Administrative Law : Conceptual Analysis

Issues and Prospects

Introductory
Administrative law has become very necessary in the developed society, the
relationship of the administrative authorities and the people have become
very complex. In order to regulate these complex, relations, some law is
necessary, which may bring about regularity certainty and may check at the
same time the misuse of powers vested in the administration. With the
growth of the society, its complexity increased and thereby presenting new
challenges to the administration we can have the appraisal of the same only
when we make a comparative study of the duties of the administration in the
ancient times with that of the modern times. In the ancient society the
functions of the state were very few the prominent among them being
protection from foreign invasion, levying of Taxes and maintenance of
internal peace & order. It does not mean, however that there was no
th
administrative law before 20 century. In fact administration itself is
concomitant of organized Administration. In India itself, administrative law can
be traced to the well-organized administration under the Mauryas and
Guptas, several centuries before the Christ, following through the
administrative, system of Mughals to the administration under the East India
Company, the precursor of the modern administrative system. But in the
modern society, the functions of the state are manifold, In fact, the modern
state is regarded as the custodian of social welfare and consequently, there is
not a single field of activity which is free from direct or indirect interference by
the state. Along with duties, and powers the state has to shoulder new
responsibilities. The growth in the range of responsibilities of the state thus
ushered in an administrative age and an era of Administrative law.
The development of Administrative law is an inevitable necessity of the
modern times; a study of administrative law acquaints us with those rules
according to which the administration is to be carried on. Administrative Law

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has been characterized as the most outstanding legal development of the
20th-century.

Administrative Law is that branch of the law, which is concerned, with the
composition of powers, duties, rights and liabilities of the various organs of the
Government. The rapid growth of administrative Law in modern times is the
direct result of the growth of administrative powers. The ruling gospel of the
19th century was Laissez faire which manifested itself in the theories of
individualism, individual enterprise and self help. The philosophy envisages
minimum government control, maximum free enterprise and contractual
freedom. The state was characterized as the law and order state and its role
was conceived to be negative as its internal extended primarily to defending
the country from external aggression, maintaining law and order within the
country dispensing justice to its subjects and collecting a few taxes to finance
these activities. It was era of free enterprise. The management of social and
economic life was not regarded as government responsibility. But laissez faire
doctrine resulted in human misery. It came to be realized that the bargaining
position of every person was not equal and uncontrolled contractual freedom
led to the exploitation of weaker sections by the stronger e.g. of the labour by
the management in industries. On the one hand, slums, unhealthy and
dangerous conditions of work, child labour wide spread poverty and
exploitation of masses, but on the other hand, concentration of wealth in a few
hands, became the order of the day. It came to be recognized that the state
should take active interest in ameliorating the conditions of poor. This
approach gave rise to the favoured state intervention in and social control and
regulation of individual enterprise. The state started to act in the interests of
social justice; it assumed a “positive” role. In course of time, out of dogma of
collectivism emerged the concept of “Social Welfare State” which lays
emphasis on the role of state as a vehicle of socio-economic regeneration and
welfare of the people.

Thus the growth of administrative law is to be attributed to a change of

philosophy as to the role and function of state. The shifting of gears from
laissez faire state to social welfare state has resulted in change of role of
the state. This trend may be illustrated very forcefully by reference to the
position in India. Before 1947, India was a police state. The ruling foreign
power was primarily interested in strengthening its own domination; the
administrative machinery was used mainly with the object in view and the civil
service came to be designated as the “steel frame”. The state did not concern
itself much with the welfare of the people. But all this changed with the advent
of independence with the philosophy in the Indian constitution the preamble to
the constitution enunciates the great objectives and the socio-economic goals
for the achievement of which the Indian constitution has been conceived and
th
drafted in the mid-20 century an era when the concept of social welfare state
was predominant. It is thus pervaded with the modern outlook regarding the
objectives and functions of the state. it embodies a distinct philosophy which
regards the state as on organ to secure good and welfare of the people this
concept of state is further strengthened by the

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Directive Principles of state policy which set out the economic, social and
political goals of Indian constitutional system. These directives confer certain
non-justiceable rights on the people, and place the government under an
obligation to achieve and maximize social welfare and basic social values of
life education, employment, health etc. In consonance with the modern beliefs
of man, the Indian constitution sets up machinery to achieve the goal of
economic democracy along with political democracy, for the latter would be
meaningless without former. Therefore, the attainment of socio-economic
justice being a conscious goal of state policy, there is a vast and inevitable
increase in the frequency with which ordinary citizens come into relationship
of direct encounter with state power-holder. The Administrative law is an
important weapon for bringing about harmony between power and justice. The
basic law of the land i.e. the constitution governs the administrators.

