Harsh Krishnatrey, 9833406306

LL.M, MBA, MA, B.Sc., Music Visharad

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Date 09.01.2023, Time- 5.30 pm to 7 pm
Lecture at Ambedkar Law College
LL.B. 2nd yr., III semester

The need for Administrative Law

The reason for its growth

1. The modern concept of a welfare state

As we discussed earlier in our previous lecture, the State is no longar
confined to its traditional twin roles of external defence and
maintenance of internal law and order. Now there is no scope for
“laissez-faire”, the modern State is a welfare state.

2. The Inadequacy of ordinary Courts of Law

The judicial system (consisting of the of ordinary courts)
a. proved inadequate to decide and settle all types of disputes.
b. Litigation in the ordinary courts is well known for its delay and
expenses.
c. The element of expert knowledge necessary in various disputes, is
missing
d. Courts are too formal in their approach
e. Burning problems which arise today cannot be solved by a literal
interpretation of the sections contained in a statute, but require a
serious consideration of various other factors, which is not done by
the ordinary courts
f. The courts are already so over-burdened, that even urgent matters
like those involving strikes or lockouts cannot be speedily disposed
of

3. Modern legislatures are over-burdened with work. They have neither

the time nor the technique nor the expertise to provide for the detailed
rules which are necessary to regulate the complex socio-economic
relation in modern society. Even when the legislature has attempted to
lay down detailed rules and procedures, the same was found to be
both inadequate and defective. The legislature lacks the technical and
expert knowledge required in modern legislation. This led to delegation
of some powers to the administrative authorities and development of
the law in relation thereto.

4. Flexibility & Experimentation

Legislation is rigid but administrative process is flexible.
When a rule is formed by the legislature, it cannot be easily repealed.
Legislation is rigid in nature, with little scope of experimentation. But
 there is lot of scope for experimentation in the administrative process.
A rule can be drafted, tried out for some time and then altered,
modified or even abrogated within a short period, if found
unsatisfactory or unworkable.

5. Preventive measures
The administrative process can tackle a problem at the preventive
stage. It does not wait for a dispute to arise between private parties
leading to prolonged litigation. The preventive action is more effective
than subsequent punishment. (e.g. - Inspection and grading of answer
the consumer’s need m) ore adequately than does a right to sue the
seller after the consumer is injured - Freeman)

6. Effective steps for enforcing preventive measures

E.g. -The authority which issues a food license can also suspend,
revoke or cancel the license, confiscate and destroy contaminated
food. Such measures are not easily available with ordinary law courts.

7. Technicalities can be avoided

The law courts are conservatives, technical and bound by rules of
evidence and procedures. Administrative authorities can take a
practical view in solving even most complex problems. While the
ordinary courts take theoretical and legalistic approach; administrative
authorities can take a pragmatic (dealing with things sensibly and
realistically) and functional approach.

Sources of Administrative Law

1. Judicial decisions (The bulk of Administrative Law in India is

judge made law)
2. Statutes (Various statutes have been passed regulating
various aspects of Administrative Law. E.g. – In USA
Administrative Procedure Act-1946)
3. Reports of Committees
4. Rules and Regulations framed by the Government,
Departmental Manuals, Circulars etc.
5. Administrative practices

The Doctrine of Separation of Powers

& The Rule of Law & Droit Administratif

The Rule of Law

One of the basic principles of the English Constitution is the Rule

of Law. This doctrine is accepted in the constitution of USA and
also in the Constitution of India.
The entire basis of Administrative Law is the doctrine of the rule
of law.
Sir Edward Coke (the Chief Justice in James I’s reign) was the
originator of this concept
Dicey developed this theory of Coke in his classic book “The Law
and the Constitution” published in the year 1885

According to Dicey, the rule of law is one of the fundamental

principles of the English Legal System. He attributed the
following three meanings of the said doctrine:

(i) Supremacy of Law;

(ii) Equality before law; and
(iii) Predominance of legal spirit

Supremacy of Law; Dicey states that 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, or prerogative or even wide discretionary
authority on the part of the Government. Whenever there
is discretion, there is room for arbitrariness. As wade says
the rule of law requires that the Government should be the
subject to the law, rather than the law subject to the
Government. In other words, 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. Dicey described this principle as the
‘the central and most characteristic feature’ of Common
Law.

Equality before law; All persons to be subject to the same

law and the same courts i.e. all the classes of persons
must be governed by the ordinary law of the land, as
administered by the ordinary courts. Dicey criticised the
French system of droit administrative, where special
courts were set up to deal with disputes between citizens
and government officials. According to him, all persons
(Private and Staff officials) should be subject to one and
the same law.

