COURSE � I

�ADMINISTRATIVE LAW�
(CODE: K-204)
Unit I: Definition, Evolution, Nature and Scope of Administrative Law
Separation Powers, Rule of Law.
Unit II: Classification of Administrative Action, Quasi-Legislature
Quasi-Judicial Administrative Action, Administrative
Instructions, Administrative Directions rules of Natural Justice-
Rule against Bias, Audi Alterm Partem, Reasoned.
Unit III: Legislative Powers of Administration, Delegated Legislation
necessity Constitutionality, Requirements for the validity of
delegated legislation. Control over Delegated Legislation, Sub-
legislative powers.
Unit IV: Judicial control of Administrative action Writs, PIL (Public
Interest Litigation), Injunction, Declaration, Suits for damages,
Liability for wrongs Tortuous and Contractual, Ombudsman
Lok Pal, Lok Ayukta, Central Vigilance Commission.
Unit v: Corporation and Public Undertaking-legislative and
Governmental control, accountability, Committee on Public
Undertaking, Estimate Committee, Judicial Powers of
Administrative Tribunals and other Adjudicating Authorities,
Production of Civil Servants under Constitution of India.NATURE AND SCOPE OF
ADMINISTRATIVE LAW
INTRODUCTION
The growth of administrative law can be attributed to a change of
philosophy as to the role and function of the State. The all pervading
political gospel of 19th century was" Laissez Faire" which manifested itself
in the theories of individualism, individual enterprise and self-help. The
doctrine of "Laissez Faire" resulted in human misery. It came to be realised
that the bargaining position of every person was not equal and uncontrolled
contractual freedom led to exploitation of the weaker by the stronger. The
twentieth century witnessed a significant change in the governmental role
and it's function. It came to be recognised that State should take active
interest in ameliorating the conditions of the downtrodden. This approach
gave rise to political dogma of" collectivism" which favoured State's
intervention and social control of the nation's natural resources and
regulation of individual enterprise.
The State started to act in the interest of social justice. It assumed a
positive role, as a vehicle of socio-economic regeneration and welfare of the
people. The emergence of social-welfare concept has affected democracies
very profoundly leading to State activism. There has been a phenomenal
increase in the area of State operation. Today the State acting in various
capacities pervades every aspect of human life and the functions of modern
State are diversified into various categories as:-
(l) The Protector (2) The Provider
(3) The Entrepreneur
(4) The Economic controller
(5) The Arbiter
The State activism has led to one inevitable result. In its quest to
improve physical, moral and economic welfare of the people, the State has
assumed more and more power to regulate society. The State consists of
three organs and increasing State activities have resulted in increase of work
for all organs, yet the largest extension in depth and range of function and
power has taken place at the level of the executive cum administrative organ.
Today's age is administrative age, administrative organs have become
predominant and it is on the ascendancy. It's functions and powers have
grown vastly over time and administration has acquired immense importance
in progressive societies. Today, administration is discharging multifarious
functions by providing technical and effective advice to the legislature, by
executing and administering the law and policies, and by taking manifold
decisions to implement the legislative policies. With the emerging pattern of
global governance as a consequence of globalised interdependence in such
fields like trade, development, environment, communication, banking,
migration and security, the administrative authorities are exercising not only
the traditional function of administration (Le. maintaining law and order) but
also exercising their power in relation to rule-making (Quasi�legislative
function), decision-making (Quasi-judicial function), application of rules
and ministerial action. In the words of Robson: "The hegemony of the executive is
now an
accomplished fact". The extension of power and functions of the
administration has become a desideratum as most of the contemporary
complex socia-economic problems could be tackled best, from a practical
point of view, only by administrative process instead of the normal
legislative or judicial process. Another advantage of the administrative
process is that it can evolve new techniques, processes and instrumentalities,
and acquire expertise and specialisation, to meet and handle new complex
problems of modem society. The administration without making any delay
can change a well listed rule according to the rapidly changing situation in a
developing' or developed society. Even if it is dealing with the problem case
by case (as does the court) it can change it's approach according to the
exigency of the situation and demands of justice. Such flexibility of
approach is not possible in the� case of legislative or judicial process.
All this has resulted in proliferation of bureaucracy. Administration
has assumed such an extensive sprawling and varied character, that it is not
easy to define the term "Administration" or to evolve a general norm to
identify an administrative body as one which administers, for the
administration does not only put the law into effect, but does more; it
legislates and adjudicates. At times, administration is explained in negative
manner by saying that what does not fall in the purview of legislature or
judiciary is covered by administration. Definition of Administrative Law
To evolve a scientific, precise and satisfactory definition of as
complex a subject as administrative law is indeed difficult. Many jurists
have made attempts, from time to time, to define it but none of the definition
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 fails to include all the necessary
ingredients.
English Approach to Administrative Law
Dicey in his "Law of the Constitution" (Pg. 329-333) 8th ed. has
defined Administrative Law as follows:-
Administrative Law relates to that portion of a nation's legal system
which determines the legal status and liabilities of all State officials; defines
the rights and liabilities of private individuals in their dealings with otlicials
and specifies the procedure by which those rights and liabilities are
enforced. "Dicey was obsessed with the French "Droit administrative" and
so his formulations mainly concentrated on judicial remedies against State
officials, and excludes other aspects of administrative law.
Sir Ivon Jennings
"Administrative Law is the law relating to the administration. It
determines the organisation, powers and duties of administrative
authorities." Criticism of English Approach
According to Griffith & Street; this formulation is too broad and
general as there are three shortcomings in this definition:-
1. It does not distinguish administrative law from constitutional law.
2. It is a very wide definition, for the law which determines the powers
and functions of administrative authorities may also deal with
substantive aspects of such powers. For example:-
Legislations relating to public health services, houses, town & country
planning etc. Again it does not include the remedies available to an
aggrieved person when his rights are adversely affected by the
administration.
3. It excludes the manner of exercise of the powers. & duties i.e.
procedure of administrative bodies or administration of policies which
is emphasised in American Approach.
American Approach to Administrative Law
The American approach is significantly different from the early
English approach in that it recognised administrative law as an independent
branch of the legal discipline. According to Kenneth Culp Davis-
"Administrative law is the law concerning the powers and procedures
of administrative agencies, including especially the law governing judicial
review of administrative action".
