Administrative Law

- Smita Srivastava
Part 1: Definition, Nature and Scope of Administrative Law
Part 2: Reason for growth of Administrative Law
Part 3: Relationship of Constitutional Law and Administrative Law
Part 4: Evolution of Administrative Law
 Administrative Law
 Most significant and outstanding growth of the 20th century is the rapid growth of
Administrative Law.

 It does not mean that there was no administrative law before this century

 Since many century in one form or another form it was in existence.

 But in this century, the philosophy as to the role and function of the State has
undergone a radical change.

 Today the State is not merely a Police State, exercising a sovereign functions, but
as a progressive democratic State seeks to ensure social security and social
welfare for the common man.

 It regulates the industrial relations, exercises control over the production,

manufacture and distribution of essential commodities, starts many enterprises,
tries to achieve the equality for all and ensures equal pay for equal work.
 Definition

 It is indeed difficult to define the precise, scientific, satisfactory definition of

administrative law.

 Many jurists have made attempt to define it, but none of definition has
completely demarcated the nature, scope and content of Administrative Law.

 Either the definition are too broad and include much more than necessary or too
narrow and do not include all the necessary ingredients.

 For some it is the law relating to the control of powers of government and the
main object is to protect individual rights.

 Other places greater emphasis upon the rules which are designed to ensure
effective administration.
 For some others it is law ensuring the governmental accountability and
fostering participation of interested parties in the decision making process.

 Prof. Wade

“Administrative Law is the law relating to control of governmental power.”

- considerable emphasis on object but does not define the subject.

- does not deal with power and duties of administrative authorities nor with the
procedure to be followed.
 K. C. Davis

“ Administrative law is the law concerning the powers and procedure of

administrative agencies, including especially the law governing the
judicial review of administrative action.”

- emphasis on procedure followed by agencies in exercising their power, but

does not include the substantive laws prepared by these agencies.

- More emphasis on judicial control, but ignores the other equally important
control. E.g. Parliamentary control of Delegated Legislation
Griffith and Street

“The main object of Administrative Law is the operation and control of

administrative authorities. It must deal with the following three aspects:

1) What sorts of power does the administration exercise?

2) What are the limits of those powers?
3) What are the ways in which administration is kept within those limits.

Criticism-
- What procedure will be adopted has not been defined?
- What is remedy for public in case of violation of rights by
administrative authorities? It has not been defined.
Ivor Jennings

“ Administrative Law is the law relating to administration. It

determines the organization, powers and duties of administrative
authorities.”

Criticism

- Most widely accepted definition

- does not distinguish Administrative Law and Constitutional Law

- does not include remedy available to aggrieved person when his

right are adversely affected by administration.
 So on the basis of above definition, it can be said that administrative law
defies the definition.

 The reason seems to be that in almost every country irrespective of its

political philosophy, the administrative process has increased so
tremendously that today we are living in its shade but its shadow.

 Therefore, it is impossible to attempt any precise definition of Administrative

Law which can cover entire range of administrative process.
But on the basis of above discussion, some characteristics of Administrative
Law can be inferred-

1. It is branch of Constitutional Law.

2. It deals with composition, power, functions and duties of administrative

authorities.

3. It prescribes procedure to be followed by these authorities in exercising

such powers and discharging duties.

4. It fixes the limits of the powers of those authorities.

5. It deals with the methods by which those powers are controlled including a
legal remedies available to a person against them when his right are
infringed by their operation.
 Nature and Scope

 Administrative Law is law but it is not a law in the lawyer’s sense of the term like
property law or contract law. It is a law in realist’s sense of the term which
includes statute law, rule-making, precedents, customs, administrative
discretions etc. It also includes the study of something which may not be termed
‘law’ in true sense of term such as the administrative circulars, policy statements,
rules, regulations, memoranda and resolutions. Besides this, it also includes
within its study ‘higher law’ as well like principles of natural justice.

 Administrative Law is a branch of public law which deals with the relationship of
individuals with organized power.
 It deals with organization and powers of administrative and quasi administrative
agencies.