Administrative law essentially deals with location of power and the limitations
thereupon. Since both of these aspects are governed by the constitution, we
shall survey the provisions of the constitution, which act as sources of
limitations upon the power of the state. This brief outline of the Indian
constitution will serve the purpose of providing a proper perspective for the
study of administrative law.

India’s Constitution is a very lengthy, elaborate and detailed document. It

consists of 395 Articles arranged under 22 parts and 9 schedules. It is
probably the longest of the organic law now extant in the world. Several
reasons have contributed to the prolixity of the Indian Constitution.

Firstly, the Constitution deals with the organization and structure not only of
the central Government but also of the states.

Secondly, in a federal constitution, Center-State relationship is a matter of

crucial importance. While other federal constitutions have only skeletal
provisions on this matter the Indian Constitution has detailed norms.

Thirdly, the Constitution has reduced to writing many unwritten conventions

of the British Constitution as for example, the principle of collective
responsibility of the Ministers, parliamentary procedure etc.

Fourthly, there exist various communities and groups in India. To remove

mutual distrust among them, it was felt necessary to include in the
Constitution detailed provisions on Fundamental Rights, safeguards to
minorities, Scheduled tribes scheduled castes and backward classes.

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Fifthly, to promote the social welfare concept on which the state of India is to
be based. The constitution includes Directive Principles of State Policy.

Lastly, the Constitution contains not only the fundamental principles of

governance but also many administrative details, such as the provisions
regarding citizenship, official languages, government services, electoral
machinery etc. In other constitutions, these are usually left to be regulated by
the ordinary law of the land. The framers of the Indian Constitution however
felt that unless these provisions were contained in the Constitution, an infant
democracy might find itself in difficulties, and the smooth and efficient working
of the Constitution and the democratic process in the country might be
jeopardized. The form of administration has a close relation with the form of
the Constitution and the former must be appropriate to the latter. It is quite
possible to pervert the constitutional mechanism, without changing its form, by
merely changing the form of the administration and making it inconsistent
with, and opposed to, the spirit of the constitution. Since India was emerging
as an independent country after a long spell of foreign rule, the country lacked
democratic values. The constitution-makers therefore thought it prudent not to
take unnecessary risks, and to incorporate in the constitution itself the from of
administration as well, instead of leaving it to the legislature, so that the whole
mechanism may become viable.

The preamble to the Constitution declares India to be a Sovereign Democratic

Republic. The term ‘Sovereign’ denotes that India is subject to no external
authority. The term ‘democratic’ signifies that India has a parliamentary from
of government, which means a government responsible to an elected
legislature.

The preamble to the Constitution enunciates the great objectives and the
socio-economic goals for the achievement of which the Indian Constitution
has been established. These are: to secure to all citizens of India social,
economic and political justice; to secure to all Indian citizens liberty of thought,
expression, belief, faith and worship; to secure to them equality of status and
opportunity, and to promote among them fraternity so as to secure the dignity
of the Individual and the unity of the nation. The Indian Constitution has been
conceived and drafted in the mid-twentieth century-an era when the concept
of social welfare state is predominant. It is thus pervaded with the modern
outlook regarding the objectives and functions of the state. It embodies a
distinct philosophy of government, and, explicitly declares that India will be
organized as a social welfare state, i.e., a state that renders social services to
the people and promotes their general welfare. In the formulations and
decelerations of the social objectives contained in the preamble, one can

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clearly discern the impact of the modern political philosophy, which regards
the state as an organ to secure the good and welfare of the people. This
concept of a welfare state is further strengthened by the Directive Principles of
State Policy, which set out the economic, social and political goals of the
Indian constitutional system. These directives confer certain non-justiciable
rights on the people, and place the governments under an obligation to
achieve and maximize social welfare and basic social values like education,
employment, health etc. In consonance with the modern beliefs of man, the
Indian Constitution sets up a machinery to achieve the goal of economic
democracy along with political democracy, for the latter would be meaningless
without the former in a poor country like India.

India is a country of religions. There exist multifarious religious groups in the

country but, in spite of this, the Constitution stands for a secular state of
India.. The essential basis of the Indian Constitution is that all citizens are
equal, and that the religion of a citizen is entirely irrelevant in the matter of his
fundamental rights. The Constitution answers equal freedom for all religions
and provide that the religion of the citizen has nothing to do in socio-economic
matters.