Within his formulation Davis includes the study of administrative rule
making and rule adjudication but excludes rule application which according to him
belongs to the domain of public administration. But even this
classification, cannot be considered complete because he excludes from this
the control mechanism, the control exercised by the legislature, the higher
administrative authorities and the mass media representing public opinion
and also the vast area of administrative action which is neither quasi
legislative nor quasi-judicial.
Griffith and Street
"The main object of administrative law is the operation and control of
administrative authorities." It must deal with following three aspects:-
1. What sort of powers does the administration exercise?
2. What are the limits of those powers?
3. What are the ways in which the administration is kept within those
limits?
4. What are the procedures followed by administrative authorities?
5. What are the remedies available to a person affected by
administration? Wade-"Administrative Law is the law relating to the
control of governmental power." According to him the primary
purpose of administrative law is to keep the powers of the government
within their legal bounds, so as to protect the citizens against their
abuse. General definition of Administrative Law
"Administrative law is that body of law which is connected with the
activities of all the administrative agencies of the government. It is a branch
of public law."
A satisfactory and workable definition has been formulated by Jain &
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".
Above definition has four limbs
1
st limb: It deals with composition and powers of the organs of
administration.
The expression 'organs of administration' includes all kind of public
and administrative authorities.
2nd limb: It fixes the limit on the powers of these authorities.
3rd limb: It prescribes the procedure to be followed by these
authorities in exercising such powers.
4th limb: It controls these administrative authorities through judicial
and other means. Under this head would fall judicial as well as extra-judicial
means of controlling the administration e.g. tribunal, ombudsman etc.
According to C.K. Takwani:-Administrative law is that branch of constitution which
deals with
powers and duties of administrative authorities, the procedure followed by
them in exercising the powers and discharging the duties and the remedies
available to an aggrieved person when his rights are affected by any action
of such authorities.
I.P. Massey in the" Administrative Law of India" opines-
Administrative Law is that branch of public law which deals with
organisation and powers of administrative and quasi-administrative agencies
and prescribe principles and rules by which an official action is reached and
reviewed in relation to individual liberty and freedom. This definition makes
clear the nature & scope of administrative law.
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. The administrative process has come to stay and be
accepted as a necessary evil in all progressive societies, specially in welfare
state, where many schemes for the progress of the society are prepared and
administered by the government. The execution and implementation of these
schemes may adversely affect the rights of the citizens. The real problem is
to reconcile social welfare with the rights of individual subjects. As has been
rightly observed by Lord Denning:-"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 power may not be turned into arbitrary
power."
Sources of Administrative Law
Administrative law is not a codified, written or well-defined law like
Contract Act, Penal Code, Transfer of Property Act, Evidence Act,
Constitution of India, etc. It is unwritten, unmodified or 'Judge-made' law. It
has developed slowly in the wake off actual 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. They
generally used to decide rights of parties and has transformed into 'Fourth
branch' of Government, a 'Government in miniature'.
Ambit of Administrative Law
Administrative law though it's a branch of public law, but its ambit
cannot be defined with clarity and precision as it stretches over practically
all the branches of public law. It is not a codified law. It is not a law in the
lawyers sense of term like contract or property law, it is a law in the realist's
sense of the term and includes statutory law, administrative rules,
regulations, bye-laws or administrative directions and schemes, precedents
customs including principles of natural justice and all other matters. Within
its ambit are included the following:-a) Administrative law being a science of
power of administrative
authorities covers, (i) Purely administrative action and power of rule
making, (ii) Legislative rule making, & (iii) Quasi judicial or
adjudicative organs and bodies,
b) Rule making power of administrative agencies and departments, what
is compendiously called delegated legislation,
c) Safeguard against abuse of administrative power viz. legislative and
judicial controls,
d) Various administrative bodies, with administrative or judicial or
quasi�judicial functions and powers,
e) Adjudicative and judicial functions of administrative bodies, such as
administrative tribunals,
f) Procedure of administrative bodies and tribunals with minimum
procedural guarantees of compliance with rules of natural justice,
g) Liability of the government,
h) Remedies against executive excesses or executive arbitrary action,
such as writ jurisdiction of the High Courts and Supreme Court and
remedies under Special Relief Act; in short the control mechanisms,
and
i) Public undertakings, corporations and government companies.
Development of Administrative Law
Factors leading to the growth of administrative law are:-
(1) The radical change of the philosophy as to the role played by the
state. The switching over from the negative policy of maintaining "law and order"
and of "laissez faire" to the positive policy as a welfare State which
has undertaken to perform varied functions.
(2) The judicial system already overburdened, it was not possible to
expect speedy disposal of important matters e.g. disputes between
employees and employers, lock-out, strikes etc. Moreover it proved costly,
exerting, complex and formalistic. These burning problems could not be
solved merely by literally interpreting the provisions of any statute, but
required consideration of various other factors and it could not be done by
ordinary courts of law. Therefore, administrative instrumentalities were
established thus giving impetus to growth of administrative law.
(3) The legislative system being involved in performing varied
functions had no time to evolve technique to deal with every aspect of the
problem, and even when detailed provisions were made by legislature, they
were found to be defective and inadequate and therefore it was felt necessary
to delegate some powers to administrative authorities.
(4) There is scope for experiments in administrative process. Here
unlike legislation, it is not necessary to continue a rule until commencement
of the 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 or modified because
administrative process is flexible.
(5) Administrative authorities can take immediate preventive
measures e.g. licensing, rate fixing etc as opposed to regular courts. Which
have to wait for parties to appear before giving directions.
(6) Administrative authorities 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
not generally available through regular courts of law
Extent of Administrative Law
In the last ten years, there has been tremendous growth of
Administrative law in India & abroad and two conflicting theories came into
existence, viz.
(i) Red Light theory,
(ii) Green light theory
According to 'Red light theory', the primary object of Administrative
Law is to control governmental power. It is based on the assumption that
every power tends to corrupt and absolute power tends to corrupt absolutely.
'Red light theory' has emerged from a fear of State absolutism. Since State
regulates and controls� various activities of its subjects, there is every
possibility of misuse or abuse Of power. 'Red light theory' seeks to protect
private rights and individual interests. Its object is to keep governmental
agencies and administrative authorities within the bounds of law through
judicial control.
