Administrative Law

Discuss meaning, nature, development and scope of Administrative Law

Ans: - Administrative law is a branch of law that deals with the powers, duties and responsibilities
of various organs of the state. Administrative law does not have one universal definition.

➢ K. C. Davis defines Administrative Law is the law concerning the powers and procedures of
administrative agencies, including especially the law governing the judicial review of
administrative action.
➢ Lvor Jennings defined administrative law as the law relating to administration. It determines
the organization, powers and duties of administrative authorities.

• Administrative law is a field of public law. It deals with the relationship of individuals with the
government. It defines the organization and powers of the administrative and judicial
authorities necessary to implement the law. It mainly concerns official activities and
procedures and establishes a control mechanism to keep boards within limits. However, the
Administrative Law is not codified law. It is a court-made law that has evolved over time.
• Administrative law is the law governing the Executive, to regulate its functioning and protect
the common citizenry from any abuse of power exercised by the Executive or any of its
instrumentalities.
• It is a new branch of law which has evolved with time and shall continue to evolve as per the
changing needs of the society.
• The aim of administrative law is not to take away the discretionary powers of the Executive
but to bring them in consonance with the ‘Rule of law’.

Historical Growth, Development & Sources of Administrative Law

Administrative law has been characterized as the most outstanding legal development of the
20th century.
It does not mean, that there was no administrative law in any country before the 20th century.
Being related to public administration, administrative law should be deemed to have been in
existence in one form or another in every country having some form of government.

1) ENGLAND In 1885, British jurist Albert Venn Dicey rejected the whole concept of
administrative law. Therefore, many legal discretions granted to the executive and
 administrative authorities and their control were ignored so that legal thinkers could form a
separate field of law.
Until the 20th century, administrative law was not accepted as a separate field of law. The
existence of Administrative Law was recognized only later.
In 1929, Lord Donoughmore's Committee recommended better publication and control of
inferior legislation. The principle that the king should do no wrong was repealed and the scope
of the Crown Proceedings Act was extended by the Crown Proceedings Act 1947, which allowed
civil proceedings to be brought against the Crown as against any private person.
In 1958, the Law on Courts and Inquiries was approved for better control and monitoring of
administrative decisions. Breen v Amalgamated Engineering Union [1971] 2 QB 175 was the
first case to state the existence of administrative law in the UK.

2) In USA- In the United States, the existence and growth of administrative law was ignored
until it grew into a fourth branch of the state. By then, many legal scholars such as Frank
Goodnow and Ernst Freund had already written a number of books on administrative law.
In 1933, a special commission was formed to determine how to exercise judicial control over
public authorities. After that, in 1946, the Administrative Jurisdiction Law was passed, which
regulated the judicial review of administrative actions.
In the UK, since there is no written Constitution, the bulk source of administrative law is derived
from the decisions delivered by the superior courts, the customary practices that are followed
in the course of administration and so on.

3) India
The Maurya’s and Gupta’s of ancient India had a centralized government system.
With the advent of the British, some changes were made in the Indian Administrative Code.
In British India, laws were passed to regulate administrative activities. India became a welfare
state after independence, which continued to expand state activity. As the activities and powers
of government and administrative authorities increased, the need for “rule of law” and “legal
control of state activities” grew.
Henceforth, if the rules, regulations and orders issued by the administrative bodies are found
outside the legislative competence of the authorities, such rules, rules and regulations will be
declared extreme, unconstitutional, illegal and void.
Reasons for Growth of Administrative Law Administrative law is considered as an intensive
form of government. It deals with the pathology of functions. The functions that are discharged
by the administrative authorities differ from time to time depending upon the changes in socio-
economic conditions in any nation.
The following factors are responsible for the rapid growth and development of administrative
law:

1. The concept of a welfare state: -As the States changed their nature from laissez-faire to that
of a welfare state, government activities increased and thus the need to regulate the same. Thus,
this branch of law developed.

2. Urbanization - Due to the Industrial Revolution in England and other countries and due to the
emergence of the factory system in our country, people migrated from the countryside to the
urban areas in search of employment in factories and large-scale industries. As a result of which
there arose a need for increase in providing housing, roads, parks, effective drainage system etc.
Legislations were enacted to provide all these basic facilities and accordingly administrative
authorities were required to make rules and regulations, frame schemes for effective infrastructure and
facilities which ultimately lead to the growth of administrative law.

3. To Meet Emergency Situations – Enacting legislations, getting assent from the President is all a lengthy
process, whereas it is very easy and quick to frame schemes and rules to meet any
exigency that arises in a locality.