The Indian Constitution has a chapter on Fundamental Rights and thus

guarantees to the people certain basic rights and freedoms, such as, inter
alia, equal protection of laws, freedom of speech and expression freedom of
worship and religion. Freedom of assembly and association, freedom to move
freely and to reside and settle an where in India, freedom to follow any
occupation, trade or business, freedom of person, freedom against double
jeopardy and against export facto laws. Untouchables, the age-old scourge
afflicting the Hindu society, have been formally abolished. The people can
claim their Fundamental Rights against the state subject to some restrictions,
which the state can impose in the interests of social control. These restrictions
on Fundamental Rights are expressly mentioned in the Constitution itself and,
therefore, these rights can be qualified or a bridged only to the extent laid
down. These rights, in substance, constitute inhibitions on the legislative and
executive organs of the state. No law or executive action infringing a
Fundamental Right can be regarded as valid. In this way, the Constitution
demarcates an area of individual freedom and liberty wherein government
cannot interfere. The judiciary ensures an effective and speedy enforcement
of these rights. Since the inauguration of the Constitution, many significant
legal battles have been fought in the area of Fundamental Rights and, thus, a
mass of interesting case law has come into being in this area.

The Indian society lacks homogeneity, as there exist differences of religion,

language, culture, etc. There are sections of people who are comparatively
weaker than others-economically, socially and culturally and their lot can be
ameliorated only when the state makes a special effort to that end. Mutual
suspicion and distrust exist between various religious and linguistic groups.
To promote a sense of security among the minorities, to ameliorate the
conditions of the depressed and backward classes, to make them useful
members of society, to weld the diverse elements into one national and

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political stream, the Constitution contains a liberal scheme of safeguards to
minorities, backward classes and scheduled castes. Provisions have thus
been made, inter alia, to reserve seats in the State Legislatures and Lok
Sabha and to make reservations services, for some of these groups, to
promote the welfare of the depressed and backward classes and to protect
the languages and culture of the minorities.

India has adopted adult suffrage as a basis of elections to the Lok Sabha and
the State Legislative Assemblies. Every citizen, male or female, who has
reached the age of 18 years or over, has a right to vote without any
discrimination. It was indeed a very bold step on the part of the constitution-
makers to adopt adult suffrage in a country of teeming millions of illiterate
people, but they did so for some very sound reasons. If democracy is to be
broad-based and the system of government is to have the ultimate sanction of
the people as a whole, in a country like India where large masses of people
are poor an illiterate, the introduction of any property or educational
qualification for exercising the franchise would have amounted to a negation
of democratic principles. Any such qualification would have disenfranchised a
large number of depressed people. Further, it cannot be assumed that a
person with a bare elementary education is in a better position to exercise the
franchise are and choose his representatives accordingly.

A notable feature of the Constitution is that it accords a dignified and crucial

position to the judiciary. Well-ordered and well-regulated judicial machinery
had been introduced in the country with the Supreme Court at the apex. The
jurisdiction of the Supreme Court is very broadly worded. It is a general court
of appeal from the High Court, is the ultimate arbiter in all-constitutional
matters and enjoys an advisory jurisdiction. It can hear appears from any
court or tribunal in the country and can issue writ for enforcing the
Fundamental Rights. There is thus a good deal of truth in the assertion that
the highest court in any other federation. There is a High Court in each State.
The High Courts have wide jurisdiction and have been constituted into
important instruments of justice. The most signification aspect of their
jurisdiction is the power to issue writs.

The judiciary in India has been assigned role to play. It has to dispense justice
not only between one person and another, but also between the state and the
citizens. It interprets the constitution and acts as its protector and guardian by
keeping all authorities legislative, executive, administrative, judicial and quasi-
judicial-within bounds. The judiciary is entitled to scrutinize any governmental
action in order to assess whether or to it conforms to the constitution and the
valid laws made there under. The judiciary has powers to protect people’s
Fundamental Rights from any unreasonable encroachment by any organ of
the state. The judiciary supervises the administrative process in the country,
and acts as the balance wheel of federalism by settling disputes between the
center and the states or among the state inter se.

India’s Constitution is of the federal type. It established a dual polity, a two tier

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governmental system with the Central Government at one level and the state
Governments at the other. The Constitution marks off the sphere of action of
each level of government by devising an elaborate scheme of distribution of
legislative, administrative, and financial powers between the Centre and the
States. A government is entitled to act within its assigned field and cannot go
out of it, or encroach on the field assigned to the other government.