Advocates of 'Green light theory', on the other hand, believe in
ground-reality and favour regulatory measures. This theory also does not
concede arbitrary, unrestricted or absolute power to administrative
authorities. But' Red light theory' favours judicial control, whereas 'Green
light theory' puts emphasis on political process. Control of administrative
agencies under this theory is direct and internal rather than indirect and
external. Inbuilt mechanism under 'Green light theory' allows intervention by
the State in larger public interest ensuring rights of citizens and well-being
of society as a whole. This can be achieved through active involvement,
positive deliberation, effective consultation, creative contribution,
productive participation, decentralization of power, freedom of information
and other similar actions at the level of administration.
Both the theories have their own merits and pitfalls. In most of the
legal systems, therefore, there is combination of two theories. In other
words, reality lies somewhere between the pure 'Red' and 'Green' light
models, in an 'amber light theory'. As observed in R. v. Lanchashire
County Council, (1986) 2 All ER 941, a new relationship has emerged
between the courts and those who derive their authority from the public law.
It is one of partnership based on a common aim, viz., maintenance of highest
standards of public administration.
(Source: Lectures on Administrative Law, C.K. Takwani, 4th edition,
p. 7 & 8)
ADMINISTRATIVE LAW IN INDIA
Administrative law was in existence in India even in ancient times.
The rule of Dharma which included the basic principle of natural justice and
fair play were followed by the kings and its official as the administration
could be run only on those principles accepted by Dharma. But there was no
administrative law in existence in the modem sense.
In its modem sense, the existence of Administrative law in India can
be traced right since the early days of the British rule. However, till the end
of the British rule in India, the government was concerned with the most primary
duties only e.g. collection of revenue and maintenance of law and
order. During this period, many Acts, statutes and regulations were also
passed by the British Government to regulate public safety, health, morality,
transport, and labour relations but the functions of a Welfare State was not
discharged. When India became independent, the philosophy of Welfare
State was made the creed of Indian Constitution and provisions were made
to secure to all citizens social, economic and political justice equality of
status and opportunity. To secure these welfare and socialistic aims and
objects, the
Constitution has provided an elaborate functional Government and
administrative mechanism. All the important aspect of the administrative
law like delegated legislation, judicial review tribunals, government liability,
has been incorporated in our Constitution. The Constitution also provides for
some administrative agencies to regulate a particular field e.g. Inter-State
Council, Finance Commission, Inter�State Water Dispute Authority, Public
Service Commissions, Election Commissions, etc.
Conceptual objections against the growth of administrative law Concept
of the Rule of law:
The term 'Rule of Law' is derived from the French phrase "Ia principle
de legalite" (the principle of legality) which connotes a government based on
principle of law and not of men. Sir Edward Coke is said to be the originator
of this concept. Simply the Rule of law means that the law should rule, that it
should
provide a framework within which all citizens act and beyond which no one,
neither private citizen nor government official should go. The fundamental
purpose of law is to protect individual rights which meant the right to life,
liberty and property. The supreme virtue of the rule of law is therefore, that
is serves to protect the individual citizen from the State or State officials. It
ensures a "government of laws and not of men". Therefore the rule of law
means that the law rules using the word "law" in the sense of "jus" and "lex"
both. It refers to a government based on the principles of law and not of
men. It is modem name for natural law. This concept of rule of law which
embraces within its fold legislation and principles of natural justice is so
powerful and all prevading that no democratic country could afford to
disregard it. It is therefore the sole basis of
Administrative Law structure
In its ideological sense, the concept of rule of law represent an ethical
code for the exercise of public power in any country, the basic postulates of
which includes equality, freedom and accountability. These concepts
represent values and not institutions. Every executive, legislative and
judicial exercise of power must depend on this ideal for its validity.
Consequently it is the rule of law which must define laws rather than law
defining the rule of law. Dicey's concept of rule law4
Dicey's Rule, of law was founded on the separation of powers, fixed
public attention on administrative law & delegated legislation. He attributed
the following three meanings to the doctrine of Rule of Law: (i) Supremacy
of law, (ii) Equality before law, and (iii) Predominance of legal spirit. Dicey
developed this theory of Coke in his classic book "The Law of the
Constitution" (published in the year 1885), at the end of the golden Victorian
era of laissez-faire in England. That was the reason why Dicey's concept of
the rule of law contemplated the absence of wide powers in the hands of
government officials because, according to him, wherever there is discretion
there is a room for arbitrariness.
The concept of Rule of Law developed by him in his famous book
"An introduction to the study of law of the Constitution", thus includes the
following three ideas:
(i) Supremacy of Law
(ii) Equality before Law, and
(iii) Protection of Individual's Liabilities
(i) Supremacy of Law
The 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 authority on the part of the government. In his
words, "wherever there is discretion, there is a room for arbitrariness and
that in a republic no less under a monarchy, discretionary authority on the part of
government means insecurity for legal freedom on the part of its
subjects.
It also means that no one should be punished except for breach of law.
This is the most fundamental features of the rule of law because it
distinguishes between rule bound government and arbitrary government,
suggesting that where the rule of law exists government cannot �simply act
as it please. Eg. It cannot punish citizen merely because it objects to their
opinions or disapproves of their behaviours.
(ii) Equality before Law
Explaining the second principle, Dicey states that there must be
equality before the law or equal subjection of all classes to the ordinary law
of the land administered by the ordinary courts. He criticized the French
legal system of' Droid Administrative in which there were separate
administrative tribunals for deciding cases between the officials of the State
and the citizens. According to him, exemption of civil servants from the
jurisdiction of the ordinary courts of law and providing them with the special
tribunals was the negation of equality.
It also means that law should not discriminate against people on the
grounds of race, gender, religion, creed, social background and so forth. It
should apply equally to ordinary citizens and to government officials. (iii)
Predominance of Legal Spirit
Explaining the third principle, Dicey asserts that rights (e.g. right to
personal liberty, freedom from arrest etc) are the result of judicial decision in
concrete cases which have actually arisen between the parties. The
constitution is not the source but the consequence of the right of the
individuals. Thus, Dicey emphasised the role of the courts as guarantors of
liberty and suggested that it 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.
The Rule of law requires that the right and liberties of the individuals
are embodied in the ordinary law of the land. This would ensure that when
individual rights are violated citizens can seek redress through courts.