4. The inadequacy of legislature - The judicial system proved inadequate to decide and settle all types
of disputes. It was slow, costly, inexpert, complex and formalistic. It was already overburdened, and it
was not possible to expect speedy disposal of even very important matters, e.g. disputes between
employers and employees, lockouts, strikes, etc.

5.Scope for the experiment: - As administrative law is not a codified law there is a scope of
modifying it as per the requirement of the State machinery. Hence, it is more flexible. The rigid
legislating procedures need not be followed again and again.

Nature & Scope of Administrative Law

• Administrative law is not a codified, written or well-defined law like the Contract Act, Penal
Code, Transfer of Property Act, Evidence Act, Constitution of India, etc. It is essentially an
unwritten, uncodified or ‘Judge-made’ law.
• It has developed slowly in the wake of factual situations before courts.
• In a welfare State, administrative authorities are called upon to perform not only executive
acts, but also quasi-legislative and quasi-judicial functions.
1. Branch of Public Law: Administrative law is a branch of public law that focuses on the legal
principles and rules governing the activities of administrative agencies. These agencies are
established by the government to administer and implement laws and policies in various
areas such as taxation, healthcare, transportation, environment, and more.

2. Regulates Administrative Agencies: Administrative law defines the organization, powers,

functions, and procedures of administrative agencies. It sets out the legal framework within
which these agencies operate, ensuring that they act within their delegated authority and in
accordance with the law.

3. Balancing Power: Administrative law seeks to strike a balance between the need for
administrative efficiency and the protection of individual rights and freedoms. It aims to
prevent abuse of power by administrative agencies while allowing them the necessary
authority to carry out their functions effectively.

4. Rule-Making and Rule Application: One of the central aspects of administrative law is the
process of rule-making by administrative agencies. These agencies have the authority to
create rules and regulations to implement statutes and policies. Administrative law also
governs the application of these rules, ensuring fair and consistent decision-making.

5. Dispute Resolution: Administrative law provides mechanisms for resolving disputes between
individuals and administrative agencies. It typically involves administrative tribunals or
specialized courts that have jurisdiction to hear and decide on administrative matters. These
bodies offer an alternative to traditional courts and provide expertise in the subject matter
of the disputes.
Scope of Administrative Law - The main object of this law is to protect individual rights
1. Existence of various administrative bodies- such as, Wage-board, Central Board of Revenue,
Commission of Inquiry and Advisory Boards, Tariff Commission, etc.
2. Rulemaking power of administrative agencies- i.e. delegated legislation; safeguard against
abuse of power and judicial control.
3. Judicial functions of administrative agencies like Administrative tribunalsi.e., claims
Tribunals Industrial Tribunal, the Income Tax Appellate Tribunal performing judicial
functions.
4. Remedies- Various remedies like writs of Mandamus, Certiorari, Prohibition etc., injunction,
declaration etc. are available to prevent excess any abuse of power.
5. Procedural guarantees- The concept of procedural guarantee include the rules of nature
justice.
6. Government Liability- The Union and State Governments are liable under torts as well as
control for the wrongs committed by their servant and agents.
7. Public Corporation- It includes liability ad legal responsibility of public corporation.
 Definition of Administrative Law
• It is indeed difficult to evolve a scientific, precise and satisfactory definition of Administrative
Law. Many jurists have made attempts to define it, but none of the definitions has completely
demarcated the nature, scope and content of administrative law. Either the definitions are
too broad and include much more than necessary or they are too narrow and do not include
all essential ingredients.
• In administrative law, the term Administration is used in its broadest possible sense and
covers within its reach.
1) All executive actions, its programs and policies
2) All administrative aspects of parliament and judiciary
3) All actions of state like actors (agency and instrumentality of state)
4) All actions of non-state actors (private entities) exercising public functions.

1. Sir Ivor Jennings defines administrative law as the law relating to administration.
It determines the organization, powers and duties of administrative authorities. This formulation
does not differentiate between Administrative and Constitutional law. It lays entire emphasis on
the organization, power and duties to the exclusion of the manner of their exercise.
2. A.V. Dicey- He did not recognize the independent existence of administrative law.
• He defined 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.
• The definition is narrow and restrictive in so far as it leaves out of consideration many
aspects of administrative law, Dicey opposed the French droit administratiff and
therefore his formulation mainly concentrated on judicial remedies against state officials.
Therefore, this definition excludes the study of every other aspect of administrative law.
• The American approach is significantly different from the early English approach, in that
it recognized administrative law as an independent branch of the legal discipline.