Thus the Constitution of India is having significant effect on laws including

administrative law. It is under this fundamental laws are made and executed,
all governmental authorities and the validity of their functioning adjudged. No
legislature can make a law and no governmental agency can act, contrary to
the constitution no act, executive, legislative, judicial or quasi-judicial, of any
administrative agency can stand if contrary to the constitution. The
constitution thus conditions the whole government process in the country.
The judiciary is obligated to see any governmental organ does not violate the
provisions of the constitution. This function of the judiciary entitles it to be
called as guardian of the constitution.

Today in India, the Administrative process has grown so much that it will not
be out of place to say that today we are not governed but administered. It
may be pointed out that the constitutional law deals with fundamentals while
administrative with details. The learned author, Sh. I.P. Messey, has rightly
pointed out, whatever may be the arguments and counter arguments, the fact
remains that the administrative law is recognized as separate, independent
branch of legal discipline,. Though at times the disciplines of constitutional
law and administrative law may over lap. Further clarifying the point he said
the correct position seems to be that if one draws two circles of administrative
law and constitutional law at a certain place they may over lap and this area
may termed as watershed in administrative law.

Need for the Administrative Law:

Its Importance And Functions

The emergence of the social welfare has affected the democracies very
profoundly. It has led to state activism. There has occurred a phenomenal
increase in the area of sate operation; it has taken over a number of
functions, which were previously left to private enterprise. The state today

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pervades every aspect of human life. The functions of a modern state may
broadly be placed into five categories, viz, the state as:-

 protector,

 provider,

 entrepreneur,

 economic controller and

 arbiter.

Administration is the all-pervading feature of life today.

The province of administration is wide and embrace following things within its
ambit:-

 It makes policies,

 It provides leadership to the legislature,

 It executes and administers the law and

 It takes manifold decisions.

 It exercises today not only the traditional functions of
administration, but other varied types of functions as well.
 It exercises legislative power and issues a plethora of rules,
bye- laws and orders of a general nature.

The advantage of the administrative process is that it could evolve new

techniques, processes and instrumentalities, acquire expertise and
specialization, to meet and handle new complex problems of modern society.
Administration has become a highly complicated job needing a good deal of
technical knowledge, expertise and know-how. Continuous experimentation
and adjustment of detail has become an essential requisite of modern
administration. If a certain rule is found to be unsuitable in practice, a new
rule incorporating the lessons learned from experience has to be supplied.
The Administration can change an unsuitable rule without much delay. Even if
it is dealing with a problem case by case (as does a court), it could change its
approach according to the exigency of the situation and the demands of
justice. Such a flexibility of approach is not possible in the case of the
legislative or the judicial process. Administration has assumed such an
extensive, sprawling and varied character, that it is not now easy to define the
term “ administration” or to evolve a general norm to identify an administrative
body. It does not suffice to say that an administrative body is one, which
administers, for the administration does not only put the law into effect, but
does much more; it legislates and adjudicates. At times, administration is
explained in a negative manner by saying that what does not fall within the
purview of the legislature or the judiciary is administration.

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In such a context, a study of administrative law becomes of great significance.
The increase in administrative functions has created a vast new complex of
relations between the administration and the citizen. The modern
administration impinges more and more on the individual; it has assumed a
tremendous capacity to affect the rights and liberties of the people. There is
not a moment of a person’s existence when he is not in contact with the
administration in one-way or the other. This circumstance has posed certain
basic and critical questions for us to consider:

 Does arming the administration with more and more powers

keep in view the interests of the individual?
 Are adequate precautions being taken to ensure that the
administrative agencies follow in discharging their functions
such procedures as are reasonable, consistent with the rule of
 law, democratic values and natural justice?
 Has adequate control mechanism been developed so as to
ensure that the administrative powers are kept within the
bounds of law, and that it would not act as a power drunk
creature, but would act only after informing its own mind,
weighing carefully the various issues involved and balancing the
individual’s interest against the needs of social control?

It has increasingly become important to control the administration, consistent

with the efficiency, in such a way that it does not interfere with impunity with
the rights of the individual. Between individual liberty and government, there
is an age-old conflict the need for constantly adjusting the relationship
between the government and the governed so that a proper balance may be
evolved between private interest and public interest. it is the demand of
prudence that when sweeping powers are conferred on administrative organs,
effective control- mechanism be also evolved so as ensure that the officers do
not use their powers in an undue manner or for an unwarranted purpose. It is
the task of administrative law to ensure that the governmental functions are
exercised according to law, on proper legal principles and according to rules
of reason and justice fairness to the individual concerned is also a value to be
achieved along with efficient administration

The goal of administrative law is to redress this inequality to ensure

that, so far as possible, the individual and the state are placed on a
plane of equality before the bar of justice. In reality there is no
antithesis between a strong government and controlling the exercise
of administrative powers. Administrative powers are exercised by
thousands of officials and affect millions of people Administrative
efficiency cannot be the end-all of administrative powers. There is
also the questions of protecting individual’s rights against bad
administration will lead to good administration.