Criticism of Dicey's Concept
Dicey's concept of rule of law had its own advantages and merits
although absence of discretionary power or absence of inequality are not
possible in this administrative age, yet the concept has proved to be an
effective instrument in confining the administrative authorities within their
limits. It served as a kind of touch stone to judge and test administrative law
prevailing in the country at a given time. Rule of law articulates the
supremacy of courts, and therefore, courts should have the power of judicial
review of administrative actions. The thesis of Dicey had tremendous impact
on the growth of administrative law in England where people till recently were not
ready to accept anything like administrative law for it had not come
into being there. People still believe that so long as ordinary courts are there,
they can control the administration in all its action.
Even in 1885, Dicey was factually wrong in his analysis as:-
1) He ignored the privileges and immunities enjoyed by the crown under
the cover of the Constitutional maxim that the king cannot do wrong
and also ignored the many statutes which conferred disciplinary
powers on the executive. Which could not be called into question in
ordinary court.
2) He also ignored the growth of administrative tribunals, quite few
which had come into existence by 1885.
3) While Dicey was denying the existence of administrative law in
England, his contemporary, Maitland, perceived its emergence.
However Dicey later himself became conscious of the emergence of
administrative law in England.
4) Dicey dealt with individual liberty and criticised administrative
discretion but he failed to distinguish between discretion given to
public officials by statute and the arbitrary discretion claimed by the
king. And if it is contrary to the rule of law that discretionary
authority should be given to Government departments or public
officers, then the rule of law is inapplicable to any modem constitution. Dicey's
dislike of discretionary power was due to the fear
of abuse and to the belief that the judicial function consists in
applying the settled principle of law and not in the exercise .of
discretionary power. Thus if discretion is opposed to the rule of law
then a final Court like our Supreme Court with discretionary power to
admit or reject an appeal or application would contravene the rule of
law because it possesses this power and can exercise it without
assigning any reasons. Further, the power to adjoin a case, to condone
delay, to award costs are discretionary powers and may be abused like
all discretionary powers. Thus the ultimate guarantee against abuse of
discretionary power lies in the political and legal safeguards against
such abuse, in a vigilant public opinion and in a sense of justice in the
people generally and not in the exclusion of administrative discretion
on the part of government.
5) Dicey created a false opposition between ordinary law and special law
and between ordinary courts and special tribunals when he says first
that the rule of law required the equal subjection of all classes to the
ordinary law of the Courts and secondly that the rule of law was
inconsistent with administrative law and administrative tribunals.
Because, as Delvin J. put it: 'It does not matter where the law comes
from or whether the law is made by parliament or by judges for what
matters is the law (of England2 of a country'. Dicey himself
recognised that it may be necessary to create a body of person for
adjudicating upon the offences or the errors of civil servants as such adjudication
may be more effecting in enforcing official law. Thus his
antithesis was false in fact and untenable in principle.
6) He misunderstood and miscomprehended the real nature of the French
droit administrative i.e., he thought discretion is same as arbitrariness.
The notion which lies at the bottom of the Droit administrative is that
affairs or administrative law disputes in which the government or its servants
are concerned are beyond the sphere of the civil courts and must be dealt
with by special and more or less official bodies. In other words by
administrative discretion which in the words of Dicey resulted into
miscarriage of justice and it could not protect the private citizen from the
excesses of the administration. It was not true because researches have
shown that the rules of Droit Administrative were made neither to justify the
arbitrary powers of administrative officials nor to narrow the field of
citizen's liberty but to help citizens against the excesses of the
administration. He also failed to notice the actual working of the Council
d'Etat [the highest administrative Court in France] which shows that it gave
protection to the citizen against the arbitrary actions of the administration.
The concept advocated by Dicey has been criticised from various
angles. According to Dicey (1) there should be no interference by the
Government and (2) that the courts were supreme in determination of
disputes since everyone was equal before law. But the first meaning was
much less true than in Dicey's time and the second meaning has become
untrue since Dicey's time. Passing of the Crown Proceedings Act, 1947
(abolishing Crown privilege in litigation), curtailment of liberties, establishment
of Tribunals for deciding issues other than the common law,
the rise of trade unionism which coerced the English Parliament into
granting them immunity from the ordinary rules of law (e.g. immunity from
liability is tort} and the increase in lawlessness and the decline in trust in the
courts are the proofs in support of the above. Besides, his conception about
the third meaning was wholly wrong as it was based on the idea of
sovereignty of Parliament. The Judiciary in England according to him was
only the interpreter of the Act and nothing more. This was so because in
England there are no constitutional guarantees as they exist in the written
Constitutions of India and America.
However, as observed by Dr. Jain, in substance Dicey's emphasis on
the whole, in his enunciation of Rule of Law, is on the absence of arbitrary
power, equality before law and legal protection to certain basic human
rights, and these ideas remain relevant and significant in every democratic
country. It is also true that dictated by needs of practical government, a
number of exceptions have been engrafted on these ideas in modem
democratic countries, e.g., there is a universal growth of broad discretionary
powers of the administration; administrative tribunals have grown; the
institution of preventive detention has become the normal feature in many
democratic countries. Nevertheless, the basic ideas are worth preserving and
promoting. The concept of Rule of Law, which arose and developed in Anglo-
American countries and which is the backbone of a welfare State has been
accepted in India under Parts III and IV of the Constitution.
In order to achieve the objectives outlined in the Constitution of India;
Justice, Liberty, Equality and Fraternity: Rule of Law is the only instrument
available. Otherwise people will not be able to control and c.urb
monopolistic power and madness of political' parties which "drains vitality
from the rule of law". As expressed by the Law Commission of India in its
Fourteenth Report, where there is no effective opposition in legislature, the
legislature and the executive inevitably tend to be intolerant and sometimes
even contemptuous of the decisions of the Courts interpreting laws in a
manner which they consider to be opposed to their policies. This tendency to
trample ruthlessly upon the rights of the individuals with the aid of
steamroller majority is to be deprecated. This nation has experienced this
truth.
As Ramachandran in his treatise says, "Government and their
policies may change. What constitutes to the stability of the State is its
judiciary. Amidst the strident clamaur of political strife and the tumult of the
clash of conflicting classes the Courts of Law remain steadfast and impartial.
Only a real and full acceptance of these principles can enable our new born
democratic republic to survive."
The Indian Law Institute gives the following meaning to Rule of Law; a) Powers of
executive may be increased only in unavoidable
circumstances.
b) Discretionary powers of the executive should be limited.
c) Power handed over to executive is not its inherent power, it is granted
to it by law.
d) Administrative decisions should be subject to judicial review.
e) There should be proper publicity in case of delegated legislation and it
should be subject to control of Parliament and Judiciary.
f) Principles of natural justice should be observed by administration
while decisions are taken.