3. According to Kenneth Culp Davis, Administrative law is a law that concerns the powers and
procedure of administrative agencies, including especially the law governing judicial review
of administrative action.
4. Garner also adopts the American approach advocated by Casey Davis According to him,
administrative law may be described as those rules which are recognized by the courts as law
and which relate to and regulate the administration of government.
5. According to Wade, administrative law is the law relating to the control of governmental
power.
• According to him the primary object of administrative law is to keep the powers of the
government within their legal bounds so as to protect the citizens against their abuse. The
powerful engines of authority must be prevented from running amok.

6. Griffith and Street, according to Griffith and Street, the main object of administrative law is
the operation and control of administrative authorities. It must deal with three aspects-
1) What sort of power does the administration exercise?
2) What are the limits of those powers?
3) what are the ways in which the administration is contained within those Limits?

7. According to the Indian law Institute, the following two aspects must be added to have a
complete idea of present-day administrative law
1) what are the procedures followed by the administrative authorities?
2) What are the remedies available to a person affected by administration?

8. According to Jain and Jain Administrative law deals with the structure, powers and functions
of the organs of administration, the limits of their powers, the methods and procedures
followed by them in exercising their powers and functions, the methods by which their
powers are controlled including the legal remedies available to a person against them when
his rights are infringed by their operation.

9. Professor Upendra Bakshi of India lays special stress on the protection of the little man from
the arbitrary exercise of public power. According to him administrative law is a study of the
pathology of power in a developing society.
1) He defines 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.

• On an analysis of the above definitions, it may be submitted that there is no comprehensive

and universally accepted definition of administrative law.
• For our purposes, we may define administrative law as that branch of public law which deals
with the organization and powers of administrative and quasi administrative agencies and
prescribes principles and rules by which an official action is arranged and revealed in relation
to individual liberty and freedom.
 RULE OF LAW

I. Rule of Law- One of the basic principles of the English Constitution is the Rule of law. This
doctrine is accepted in the US and Indian Constitution. The entire basis of administrative law
is the doctrine of rule of law. Sir Edward Coke, Chief Justice in James I's reign, was the
originator of this concept. In a battle against the King, he maintained successfully that the
King should be under God and the Law, and he established the supremacy of the law against
the executive.
• The concept of Rule of Law can be traced from the time of the Romans, who called it ‘Just
Law’- Jus Naturale, to the Medieval period where it was called the ‘Law of God.’
• “Rule of law” is to be understood neither as a “rule” nor a “law”. It is generally understood
as a doctrine of “State political morality” which concentrates on the rule of law in securing a
“correct balance” between “rights” and “powers”, between individuals and the state in any
free and civil society. This balance may be drawn by “law” based on freedom, justice,
equality, and accountability. Therefore, it infuses law with moral qualities. “Rule of proper
law balances the needs of the society and the individual.”
• The term “rule of law” is derived from the French Phrase la principe de legalite (the principle
of legality) which refers to a government based on principles of law and not of men. In this
sense la principe de legalite was opposed to arbitrary powers.
• Rule of law Embodies the doctrine of supremacy of law. It is a basic and fundamental
necessity for a disciplined and organized community.

Rule of Law according to different Jurist

Rule of law according to Objects based on Edward coke's theory-:
• To prevent authoritarian dominance in governance
• To reject the capricious power of the state
• Uniform enforcement of laws and directives, regardless of level or position
• To act in accordance with the law
• Defense of persons and their rights
• The law is king
• Lawmakers have the authority to scrutinize administrative acts.
II. Dicey’s Concept of Rule of Law 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
3) Predominance of legal spirit.
1. Supremacy of law-Absence of discretionary power in the hands of the government officials.
By this Dicey implies that justice must be done through known principles. Discretion implies
absence of rules, hence in every exercise of discretion there is room for arbitrariness.

• 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.
• According to this doctrine, no man can be arrested, punished or be lawfully made to suffer
in body or goods except by due process of law and for a breach of law established in the
ordinary legal manner before the ordinary courts of the land. Dicey described this
principle as ‘the central and most characteristic feature’ of Common Law.