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 A democracy will be no better than a mere façade if the rights of the people
are infringed with impunity without proper redressed mechanism. This
makes the study of administrative law important in every country. For India,
however, it is of special significance because of the proclaimed objectives of
the Indian polity to build up a socialistic pattern of society. This has
generated administrative process, and hence administrative law, on a large
scale. Administration in India is bound to multiply further and at a quick
pace. If exercised properly, the vast powers of the administration may lead
to the welfare state; but, if abused, they may lead to administrative
despotism and a totalitarian state A careful and systematic study and
development of administrative law becomes a desideratum as administrative
law is an instrument of control of the exercise of administrative powers.

Nature and Definition of administrative Law

Administrative Law is, in fact, the body of those which rules regulate and
control the administration. Administrative Law is that branch of law that is
concerned with the composition of power, duties, rights and liabilities of the
various organs of the Government that are engaged in public administration.
Under it, we study all those rules laws and procedures that are helpful in
properly regulating and controlling the administrative machinery.

There is a great divergence of opinion regarding the definition/conception of

administrative law. The reason being that there has been tremendous
increase in administrative process and it is impossible to attempt any precise
definition of administrative law, which can cover the entire range of
administrative process.

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Let us consider some of the definitions as given by the learned jurists.

Austin has defined administrative Law. As the law, which determines the
ends and modes to which the sovereign power shall be exercised. In his view,
the sovereign power shall be exercised either directly by the monarch or
directly by the subordinate political superiors to whom portions of those are
delegated or committed in trust.

Holland regards Administrative Law “one of six” divisions of public law. In his
famous book “Introduction to American Administrative Law 1958”,

Bernard Schawartz has defined Administrative Law as “the law applicable to

those administrative agencies which possess of delegated legislation and ad
judicatory authority.”

Jennings has defined Administrative Law as “the law relating to the

administration. It determines the organization, powers and duties of
administrative authorities.”
th
Dicey in 19 century defines it as.

Firstly, portion of a nation’s legal system which determines the legal statues
and liabilities of all State officials.
Secondly, defines the right and liabilities of private individuals in their
dealings with public officials.
Thirdly, specifies the procedure by which those rights and liabilities are
enforced.

This definition suffers from certain imperfections. It does not cover several
aspects of administrative law, e.g. it excludes the study of several
administrative authorities such as public corporations which are not included
within the expression “State officials,” it excludes the study of various powers
and functions of administrative authorities and their control. His definition is
mainly concerned with one aspect of administrative. Law, namely, judicial
control of public officials.

A famous jurist Hobbes has written that there was a time when the society
was in such a position that man did not feel secured in it. The main reason for
this was that there were no such things as administrative powers. Each
person had to live in society on the basis of his own might accordingly to
Hobbes, “ In such condition, there was no place for industry, arts, letters and
society. Worst of all was the continual fear of danger, violent death and life of
man solitary poor, nasty and brutish and short.

The jurists are also of the view that might or force as a means for the
enforcement of any decision by man could continue only for some time. To
put it is other words, the situation of “might is right” was only temporary. It

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may be said to be a phase of development. This can be possible only through
the medium of law. Hence, law was made and in order to interpret it and in
order to determine the rights and duties on the basis of such interpretation,
this work was entrusted to a special organ that we now call judiciary. The
organ, which was given the function of enforcing the decision of judicial
organ, is called executive. It has comparatively a very little concern with the
composition of the executive organ.

K.C. Davis has defined administrative law in the following words:

“ Administrative Law is the law concerning the powers and procedures of
administrative agencies including specially the law governing judicial review
of administrative action.”
In the view of Friedman, Administrative Law includes the following.
 The legislative powers of the administration both at common
law and under a vast mass of statutes.
 The administrative powers of the administration.

 Judicial and quasi-judicial powers of the administration, all of
them statutory.
 The legal liability of public authorities.

 The powers of the ordinary courts to supervise the
administrative authorities.

The Indian Institution of Law has defined Administrative Law in the

following words;
“ Administrative Law deals with the structure, powers and functions of organs
of administration, the method and procedures followed by them in exercising
their powers and functions, the method by which they are controlled and the
remedies which are available to a person against them when his rights are
infringed by their operation.”