The Supreme Court of India explaining this concept said in Soma Raj
Case:
"The absence of arbitrary power is the first postulate of Rule of Law upon
which our constitutional edifice is based. If the discretion is exercised
without any principle or without any rule, it is a situation amounting to the
antithesis of Rule of Law."
Declaration of International Commission of Jurists
The idea of the Rule of Law was formulated in some detail by the
International Commission of Jurists, a voluntary body of lawyers, not
associated with any governments, in their Declaration of Delhi in January,
1959. This declaration may be summarised as follows:-
a) The function of the legislature in a free society under the Rule of Law
is to create and maintain the conditions which upheld the dignity of
man as an individual. The dignity requires not only certain recognition of his
civil and political rights but also establishment of the social,
economic, educational and cultural conditions which are essential to
the full development of his personality.
b) The Rule of Law depends. not only on the provisions of adequate
safeguards against the abuse of power by the Executive, but also on
the existence of effective government capable of maintaining law and
order and of ensuring adequate social and economic conditions of life
for the society.
c) The criminal process and the Rule of Law in criminal matters,
according to the third committee, the rule of law requires, interalia,
certainty of the criminal law, presumption of innocence, and a public
trail with a right to legal remedies, including an appeal. It is also
necessary that the arrest is strictly regulated by law; detention pending
trial is permitted only in the interest of public security or the
administration of justice; counsel of one's choice is permitted; and an
accused is not compelled to incriminate himself.
d) An independent judiciary and a free legal profession are indispensable
requisites for a free society under the Rule of Law. To an Englishman
a free judiciary seems self-evident and does not need elaboration, but
an independent legal profession is almost as important.
The success of the Rule of Law in England was due to the cooperation
between the lawyers and the judiciary, on one hand, and Parliament, on the
other hand. The Rule of Law and the sovereignty of Parliament worked
harmoniously in their common attempt to limit the power of executive. But the basic
weakness of the rule of the law based on ordinary law is that the
spirit of the rule of law is prevented when legislation results in unjust laws.
RULE OF LAW IN INDIA5&6
The concept of Rule of Law in its ordinary sense of supremacy of law,
had its groundings in India from the very beginning of its civilization. In
ancient times Rule of Dharma prevailed in the form of Dharma Shastras or
Neethi Shastras. Even the King was under the Rule of Dharma and was not
exempted from it. Brahdaranyaka Upanishad states that: law is the King of
Kings. Some of the important rules based on Dharma Sashtra, Neethi Sashtra
and Artha Sashtra were as follows:
(a) No decision shall be given by a person singly;
(b) They must hear both parties to a cause;
(c) They must not have any bias or interest in the cause;
(d) The hearing must be in the open in public view;
(e) They must not be prejudiced against either party for any
extraneous reasons;
(f) They must pronounce judgement and give their reasons for their
findings.
Even during Moghul Rule in India, the supremacy of law was
recognized.
However, when the East India Company stepped in India, the concept
of the Rule of Law in England by Dicey, it was not extended to India. The
English remained a Privileged community. With the establishment of Supreme Court at
Calcutta in 1774 an effort
was made to make judiciary independent of the executive. However, the
powers of the courts were weakened on the enactment of Settlement Act of
1781.
Rule of Law in its modem concept was again established in India after
independence when in 1950 the Constitution of India was made the supreme
law of the land. The Rule of Law was placed on a footing higher than
ordinary legislation. Any law inconsistent with the Constitution is null and
void. The suppression of liberties by legislation occurred not only in India,
but elsewhere also.
Post Independence Position
Rule of Law in India is established in Habeas Corpus Case, [ADM,
Jabalpur v. S.K. Shukla, AIR 1976 SC 1207], in that case Justice Ray said
that, "The Constitution is the rule of law" and that "no one can rise above the
rule of law in the Constitution." Various Constitutional and other provisions
illustrate that a rule of law exists in India:
a) The ideal and objective of the Constitution is summed up in its
opening words i.e. the Preamble which speaks of justice, liberty,
equality, fraternity and dignity of the individual.
b) To give content to these ideals the Constitution guarantees the
fundamental rights to the individual and imposes some positive
obligations on the State in the form of directive principles.
c) The fundamental rights can't be abridged or taken away by legislation
in a manner that 'affects the 'basic structure' of the Constitution. d) Other
provisions in the Constitution-no tax can be collected nor
property be taken without the authority of law, freedom of trade,
commerce and intercourse throughout the territory of India, protection
to SCs, STs and backward classes, etc.
e) Provisions for fair trial are provided in the Cr. P. C. The presumption
of innocence of the accused is well established in our law.
f) Independence of judiciary is fully guaranteed under the Constitution.
g) Full autonomy has been ensured to the legal profession.
h) Judicial review of the executive and legislative measures keeps the
government's actions under proper control.
However, there are a number of factors which undermine the rule of law
in India:
1) Unguided discretion of administrative officials.
2) Existence of provisions like preventive detention under Article 22
of the Constitution.
3) Erosion of independence of judiciary by frequent transfers of High
Courts judges.
4) Suspension of fundamental rights (except Articles 20 and 21)
during emergency.
5) Limitations of judicial review.
6) Delays in dispensation of justice and high court-fees which
practically denies justice to the poor sections.
Nevertheless, we may say that by and large the Indian Legal System
provides all the machinery necessary for the development and maintenance of rule of
law. In recent years, the Supreme Court has recognized 'right to
information' as an implied fundamental right. Under Public Interest
Litigation, anyone having sufficient interest in the subject-matter of the
dispute, even though he himself is not an aggrieved party may approach the
court. These measures have greatly strengthened the rule of law by
protecting the liberties of the individual. Thus, rule of law is not a myth but a
reality in the Indian legal system.
Judicial activism and concept of Rule of Law7
A study of Keshavananda, Indira Gandhi & Habeas corpus cases,
writes Prof.
Upendra Baxi, �provides a distillation of Indian judicial thought on
the concept of the rule of law, which has evolved well over a quarter of
century.� of the rule of law, which has evolved well over a quarter of
century."