 It includes the study of principles followed by administrative and quasi

administrative agencies e.g. principles of natural justice, reasonableness and
fairness.

 It primarily concerns itself with official action which may be quasi-legislative

action, quasi-judicial action, administrative action or ministerial action.

 It includes the procedure followed by administrative agencies by which action is

reached. Sometimes it may be given in statute itself by which administrative
authority is created or by separate procedure code.
 It studies the control mechanism by which administrative agencies are kept within
bounds-
- Courts exercising the writ jurisdictions through writs of habeas corpus,
mandamus, certiorari, prohibition and quo-warranto.
- Courts exercising ordinary judicial powers through suits injunctions and
declaratory actions
- Statutory authorities like ombudsman, Human Rights Commissions and other
investigating agencies
- Higher administrative authorities
- Public opinion and mass media
- Civil Society
- Right to know, Right to Reply
 The study of administrative law is not an end in itself but a means to an
end. The focal point of the study of administrative law is reconciliation of
power with liberty.
 Constitutional Law and Administrative Law

 Earlier their was no difference between administrative law and Constitutional Law.
- Both are concerned with functions of the government.
- Both are Public Law
- Sources of both are same

 Keith – “It is logically impossible to distinguish Administrative Law and Constitutional Law
and all attempts to do so are artificial.”
Another view is that there is distinction between
these two-

Constitutional Law Administrative Law

 CL deals with general principles  Administrative Law deals with
relating to organization and power organization, functions, powers and
of various organs, their mutual duties of administrative authorities.
relationship and relation with
individual.
 Deals with details
 Deals with fundamentals
 Emphasizes on public need
 Deals with right
 Sources- Statute, precedents and
 Sources- Constitutional Law
customs.
But the correct position is that if one draws two circles of Administrative Law and
Circle at certain place, they may overlap. This area is called watershed.
 Article 32, Article 136, Article 226, Article 227, Article 300 and Article 311
 Inter-State Council – Article 263
 Finance Commission – Article 280
 Inter-State Water Dispute Authority- Article 262
 Public Service Commission- Article-315
 Election Commission – Article – 324
 Constitutional Limitation on delegation of Power and Administrative Action
e.g. Fundamental Right.
 Reasons for growth of Administrative Law
 Emphasis on Public Welfare Activities of State
- The negative policy of maintaining ‘law and order’ and laissez faire is
given up.

- The State is not confined to the traditional and minimum function of

defense and administration of justice.

- Now it has adopted positive policy and as a welfare state it has to

perform various function.
 Administrative Interference in Public Life
- Today there is demand by the people that government must solve the
problems rather than merely defining their rights.

- Rights are meaningless unless the government comes forward to actively

help the weaker sections of the society. This implies the growth of
administrative law.
 Scientific and Technological Development
- Modernization and Technological Developments produce great
structural changes and create crucial problems such as cultural conflicts,
haphazard urbanization, ruthless exploitation of natural resources,
environmental pollution, rapid transport, concentration of economic
problems, tax evasion etc.

- These multi-dimentional problems with varied social economic and political

ramifications cannot be solved except with the growth of administrative and law
regulating administration.
 Inadequacy of Traditional Court
- Judicial system proved inadequate to decide and settle all types of
disputes.
- It was slow, expensive, inexpert, complex, technical and formalistic.
- Modern socio-economic problems require technical expertise which our
traditional court lacks.
- 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, locks-outs, strikes etc.
- It was main reason of growth of administrative adjudicatory process.
- Labour courts and industrial tribunals were established which possessed the
techniques and expertise to handle these complex problems.
 Inadequate Legislative Process
- The legislative process was also inadequate. It had no time and technique to
deal with all details. It was impossible for it to lay down detailed rules and
procedures, and even when detailed provisions were made by the legislature,
they were found to be defective and inadequate. E.g. rate fixing.

-Because of limitation of time, technical nature of legislation, the need for

flexibility, experimentation and quick action, traditional legislative organ can
not pass that quality and quantity of laws which are required for functioning of
modern government.