A careful perusal of the above makes it clear that Administrative Law

deals with the following problems:

A. Who are administrative authorities?

B. What is the nature and powers exercised by administrative
authorities?
C. What are the limitations, if any, imposed on these powers?
D. How the administration is kept restricted to its laminose?
E. What is the procedure followed by the administrative
authorities?

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 F. What remedies are available to persons adversely affected
by administration?

Thus the concept of administrative law has assumed great importance and
remarkable advances in recent times. There are several principles of
administrative law, which have been evolved by the courts for the purpose of
controlling the exercise of power. So that it does not lead to arbitrariness or
despotic use of power by the instrumentalities or agencies of the state. During
recent past judicial activism has become very aggressive. It was born out of
desire on the part of judiciary to usher in rule of law society by enforcing the
norms of good governance and thereby produced a rich wealth of legal norms
and added a new dimension to the discipline administrative law.

In view of above discussion we can derive at the following conclusions so far

as nature and scope of administrative law is concerned: -

The administrative law has growing importance and interest and

the administrative law is the most outstanding phenomena in the
welfare state of today. Knowledge of administrative law is as
important for the officials responsible for carrying on
administration as for the students of law.

Administrative law is not codified like the Indian Penal code or the
law of Contracts. It is based on the constitution. No doubt the
Court of Law oversees and ensure that the law of the land is
enforced. However, the “very factor of a rapid development and
complexity which gave rise to regulation made specific and
complete treatment by legislation impossible and, instead, made
necessary the choice of the body of officers who could keep abreast
of the novelties and intricacies which the problems presented.”

Administrative law is essentially Judge made law. It is a branch of

public law as compared to private law-relations inter-se.
Administrative law is an ever-expanding subject in developing
society and is bound to grow in size as well as quality in coming the
decades. We need an efficient regulatory system, which ensures
adequate protection of the people’s Rights.

Principles of administrative law emerge and development

whenever any person becomes victim of arbitrary exercise of

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 public power. Therefore administrative law deals with relationship
individual with power.

The administrative agencies derive their authority from

constitutional law and statutory law. The laws made by such
agencies in exercise of the powers conferred on them also regulate
their action. The principle features are: (a) transfer of power by
legislature to administrative authorities, (b) exercise of power by
such agencies, and (c) judicial review of administrative decisions.

Administrative law relates to individual rights as well as public

needs and ensures transparent, open and honest governance,
which is more people-friendly.

Inadequacy of the traditional Court to respond to new challenges

has led to the growth of administrative adjudicatory process. The
traditional administration of justice is technical, expensive and
dilatory and is not keeping pace with the dynamics of ever-
increasing subject matter. Because of limitation of time, the
technical nature of legislation, the need for flexibility,
experimentations and quick action resulted in the inevitable
growth of administrative legislative process.

Administrative law deals with the organization and powers of

administrative and powers quasi-administrative agencies

Administrative law primarily concerns with official action and the

procedure by which the official action is reached.

Administrative law includes the control mechanism (judicial

review) by which administrative authorities are kept within
bounds and made effective.

Sources of Administrative Law

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There are four principal sources of administrative law in India:-

 Constitution of India

 Acts and Statutes

  Ordinances, Administrative directions, notifications and Circulars
 Judicial decisions

Future Role of Administrative Law

The administrative law has come to stay because it provides an instrument of

control of the exercise of administrative powers. The administrative law has to
seek balance between the individual right and public needs. As we know in
the society there exists conflict between power and justice wherever there is
power, there exist probabilities of excesses in exercise of the power. One way
is to do nothing about this and let the celebrated Kautilyan Matsanayaya (big
fish eating little fish) prevail. The other way is to try and combat this.
Administrative law identifies the excesses of power and endeavors to combat
there. The learned Author, Upender Baxi, while commenting on the
administrative law has rightly observed in. (The Myth and reality of the Indian
administrative law, Introduction by Upendra Baxi in administrative law ed. by I.P. Massey
2001 at XVIII)

“to understand the stuff of which administrative law is made one has to
understand relevant domains of substantive law to which courts apply the
more general principles of legality and fairness. In this way a thorough study
of administrative law is in effect, a study of the Indian legal system a whole.
More importantly, it is study of the pathology of power in a developing
society.”

Growth in science and technology and modernization has resulted in great

structural changes accompanied with increase in the aspirations of people as
to quality of life. We know socio-eco-politico and multi dimensional problems
which people face due to technological development cannot solved except by
the growth of administration and the law regulating administration. No doubt
the principles evolved by the court for the purpose of controlling the misuse of
governmental of power is satisfactory. Yet it is said that the administrative law
in India is an instrument in the hands of middle class Indians to combat
administrative authoritarianism through the instrumentality of the court and
there is need to make administrative law a shield for the majority of Indians
living in rural area and people under poverty line. Therefore easy access to
justice is considered important form of accountability this may include
informal procedure, speedy and less expensive trial, legal aid, public interest
litigation, easy bail etc.