In Keshavanimd's case (AIR 1973 SC 1461) the rule of law was
considered as an "aspect of the doctrine of basic structure of Constitution
which even the plenary power of Parliament cannot reach to amend."
In Indira Nehru Gandhi v. Raj Narain (AIR 1975 SC 2299), the
supreme court holding clause (4) of Article 329(A) inserted by 39th
Amendment in the constitution as unconstitutional (under this provision, the
election of P. M. & Speaker was kept in 9th schedule of constitution could
not be challenged in a court of law and Representation of People Act would not be
applicable to election of PM & this was given retrospective effect)
said that it was volatile of rule of law which was part of basic structure of
constitution. Mathew J. was of the view that clause (4) of Article 329(A)
offends the rule of law which is pervading spirit of the constitution. The rule
of law excludes arbitrary action in any sphere of the government. Beg J.
observed that jurisdiction of Supreme Court to try a case on merits cannot be
taken away without injury to the basic postulates of the Rule of Law & of
justice within a politically dem9cratiC constitutional structure.
In A.D.M. Jabalpur v. Shiv Kant Shukla (AIR 1976 SC 1207),
popularly known as habeas corpus case it was recognised that in spite of the
unfortunate order to the effect that the doors of the court during emergency
are completely shut for detenus, it is gratifying to note that the concept of
rule of law can be used as legal concept. In this case attempt was made to
challenge the detention orders during emergency on the ground that it
violates the principles of the Rule of Law.
In Maneka Gandhi v. Regional Passport Officer [(1978) 1 SCC
248] Section 10 (3) (c) of the passport Act, 1967 was held ultra vires since it
provided impounding without procedure. This case also strengthens the rule
of law with reference to personal liberty.
In S.P. Gupta v. Union of India, 1982 Supp SCC 87, the Supreme
Court ruled that "The right to know" has become an integral part of the
citizen's right in our democracy. Insofar as "right to equality" is concerned
discrimination in payment to employees was held to violate this right and
classification of pensioners on unreasonable ground was held to be artificial
and arbitrary.
In Minerva Mills Ltd. v. Union of India, (1980) 3 SCC 625, the
question was regarding power to amend the Constitution (39th Amendment
Act). The Supreme Court held that Article 368 does not enable Parliament to
alter the basic structure framework of the Constitution, any Act giving
Parliament a vast and undefined power to amend the Constitution is limited
and under the exercise of that limited power, it cannot enhance or enlarge
that very power' into an absolute power. Indeed, a limited amending power
is one of the basic features of our Constitution�. the donee of a limited
power cannot by the exercise of that power convert the limited power into an
unlimited one. The newly inserted clauses (4) and (5) of Article 368 were
therefore held to be unconstitutional. The decision thus fortifies the idea of
the rule of law.
The modern concept of the Rule of Law is fairly wide and set up an
ideal. for any government to achieve. In this sense, the Rule of law 4nplies
that the functions of the government in a free society should be so exercised
as to create conditions in which the dignity of man as an individual is
upheld. This dignity requires not Nature and Scope of Administrative Law)
only the recognition of certain civil or political rights but also creation of
certain political, social, economical, educational and cultural conditions
which are essential 10 the full development of his personality. To achieve
this, during last few years the courts have developed some fine principles to
establish a rule of law society in India not only by providing constraints on
governmental actions but also by imposing and insisting on "fairness" in
every aspect of the exercise of power by the State. Thus the efforts of the
Courts in legitimizing "due" administrative powers and illegitimizing
"undue" powers by operationalizing substantive and procedural norms and
standards can be seen as a high bench mark of judicial activism for firmly
establishing the concept of the Rule of Law in India.
Thus in Sheela Barse v. State of Maharashtra (AIR 1983 SC 378)
the court insisted on "fairness" to the women in police lock up and drafted a
code of guidelines for the protection of female prisoners.
In Veena Seth v. State of Bihar (AIR 1983 SC 339), the S.C.
extended the reach of rule of law to the down trodden and the poor. It ruled
that rule of law does not exist merely for those who have means to fight for
their rights and very often for perpetuation of the status quo which permits
them to exploit a large section and community. Thus the efforts of the courts
in legitimizing' due' administrative powers and illegitimatizing "undue"
powers by operationalizing substantive and procedural norms and standards
can be seen as high bench mark of Judicial activism for firmly establishing
the concept of rule of Jaw in India.
In State of M.P. v. Rameshanker Raghuwanshi the court secured
'fairness' in public employment by holding that reliance on police reports is
entirely misplaced in a democratic republic. Thus the efforts of the courts in
legitimising "due" administrative powers and illegitimating "undue" powers
by operationalizing substantive and procedural norms and standards can be
seen as a high bench mark of judicial activism for firmly establishing the
concept of the Rule of law in India.
In P. Sambamurty v. State of A.P. (1987) I SCC 362 case, stated
that Article 371-D(5) (proviso) of the Constitution violated the concept of
Rule oflaw which is part of basic structure, and is an essential feature of the
constitution. Under the provision, the State of Andhra Pradesh had nullified
a decision of the Administrative Services Tribunal. The SC held that the
provision was ultra vires as it conferred arbitrary power on the State to
encroach on the rights of citizens. Court also held that exercise of power by
the executive or by any other authority must not only be conditioned by the
Constitution but must also be in accordance with law.
In Delhi Transport Corporation V.. D.T.C. Mazdoor Congress (Air
1991 SC 101) Ramaswamy J., Succinctly formulated the meaning of rule of
law thus: The absence of arbitrary power is the first essential of rule of law
upon which whole constitutional system is based. In a system governed by
rule of law, discretion when conferred upon executive authority must be
confined within defined limits. The Rule of Law from this point of view
means that decisions should be made by application of known principles and
rules and, in general such decisions should be predictable and the citizen
should know where he is In recent, the Supreme Court has evolved a whole lot of
'human rights
jurisprudence' by giving a liberal interpretation to Article 14 (Right to
Equality). Article 19 (Freedom of Speech, Expression, etc) and Article 21
(Right to Life and Personal Liberty) of Constitution. Thus, various 'implied'
fundamental rights like right to information, right to dignity, right to free
legal aid, right to speedy trial, right to clean environment, right to livelihood,
etc. have emerged. Further, under public interest litigation, anyone having
sufficient interest in the subject-matter of the dispute, even though he
himself is not an aggrieved party may approach the court. These measure
have greatly strengthened the rule of law by protecting the liberties and
ensuring the dignity of the individual.