Predominance of legal spirit – According to Dicey, the

third underlying principle of the Rule of Law is the
individual’s fundamental rights are preserved, not by
written guaranteed (a written constitution), but by the
courts of law. Thus, in England a person’s rights to
personal liberty, freedom from arrest, etc are not
 guaranteed by any written constitution; they are the result
of judicial decisions in certain cases. Dicey said, “Habeas
Corpus Acts declare no principle and define no rights, but
they are, for practical purposes, hundred constitutional
Articles guaranteeing individual liberty.”

1. Entick Vs Carrington (1765) – where a publisher’s

house was ransacked under the orders of the
Secretary of the State, damaged were awarded to the
publisher
2. Wilkes Vs Wood (1763) – damages of trespass were
awarded, despite the fact that the action complained of
was taken under the orders of a Minister.
Dicey contended, in the Droit Administratiff there was a separate body
of rules for State Officials. There were separate Courts known as
Administrative Courts, which had exclusive jurisdiction over State
officials. Whenever there was a conflict of jurisdiction between the
ordinary court and the Administrative Courts, the Administrative Courts
had the last say in resolving such conflict of jurisdiction.
Note-
a. The Constitution of India has adopted and incorporated the Rule
of Law. The ideals of justice, liberty and equality are reflected in
the Preamble of the Indian Constitution.
b. The Constitution of India under Chapter III guarantees
fundamental human rights to all persons.
c. The right to equality is enshrined in Article 14 of the Constitution
and recognizes that all persons are equal before the law.
d. Article 21. Protection of Life and Personal Liberty: No person
shall be deprived of his life or personal liberty except according
to procedure established by law. 
e. Art 32 / 226 -The principle of judicial review is an important
feature of the Indian Constitution, and the aggrieved party can
approach Supreme Court (Art 32) or the High Court (Art 226) to
redress his grievance.

1. C.S.C. Punjab v. Om Prakash, A.I.R. - Supreme Court observed,

“in our constitutional system, the central and most characteristic
feature is the concept of Rule of Law.”
2. A.D.M. Jabalpur v. S. Shukla (A.I.R. 1976)- Popularly known as
the Habeas Corpus case, the Supreme Court had to answer
whether the third limb of the Dacey’s doctrine (predominance of
the legal spirit) was also an integral part of the concept of the
rule of law under the Indian Constitution. Specific question was,
“whether any Rule of the Law existed in India, apart from the Art
21of the Constitution of India. The maximum judges answered
the question in the negative. “Art 21 is our rule of law regarding
life and liberty. No other rule of law can have a separate
existence as a distinct right.”
 (On June 25, 1975, the President, in the exercise of the powers
conferred by paragraph (2) of Article 352 of the Constitution,
declared that there is a serious emergency for which Indian
security is threatened by internal disturbances. On June 27,
1975, in the exercise of the powers conferred by Clause (1)
of Article 352 of the Indian Constitution, the President declared
that the right of any person (including a foreigner) to approach a
court for the application of his rights conferred by Articles
14, 21 and 22. The Constitution and all proceedings pending
before a court for the enforcement of the aforementioned rights
shall remain suspended during the period in which the urgency is
proclaimed.)

The term civil service may be defined in the following language:

The term generally refers to administrators paid for implementing the policies
of national governments. The origin of the term can be traced to the British
system of administration which was divided in military and civilian.

Some officials perform civil duties and some military duties. Hence civil service
is different from military service. Needless to say, that both civil and military
officers are parts of the state administration. But the functions of the two
groups are different and because of this a distinction has been drawn between
the two categories of officers.

The civil servants are also called bureaucrats and in general term it is called
bureaucracy. 

The Indian Civil Service (ICS), officially known as the Imperial Civil Service,

was the higher civil service of the British Empire in India during British rule in
the period between 1858 and 1947

They were appointed under Section XXXII(32) of the Government of India Act

1858, enacted by the British Parliament

The examination for admission to the service was first held only in London in the
month of August of each year. All candidate were required to pass a compulsory
horse-riding test.

At first almost all the top thousand members of the ICS, known as "Civilians",
were British, and had been educated in the best British schools.

Book “Apprentice to Power India 1904-1908 by Malcom Darling- ICS, Astt.