Module – 1 18
Further, the multifarious activities of the state extended to every social
problems of man such as health education employment, old age pension
production, control and distribution of commodities and other operations
public utilities. This enjoins a new role for administration and also for the
development of administrative law.

Separation of Powers

The doctrine of Separation of Powers is of ancient origin. The origin of the

th th
doctrine is traceable to Aristotle. In the 16 and 17 Centuries, French
philosopher John Boding and British Politician Locke respectively had
expounded the doctrine of separation of powers. But it was Montesquieu,
French jurist, who for the first time gave it a systematic and scientific
formulation in his book ‘Esprit des Lois’ (The spirit of the laws).

Montesquieu’s view: Montesquieu said that if the Executive and the

Legislature are the same person or body of persons, there would be a danger
of the Legislature enacting oppressive laws which the executive will
administer to attain its own ends, for laws to be enforced by the same body
that enacts them result in arbitrary rule and makes the judge a legislator rather
than an interpreter of law. If one person or body of persons could exercise
both the executive and judicial powers in the same matter, there would be
arbitrary powers, which would amount to complete tyranny, if the legislative
power would be added to the power of that person. The value of the doctrine
lies in the fact that it seeks to preserve human liberty by avoiding the
concentration of powers in one person or body of persons. The different
organs of government should thus be prevented from encroaching on the
province of the other organ.

This theory has had different application in France, USA and England. In
France, it resulted in the rejection of the power of the courts to review acts of
the legislature or the executive. The existence of separate administrative

Module – 1 19
courts to adjudicate disputes between the citizen and the administration owes
its origin to the theory of separating of powers. The principle was categorically
adopted in the making of the Constitution of the United States of America.
There, the executive power is vested in the president. Article the legislative
power in congress and the judicial power in the Supreme Court and the courts
subordinates thereto. The President is not a member of the Congress. He
appoints his secretaries on the basis not of their party loyalty but loyalty to
himself. His tenure does not depend upon the confidence of the Congress in
him. He cannot be removed except by impeachment, However, the United
States constitution makes departure from the theory of strict separation of
powers in this that there is provision for judicial review and the supremacy of
the ordinary courts over the administrative courts or tribunals.

In the British Constitution the Parliament is the Supreme legislative

authority. At the same time, it has full control over the Executive. The
harmony between the Legislator and the (Executive) is secured through the
Cabinet. The Cabinet is collectively responsible to the Parliament. The Prime
Minister is the head of the party in majority and is the Chief Executive
authority. He forms the Cabinet. The Legislature and the Executive are not
quite separate and independent in England, so far as the Judiciary is
concerned its independence has been secured by the Act for Settlement of
1701 which provides that the judges hold their office during good behaviour,
and are liable to be removed on a presentation of addresses by both the
Houses of Parliament. They enjoy complete immunity in regard to judicial
acts.

In India, the executive is part of the legislature. The President is the head of
the executive and acts on the advice of the Council of Ministers. Article 53 and
74 (1) He can be impeached by Parliament. Article 56 (1) (b) read with Art
61, Constitution. The Council of Ministers is collectively responsible to the Lok
Sabha Article 75 (3) and each minister works during the pleasure of the
President. Article 75 (2) If the Council of Ministers lose the confidence of the
House, it has to resign. Functionally, the President’s or the Governor’s assent
is required for all legislations. (Articles 111, 200 and Art 368). The President
or the Governor has power of making ordinances when both Houses of the
legislature are not in session. (Articles 123 and 212). This is legislative power,
and an ordinance has the same status as that of a law of the legislature. ( AK
Roy v Union of India AIR 1982 SC 710) The President or the Governor has the power
to grant pardon (Articles 72 and 161) The legislature performs judicial function
while committing for contempt those who defy its orders or commit breach of
privilege (Articles 105 (3) 194 (3) Thus, the executive is dependent on the
Legislature and while it performs some legislative functions such as
subordinate it, also performs some executive functions such as those required
for maintaining order in the house.

There is, however, considerable institutional separation between the judiciary

and the other organs of the government. (See Art 50)

Module – 1 20
The Judges of the Supreme Court are appointed by the President in
consultation with the Chief justice of India and such of the judges of the
supreme Court and the High Courts as he may deem necessary for the
purpose. (Article 124 (2))
The Judges of the High Court are appointed by the President after
consultation with the Chief Justice of India, the Governor of the state, and, in
the case of appointment of a judge other than the Chief justice, the Chief
Justice of the High Court( Article 217 (1).)