In the final analysis, we� may State that the rule of law means;
(i) a system of rules; (ii) fixed rules (as opposed to discretionary rules;
(iii) due process off fairness of law-law has to be just law; (iv) natural law,
i.e. morals universally applicable; and (v) judicial review
The modern concept of rule of law is fairly wide and, therefore, sets
an ideal for any government to achieve. It is the fullest possible provision by
the community of the conditions that enable the individual to develop into a
morally and intellectually responsible person. Rule of law cannot be
established merely by enacting laws and giving rights to the people. The
desire for it must be a goal of every citizen of this country. In conclusion we may
say that by and large the Indian legal system
provides all the machinery necessary for the development and maintenance
of the Rule of Law.
Separation of Powers
According to Jain & Jain, "If the 'Rule of law' as enunciated by Dicey
affected the growth of Administrative law in Britain, to doctrine of
'Separation of power' had an intimate impact on the development of
Administrative law in the USA.
The concept of separation of powers, which was first coined by the
French Enlightenment thinker Motesquieu (18th century), has become a
model for the governance of all democracies. Montesquieu in his Spirit of
Law wrote, "When the legislative and executive powers are united in the
same person, or in the same body of magistrates, there can be no liberty....
Again, there is no liberty, if the judicial power be not separated from the
legislative and executive." Further, Montesquieu feared tyranny in the
absence of separation of powers: "There would be an end of everything,
were the same man or same body, whether of the nobles or of the people, to
exercise those three powers, that of enacting laws, that of executing the
public resolutions, and of trying the causes of individuals."
Under Motesquieu's model the State is divided into branches, and
each branch of the State has separate and independent powers and areas of
responsibility. But this is only half the story, as each branch is also able to
place specified restraints on the powers exerted by the other branches. The
normal division of branches is into the executive, the legislative and the
judicial.
Accepting the hypothesis that every government has three organs, the
doctrine (If separation of power according to Wade and Phillips visualises
three fold structural classification of powers.
a) The same person should not form part of more than one of the three
organs of government.
b) One organ of the government should not interfere with any other
organ of the government. Thus executive should not have rule making
power.
c) One organ of the government should not exercise the functions
assigned to any other organ. Thus administration should not discharge
the function of judiciary even under the banner of administrative
tribunal.
The aim of the doctrine is to guard against tyrannical and aribtrary
powers of the State.
The rationale underlying the doctrine has been that if all power is
concentrated in one and the same organ there would arise danger that it may
enact tyrannical laws, execute them in a despotic manner and interpret them
in arbitrary fashion, without any external control.
Proponents of the theory of separation of powers believe that it
protects democracy and forestalls tyranny. Opponents feel that, regardless of
whether it accomplishes this end, it also slows down the process of governing, and
promotes executive dictatorship and unaccountability, and
the marginalization of the legislature.
Constitutions with a high degree of separation of powers are found
worldwide, and are particularly common in America, where the US system
was the first such system to have demarcated powers amongst various
organs. The UK system is distinguished by a particular intertwining of
powers. Indian democratic system, though broadly similar to that of UK,
also offers separation of powers and independence of the judiciary due to
incorporation of these features of the US model in the Indian constitution.
Difference between Separation of Powers & Fusion of Powers
Separation of Powers
1. "Separation of powers" is a feature more inherent to presidential
systems.
2. Each branch is largely independent of the other branches. In other
words, each branch is either selected independently of the other
branches, or at least is not dependent upon the other branches, or at
least is not dependent upon the other branches for its continued
existence.
3. The executive is not selected by the legislature, but by some others
means (direct popular election, electrol college selection, etc.)
4. In a parliamentary system, when the term of the legislature ends, so
also my the tenure of the executive selected b y that legislature. Fusion of Power
1. "Fusion of powers" is characteristic of parliamentary systems.
2. One branch (invariably, the elected legislature,) but by some other
means branches are subservient to this supreme branch.
3. In a �presidential� system, the 4 executive�s term may or may not
coincide with that of the legislature�s but gain, its selection is
technically independent of the legislature.
4. In a fusion of powers system the best-known of which is the United
kingdom- the legislature is elected by the people, and then this
legislature �creates� the executive.
Separation of Powers in Practice
(a) In England
1) The king though is an executive head, is also the integral part of
the legislature and all his ministers are also members of one or the
other of the houses of Parliament.
2) The House of Commons controls the executive.
3) The judiciary is independent but the judges of the superior courts
can be removed on an address from the both houses of the
Parliament. (b) In USA
The American constitution reads" All legislative power herein granted
shall be vested in the congress (Article I Section I). The executive power
herein granted shall be vested in a President (Article II Section I). The
judicial powers shall be vested in one SC and in inferior courts (Article III
Section I)". Though it seems that there exist a watertight compartment
separation of powers between the three organs but the reality proves
otherwise.
1. The President of USA interferes with the exercise of power by the
congress through the exercise of his veto power. The president also
interferes with the functioning of the S.C. through the exercise of
power to appoint judges. He also exercise the law making power in
exercise of his treaty making power.
2. Congress also interferes with the exercise of powers by the courts
by passing procedural laws creating special courts and by
approving the appointment of judges.
3. The judiciary interferes with the powers of the congress and the
President through the exercise of its power of judicial review.
But there are a few exceptions, like President has the veto power and
Senate being legislative body performs executive function. This is justified
on the principle of checks and balance wherein each organ keeps a check on
other organ. Thus administrative law and separation of powers go hand in hand with
each
other, having common objective i.e. to decrease concentration of power in
one hand and to ensure there is no arbitrary use of power.
(c) In India
The doctrine of separation of powers is not accorded a constitutional
status.
Apart from the Directive principles laid down in Article 50 which
enjoins separation of judiciary from the executive, the constitutional scheme
does not embody any formalistic and dogmatic division of powers. In India
we have parliamentary form of government where executive is very
important part of legislature. We do not follow this doctrine with rigidity but
then the essential functions have been sufficiently differentiated and it is an
assumption that one organ of the State will not perform the functions of
another organ of the state. Every organ of the State has to perform the
essential functions i.e. the legislature must legislate, the executive must
execute and the judiciary must adjudicate. Functional overlapping is
permissible under constitutional limits.
Article 53(1) provides that the executive power of the union shall be
vested in the president and shall be exercised by him directly or through
officers subordinate to him in accordance with the constitution.
