proper, governance, and within the area of discretionary
authority, the existence of proper guidelines or norms of general application excludes any
arbitrary exercise of discretionary authority.”
❖ Veena Seth v/s State of Bihar [1983 ]
In this case the Supreme Court extended the reach of the Rule of Law to the poor and
the downtrodden, the ignorant and the illiterate, who constitute the bulk of humanity in
India, when it ruled that the Rule of Law does not exist merely for those who have the means
to fight for their rights and very often do so for the perpetuation of the status quo, which
protects and preserves their dominance and permits them to exploit a large section of the
community.
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 Administrative Tribunal
Administrative tribunals are agencies created by specific enactments. Administrative adjudication is term
synonymously used with administrative decision making. The decision-making or adjudicatory function is exercised
in a variety of ways. However, the most popular mode of adjudication is through tribunals.
Administrative Tribunals Act owes its origin to Article 323-A of the Constitution which empowers Central
Government to set-up by an Act of Parliament, Administrative Tribunals for adjudication of disputes and complaints
with respect to recruitment and conditions of service of persons appointed to the public service and posts in
connection with the affairs of the Union and the States.
The 42nd Amendment to the Constitution introduced Part XIV-A which included Article 323A and 323B
providing for constitution of tribunals dealing with administrative matters and other issues. According to these
provisions of the Constitution, tribunals are to be organized and established in such a manner that they do not violate
the integrity of the judicial system given in the Constitution which forms the basic structure of the Constitution.
The main characteristics ofAdministrative Tribunals are as follows:
❑ Administrative Tribunals is the creation of a statute.
❑ An Administrative Tribunals is vested in the judicial power of the State and thereby performance quasi-judicial
functions as distinguished form pure administrative functions.
❑ Administrative Tribunals is bound to act judicially and follow the principles of natural justice.
❑ It has some of the trapping of a court and are required to act openly, fairly and impartially.
❑ An administrative Tribunal is not bound by the strict rules of procedure and evidence prescribed by the civil
procedure court.
Advantages of the tribunal:
o Appropriate and effective justice.
o Flexibility
o Speedy
o Less expensive
Limitations of the Tribunals:
➢ The tribunal consists of members and heads that may not possess any background of law.
➢ Tribunals do not rely on uniform precedence and hence may lead to arbitrary and inconsistent decision.
❖ Associated Cement Co. Ltd. v. P.N. Sharma,
“the basic and the fundamental feature which is common to both the courts and the tribunals is that they
discharge judicial functions and exercise judicial powers which inherently vest in a sovereign State.”

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