Commissioner of Punjab in 1904, Later become Financier Commission of Punjab
in 1936, Retired in 1940, Tutor and Guardian of Raja of Dewas State, Tukoji Rao
III. He invited EM Foster (writer of A Passage to India). On his arrival, like all
English man, he too had Racial Superiority, later changed his views. He made trip
on horse Peshawar to Jubbulpore (1400 km)

Before the First World War, 95% of ICS officers were Europeans
In 1922, Indian candidates were permitted to sit for the ICS examinations in Delhi;
in 1924

the 1935 Government of India Act

Classification of Services:
Part XIV of Indian Constitution provides for different types or classes of
services for India. The name of the chapter is Services under- Union and the
States. The Constitution has not elaborated the types and categories of
services. In accordance with the Constitution, we divide the services into the
followings categories —All India Services (AIS), State Services, and Local and
Municipal Services. There are four groups of central services—Central
Services Group A, Central Services Group B, Central Services Group C and
Central Services Group D.

In the AIS there are several groups and the most important groups are —
Indian Administrative Service (IAS) and Indian Police Service (IPS). From the
standpoint of prestige and status IAS and IPS are at the top position. These
two services are also called premier services in India. In fact, the holders of
these two most important posts manage and control the general and police
administration. So far as the administrative system in India is concerned it is
said that there is a difference. All-India Services include IAS and IPS. The
Central Services are divided into four groups. But the former is more important
than the latter.
In Group A of central services there are 34 types. Some of them are Indian
Foreign Service, Indian Audit and Accounts Service, Indian Statistical Service,
Indian Economic Service, Indian Information Service, Indian Railway Service
etc. In the Group B Services following categories are included—Central
Secretariat Service, Geographical Survey of India, Zoological Survey of India,
Central Secretariat Stenographers Service. In Group C All India Service we
find the following types. Members of the Clerical Service of Central Secretariat
and Telegraph Service.
The members of the Group C staff are recruited by the Staff Selection
Committee through an open competitive examination. The Staff selection com-
mittee sends the list of successful candidates to the various departments of
central government and they recruit from the list of successful candidates.
Finally, there is the Group D service. Peons, Gardeners etc. fall in this group.
Top central government officers appoint peons, sweepers and gardeners for
their use.
The All-India Services have a long history. The AIS system was introduced in
the first decade of the 20th century. There were several types of AIS and the
most important were Indian Civil Service and Imperial Police Service. There
were only few thousand ICS and IPS with whom the British government
administered undivided India. These two services were the most powerful
instruments of British administration in India. Of course, the public
administration of British India had to maintain law and order and to collect -
axes by adopting various penal measures.

Recruitment:
The recruitment policy for the persons in AIC services has been stated in our
Constitution. Art. 309 states that subjects to the provisions of this Constitution
Acts of the appropriate legislature may regulate the recruitment, and
conditions of service of persons appointed to public services and posts in
connection with the affairs of the union or any state (Art. 307).
The recruitment to the posts for both central and state governments shall be
done by constitutional bodies known as Public Service Commissions. There
shall be two broad Public Service Commission’s one for the AIS and the other
for the state services. The former is known as UPSC (Union Public Service
Commission) and the other is called State Public Service Commission.

“Both the parties to be heard”,

“Audi alteram partem”, which means listen to the
other side or let the other side be heard as well.

Natural Justice

As its name refers, it is a law of nature, which is not derived from

any constitution or statute. It is a law of equity, fairness and
reasonability. The two core principles of natural justice are:

1. Nemo debet esse judex

2. Audi alteram partem

Nemo debet esse judex: it is also known as the rule of bias or

doctrine of bias. It means the member of the judiciary should be
impartial and should act with no bias. 

The Principles of Natural Justice entails 3 principles:

 Rule Against Bias

 Rules for Fair Hearing
 Reasoned Decisions or Speaking Order

The idea of the maxim is to provide an opportunity for both the

parties to respond against the evidence through which the
judgements are made with an absolute fair hearing. The principle
of natural justice is not only a part or a provision in the
constitutional law of the United Kingdom and many other legal
systems but also been stated in ‘Arthashastra’ and in other
religious texts like the Bible and Hadiths.

In hadith number 3575 it is stated that: “When two litigants sit in

front of you, do not decide till you hear what the other has to say
as you heard what the first had to say, for it is best that you
should have a clear idea of the best decision”

In the case of Indian law, the rule of natural justice was derived

from article 14 and article 21 of the constitution.  Article 14 says
about equality. While article 21 enshrines about right to life and
personal liberty which is clearly defined in the case, Maneka
Gandhi vs. union of India