2. Equality before law

➢ Explaining the second principle of the rule of 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 courts of law. According to him, in England, all persons were
subject to one and the same law, and there were no separate tribunals or special courts
for officers of the Government and other authorities.
➢ No person should be made to suffer in body or deprived of office, property except for a
breach of law established in the ordinary legal manner before the ordinary courts of the
land. In this sense, the rule of law implies
➢ Absence of special privileges for a government official or any other person
1) All the persons irrespective of status must be subjected to the ordinary courts of
the land
2) Everyone should be governed by the law passed by the ordinary legislative organs
of the
3) state
4) The rights of the people must flow from the customs and traditions of the people
recognized by the courts in the administration of justice
 3. Predominance of legal spirit.
Judge – made Constitution explaining the third principle, Dicey stated that in many countries’
rights such as the right to personal liberty, freedom from arrest, freedom to hold public
meetings, etc. are guaranteed by a written Constitution; in England, it is not so. Those rights are
the result of judicial decisions in concrete cases which have actually arisen between the parties.
Thus, 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. He stated: “The Law of the Constitution, the rules which in foreign
countries naturally form part of a Constitutional Code, are not the source but the consequences
of the rights of individuals, as defined and enforced by the courts.

III. Criticism of Dicey’s View

Dicey’s views on Rule of Law have been criticized by the modern writers. It is observed that Dicey
misconceived the administrative law in France. He ignored the realities in England and
misinterpreted the situation in France. He was also not right when he saw that there is no
administrative law in England because even during his time Crown and its servants enjoyed
special privileges on the parts of the doctrine that “King can do no wrong.”
Later on, Dicey recognized his mistake by observing that there exists in England a vast body of
administrative law.

IV. Rule of Law in India- Important Case Law:-

• In Kesavanand Bharati Vs State of Kerala, the view was that the Rule of Law is a basic
intent of the ‘Constitution apart from democracy.
• Punjab v. Om Prakash (1968) The case of Chief Settlement Commissioner, Punjab v. Om
Prakash (1968) marked a significant judicial pronouncement by the apex court of India.
The court’s central findings are crucial to understanding the constitutional framework
and highlight the centrality of the rule of law in the Indian legal system.

V. Modern concept of Rule of Law is formulated by International Commission of Jurists

The concept of Rule of Law formulated by International Commission of Jurists may be regarded
as modern concept because it is in consonance with the need of Rule of Law in a modern welfare
 society. This concept is also known as Delhi Declaration 1959. It was later on confirmed as Lagos
in 1961. The commission divided itself into certain working committees.
VI. Conclusion- The above discussion clearly shows that the recent judgments of the Highest
Court of India as well as High Courts exhibit a new approach to the concept o rule of law by
emphasizing the fair play and justice in every walk of administrative action and access to
judicial remedies for all including socially and economically weaker sections of the society.
VII. Rule of Law-use in following matters

1) In executive
2) In Criminal procedure
3) In legislation In Judiciary
• Is Administrative law inconsistent with Rule of Law? - Administrative law is not inconsistent
with rules of law. Administrative law checks and controls the discretionary powers of
administrative authorities.
 DOCTRINE OF SEPARATION OF POWERS
Doctrine of Separation of Powers- The doctrine of separation of power can be traced to Aristotle.
But it was formulated for the first time by the French jurist. Montes Evie.

The Historical Evolution

The doctrine of separation of powers emerged in the ancient era. Aristotle, in his book ‘Politics’,
discussed the concept of separation of powers stating that every constitution should have a
heterogeneous form of government consisting of mainly three branches: the deliberative,
public officials and the judiciary.
Further, in the 17th century during the arrival of Parliament in England, this theory of three
branches of government was reiterated by John Locke, a British Politician in his book ‘Two
Treatises of Government’ but with some different view. According to him, the three branches
neither should have equal powers nor work independently. In his opinion, the legislative branch
must be supreme out of all the three and other branches should be controlled by the monarch.
Montesquieu - However, in the 18th century, the term ‘trias politica’ or the doctrine of
separation of powers was theorized meticulously by a French jurist, Baron de Montesquieu. He
put more emphasis on the independence of the judicial branch.
He described that rather being ostensible, the judiciary must be authentic in nature. In his
viewpoint, one organ or one person should not discharge the functions of all the other organ
and the reason was to safeguard and protect the freedom of the individuals and avoidance of
tyrannical rule. In his book De L’Esprit des Lois (The Spirit of Laws, 1748), he propounded that:-
• the Executive should not exercise the legislative or judicial powers because this may
threaten the freedom and liberty of individuals.
• The Legislative should never exercise the executive or judicial powers as this may lead to
arbitrariness and hence, end the liberty.
• The Judiciary should not exercise the executive or legislative powers because then a judge
would behave like a dictator.