Article 154(1) executive power of the State vests in governor.
Article 141 of the Constitution states that the law declared by the
supreme court shall be binding on all courts within the territory of India.
However, there is a functional overlapping between the three organs
which is justified on the basis of the theory of checks and balances.
Thus the exceptions are:
No bill can become an Act unless presidential assent is received.
Here, President being the executive head perform legislative functions.
Article 123 further states about the power of the president to
promulgate ordinance when both houses of the parliament are not in session.
Here, too the executive performs legislative functions. Similarly, Article 213
is applicable to the Governor of the state.
Article 72 of the Constitution states that the President shall have the
power to grant pardon, reprieve, respite or remission of punishment or
sentence. To that extent executive is performing judicial functions.
Article 105 provides that the legislature may impose penalty on
member when there is breach of privilege. To that extent, legislature
performs executive functions.
Under Article 145 Supreme Court has been given power to prov1de
for rules and regulations for performance of judicial functions. To that extent
it performs legislative functions. However, the doctrine has not become
redundant. It is comprehending administrative law to achieve the object of
checking the encroachment of power conferred to administrative authorities.
Judicial approach towards the doctrine of separation of powers:
I. In re Delhi Laws Act AIR 1951 SC 332- Justice Mahajan said that
such type of doctrine has no mention in the Indian Constitution. This trend
continued fo sometime, however in 1955, in a constitutional law case courts
made a deviation.
Ram Jawaya v. State of Punjab (AIR 1955 SC 540)
Fact
The Punjab government by series of notifications (with aim of
nationalising text books) placed some restrictions upon the petitioner's
business of printing and selling text books for the schools. Private publishing
houses were thus ousted from text book business. This order was challenged
on the ground that executive power of the State did not extend to
undertaking trading activities without a legislative sanction.
Observation and Decision
The court observed, "Ordinarily the executive power connotes the
residue of governmental functions that remain after legislative and judicial
functions are taken away". It is neither necessary nor possible to give an
exhaustive enumeration of kinds and categories of executive functions.
Article 73 of the Constitution provides that the executive power of union
shall extend to the matters with respect to which Parliament has power to
make laws. Similarly Article 162 provides for in case of State government.
Neither of these articles contain any definition as to what the executive
function is and what activities would came within its scope.
Mukherjee C.J., observed" Indian constitution has not indeed
recognised the doctrine of separation of powers in its absolute rigidity but
different branches of the government has been sufficiently differentiated and
it can be very well said that our constitution does not contemplate
assumption of all power by one organ or part of the functions that essentially
belong to another.
In R.K. Dalmiya v. Justice Tendolkar (1959) the court held that the
essential features of the Constitution have been differentiated. The organ of
the State will not interfere with the other organ of the State. This kind of
justification is based on principle of restraint & principle of checks &
balances.
"In Keshwananda Bharti v. State of Kerala (1970) the court stated
that separation of power is a basic feature of the constitution.
Indira Nehru Gandhi v. Raj Narain
(AIR 1975 SC 2299)
(In this case doctrine of separation of power was examined in
detail.) Facts
The election to the Parliament of the then Prime Minister, Mrs. Indira
Gandhi, was challenged in the Allahabad High Court on grounds of use of
corrupt practices in the election process. The High Court disqualified Mrs.
Gandhi. An appeal was made to Supreme Court. While an appeal was
pending, Parliament passed the 39th Constitutional Amendment, whereby
the Courts jurisdiction over matters involving the Prime Minister and other high
officials was withdrawn. This was challenged in the Supreme court on
several grounds including the breach of separation of powers.
Decision
A constitution bench of the Supreme Court held the amendment
unconstitutional on the ground of separation of powers, among others.
Raj C.J.: held that in the Indian Constitution, there is separation of powers in
the broad sense, as opposed to the strict separation of powers as recognised
in the United States and Australia.
Khanna J.: Opined that a declaration that an order made by a Court
of law is void is normally part of the judicial and not the legislative function.
Although there is no rigid separation of powers in the Constitution of India,
by and large, the spheres of judicial function and legislative function have
been demarcated, and it is 110t permissible for the legislature to encroach
upon the judicial sphere. He cited many precedents to hold that while a
legislature is entitled to change with retrospective effect, the law which
formed the basis of the judicial decision, it is 110t permissible for the
legislature to declare the judgement of the Court to be void or not binding.
Justice Beg added that separation of powers is a part of the basic
structure of the constitution. None of the three separate organs of the
republic can take over the function assigned to other. This scheme of the
constitution cannot be changed even by resorting to Article 368 of the
constitution. In India, not only there is judicial overlapping but there is
functional overlapping also. The S.C. has the power to declare void the laws
passed by the legislature and actions. taken be executive if they violate any
provision of the Constitution or the law passed by legislature in case of
executive actions.
The President of India in whom vests the executive authority exercises
law making power in the shape of ordinance making power under Article
123 and also the judicial powers under Article 103(1) and Article 217(3)
[appointment of judges of S.C. & High Courts].
Though Judiciary exercises all judicial powers, at the same time, it
exercises certain executive or administrative functions also. The High Court
has supervisory power over all subordinate courts and tribunals (Article 227)
and also power to transfer cases.
If we study the constitutional provisions carefully, it is clear that the
doctrine of separation of powers has not been accepted in India in its strict
sense. There is no provision in the constitution itself regarding the division
of functions of the government and the exercise thereof. Though under
Article 53(1) and Article 154(1), the executive power of the union and of
State is vested in the President and the governor respectively. Thus it is
sufficiently differentiated but at same time Constitution also provided for
functional overlapping of the three organ i.e. Legislative, executive and
judiciary and justify it by Doctrine of Restraint and Checks and balances.
For example:ASSIGNMENT
THE ADMINISTRATIVE LAW (K-201)
Unit � I
Q.1. Define �Administrative Law� and state the reasons for its growth in the 20th
century.
Q.2. Explain the definition of Administrative Law. Discuss reason for
divergence of opinion regarding the conception of Administrative.
Q.3. Explain the Nature, Scope and definition of Administrative Law.
Q.4. Explain the evolution of Administrative Law and its relationship with
Constitutional Law.
Q.5. Explain the Dicey�s Concept of �Rule of Law� and analyze the Provisions at
the Indian Constitution.
Q.6. Define the Separation of Powers.