- Therefore it was felt necessary to delegate some powers to administrative

authorities.
 Scope of Experimentation
- There is scope of experimentation in administrative process.

- No need to continue a rule until commencement of next session of the legislature.

- Here a rule can be made, tried for some time and if it is found defective, it can be
altered and modified within a short period.

- Thus legislation is rigid in character while administrative process is flexible.

 Preventive Measures
- Administrative measures can take preventive measures e.g. licensing, rate fixing
etc.
- Administrative action can take effective steps for enforcement of the aforesaid
preventive measures. e.g. suspension, revocation and cancellation of licenses,
destruction of contaminated articles etc. which are generally not available in through
court of law.
 Evolution of Administrative Law
England
 In England, by and large, the existence of Administrative Law as a
separate branch was not accepted until the advent of the 20th Century.
 In 1885, Dicey in his famous thesis on Rule of Law observed that there
was no administrative law in England.
 While saying this, he ignored the existence of administrative discretion and
administrative justice which were current even in his days.
 In a large number of statutes discretionary powers were conferred on the
executive authorities and administrative tribunals which can not be called
in question.
 In 1914 Dicey changed his views. In the last edition of his famous book
‘Law and the Constitution,’ published in 1915, he admitted that during
the last 30 years, due to increase of duties and authority of English
officials, some elements of droit had entered into the law of England.

 He observed that “Legislation had conferred a considerable amount of

quasi-judicial authority on the administration which was a considerable
step towards the introduction of administrative law in England.
 In 1929, the Committee on Minister’s Powers headed by Lord Donoughmore
was appointed by the British Government to examine the problems of
delegated legislation and the judicial and quasi judicial powers exercised by
officers appointed by the ministers and to suggest effective steps and
suitable safeguards to ensure the supremacy of law.
 In 1932, the Donoughmore Committee submitted its report and made certain
recommendations with regard to better publication and control of
subordinate legislation, which were accepted by Parliament with the
passage of Statutory Instruments Act, 1946.
 In 1947, the Crown Proceedings Act was passed by the British Parliament
which made the Government liable to pay damages in cases of tortious and
contractual liability of the Crown. Thus, the abandonment of the famous
doctrine “The King can do no wrong” considerably expanded the scope of
administrative law in England.
 In 1958, the Tribunals and Inquiries Act was passed for the purpose of better
control and supervision of administrative decisions, and the decisions of the
administrative authorities and tribunal were made subject to appeal and
supervisory jurisdiction of the regular court of law.
France
 French Administrative Law or droit administratif is a branch of law which deals
with the powers and duties of various administrative agencies and officials.

 According to this system an individual in his dealings with the State does not
according to the French legal system, stand on same footing as that on which he
stands in dealing with his neighbor;
 There are two set of rules to govern
- the relations of State and Individual
- relation of two private individual

 the Government and its officials are independent of and free from the
jurisdiction of the ordinary civil court.

 Matter concerning the State and administrative litigation are decided by

administrative court not by ordinary court of law.

 Counseil d’ Etat – Separate Administrative Court

India
 Administrative Law was in existence in India even in ancient times.
 Under the Mauryas and Guptas, several centuries before Christ, there was well
organized and centralized administration in India.
 Rule of Dharma was observed by the kings and administrators.
 With the establishment of the East India Company and the advent of the British
Rule in India, the powers of government had increased.
 Many Acts, statutes and legislations were passed by the British Government
regulating public safety, health, morality, transport and labour regulations.
 Since Independence, the activities and the functions of government have
further increased.
 Philosophy of welfare state has been specifically embodied in the Constitution
of India.
 In the Constitution itself, provisions are made to secure all citizens social,
economic and political justice, equality of status and opportunity.
 The ownership and control of material resources are so distributed as best to
sub-serve the common good.
 The operation of the economic system should not result in concentration of
wealth and means of production to the common detriment.
 Industrial Disputes Act, 1947
 Minimum Wages Act, 1948
 Factories Act, 1948
 Employees’ State Insurance Act, 1948
 Essential Commodities Act, 1955
 Companies Act, 1956/2013
 Real Estate (Regulation and Development) Act, 2016