Meaning of Separation of Powers

As is evident from the name itself, theory of three branches of the government divides the entire
governance mechanism into three different organs to reduce the arbitrariness by the people
running the state. The division is also necessary as it is impossible for anyone organ to perform
all the roles and responsibilities systematically and appropriately.
Under this theory, the state is divided into the three branches – Legislative, Executive and
Judiciary as given by Montesquieu.

Objectives of Separation of Powers

The following are the fundamental objectives of the doctrine of separation of powers: -

1. Firstly, it aims to eliminate arbitrariness, totalitarianism and tyranny and promote an

accountable and democratic form of government.
2. Secondly, it prevents the misuse of powers within the different organs of the
government. The Indian Constitution provides certain limits and boundaries for each
domain of the government and if anything goes beyond the provisions of the
constitution, it will automatically be considered as null, void and unconstitutional.
3. Thirdly, it keeps a check on all the branches of the government by making them
accountable for themselves.
4. Fourthly, separation of powers maintains a balance among the three organs of
government by dividing the powers among them so that powers do not concentrate
on any one branch leading to arbitrariness.
5. Fifthly, this principle allows all the branches to specialize themselves in their respective
field with an intention to enhance and improve the efficiency of the government.

connection of Separation of Powers to the U.S. Constitution

The doctrine of separation of power in India has been adopted from the Constitution of United
States. This doctrine finds its home in the U.S. where the doctrine is being adopted in the strict
sense. The makers of the American Constitution believed the adoption of this principle is
necessary so as to prevent the rise of tyrannical government. Three departments have been
established under the Constitution of USA to ensure adequate division of powers which are as
follows :

• Article I, section 1 vests all legislative power in the Congress,

• Article II, section 1 vests all executive power in the President of the United States, and

• Article III, section 1 vests all judicial power in the Supreme Court.
 application of Separation of Powers in India
Looking at the provisions of the Constitution of India, it is evident that the Doctrine of separation
and power has been accepted in India but unlike U.S., India has accepted it in rigid sense instead
of strict sense. Meaning to say, in India, there is a proper distinction between three organs and
their functions. In India, not only there is functional overlapping but there are personnel
overlapping also.

The basic principle under the Indian Constitution is that the legal sovereign power has been
distributed between three organs of the governance as follows:

1) Legislative
The legislative organ of the government is also known as the rule-making body. The
primary function of the legislature is to make laws for good governance of a state. It has
the authority of amending the existing rules and regulations as well. Generally, the
parliament holds the power of making rules and laws.
In India, legislature organ comprises of two bodies : (a) Parliament which includes
Raj Sabha and Lok Sabha, which lays down the laws at the central level for the nation
and (b) State Legislative bodies which frames the laws at the state level, each for it’s own
state.
2) Executive
This branch of government is responsible for governing the state. The executives mainly
implement and enforce the laws made by the legislature. The President and the
Bureaucrats form the Executive branch of government.
In Indian executive mechanism, (a) President is the head of the executive at the central
level whereas, (b) Governor is the head of the executive at the state level. Moreover,
Indian executive also includes head of the minister, advisors, departmental head and his
ministers.
3) Judiciary
Judiciary plays a very crucial role in any state. It interprets and applies the laws made by
the legislature and safeguards the rights of the individuals. It also resolves the disputes
within the state or internationally.
Indian judiciary system comprises of (a) Supreme Court as the apex court of the country,
(b) High Courts as the highest most courts their respective states and (c) Subordinate
courts at various levels in the district as per the needs of the governance.
Judicial Approach towards Separation of Power in India
The court has interpreted the applicability of the doctrine of separation of power in India in
many case laws.

• The very first judgment with relation to the separation of powers was given by
Mukherjee J. in the case of Ram Jawaya Kapur v. State of Punjab[3]. He concluded
that-
“ The Constitution of India has not acknowledged the doctrine of separation of power
emphatically but the functions and powers of all the organs have been adequately distinguished.
Thus it would not be wrong to say that Indian constitution does not behold assumptions rather it
works in a flexible manner considering the needs of the country. So, the executive can exercise
the law-making power only when delegated by the legislature and it is also empowered to
exercise judicial powers within the limits. But on an all, no organ should exercise its power beyond
the provision of the constitution.”

• In the case of Indira Nehru Gandhi v. Raj Narain[4], Ray C. J. said:-

“ A rigid sense of separation of powers which has been given under the American and Australian
constitution does not apply to India.”