It has now been held that in making such appointments, the opinion of the
Chief justice of India shall have primacy. (Supreme Court Advocates on
Record Association.) The judges of the high Court and the judges of the
Supreme Court cannot be removed except for misconduct or incapacity and
unless an address supported by two thirds of the members and absolute
majority of the total membership of the House is passed in each House of
Parliament and presented to the President Article 124 (3) An impeachment
motion was brought against a judge of the Supreme court, Justice
Ramaswami, but it failed to receive the support of the prescribed number of
members of Parliament. The salaries payable to the judges are provided in
the Constitution or can be laid down by a law made by Parliament. Article 125
(1) and Art 221 (1).

Every judge shall be entitled to such privileges and allowances and to such
rights in respect of absence and pension, as may from time to time be
determined by or under any law made by Parliament and until so determined,
to such privileges, allowance and rights as are specified in the Second
Schedule. Neither the privileges nor the allowance nor his rights in respect of
leave of absence or pension shall be varied to his disadvantage after his
appointment.

Appointments of persons to be, and the posting and promotion of, district
judges in any state shall be made by the Governor of the State in consultation
with the High Court exercising jurisdiction in relation to such state (Article 233)
The control over the subordinate courts is vested in the acts of the Legislature
as well as the executive. The Supreme Court has power to make rules (Article
145) and exercises administrative control over its staff.
The judiciary has power to enforce and interpret laws and if they are found in
violation of any provision of the Constitution, it can declare them un-
constitutional and therefore, void. It can declare the executive action void if it
is found against any provisions of the Constitution. Article 50 provides that the
State shall take steps to separate the judiciary from the executive.

Thus, the three organs of the Government (i.e. the Executive, the Legislature
and the Judiciary) are not separate. Actually the complete demarcation of the
functions of these organs of the Government is not possible.

Module – 1 21
The Constitution of India does not recognize the doctrine of separation of
power in its absolute rigidity, but the functions of the three organs of the
government have been sufficiently differentiated.( Ram Jawaya v. State of Punjab,
AIR 1955 SC 549) None of the three of organs of the Government can take over
the functions assigned to the other organs.( Keshanand Bharti v. State of Kerala, AIR
1973 SC 1461, Asif Hameed v. State of J&K 1989 AIR, SC 1899)

In State of Bihar v. Bihar Distillery Ltd., (AIR 1997 SC 1511) the Supreme Court
has held that the judiciary must recognize the fundamental nature and
importance of the legislature process and must accord due regard and
deference to it. The Legislative and Executive are also expected to show due
regard and deference to the judiciary. The Constitution of India recognizes
and gives effect to the concept of equality between the three organs of the
Government. The concept of checks and balance is inherent in the scheme.

RULE OF LAW

The Expression “Rule of Law” plays an important role in the administrative

law. It provides protection to the people against the arbitrary action of the
administrative authorities. The expression ‘rule of law’ has been derived from the
French phrase ‘la Principle de legality’. i.e. a government based on the principles
of law. In simple words, the term ‘rule of law, indicates the state of affairs in a
country where, in main, the law rules. Law may be taken to mean mainly a
rule or principle which governs the external actions of the human beings and
which is recognized and applied by the State in the administration of justice.

Rule of Law is a dynamic concept.

It does not admit of being readily expressed. Hence, it is difficult to define it.
Simply speaking, it means supremacy of law or predominance of law and
essentially, it consists of values.

The concept of the rule of Law is of old origin. Edward Coke is said to be the
originator of this concept, when he said that the King must be under God and
Law and thus vindicated the supremacy of law over the pretensions of the
executives. Prof. A.V. Dicey later developed on this concept in the course of
his lectures at the Oxford University. Dicey was an individualist; he wrote
about the concept of the Rule of law 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

Module – 1 22
government officials. According to him, wherever there is discretion there is
room for arbitrariness. Further he attributed three meanings to Rule of Law.

(1) The First meaning of the Rule of Law is that ‘no man is punishable or can
lawfully be made to suffer in body or goods except for a distinct breach of law
established in the ordinary legal manner before the ordinary courts of the
land.

(2) The Second Meaning of the Rule of Law is that no man is above law.
Every man whatever be his rank or condition. is subject to the ordinary law of
the realm and amenable to the jurisdiction of the ordinary tribunals .

(3) The Third meaning of the rule of law is that the general principle of the
constitution are the result of judicial decisions determining the rights of private
persons in particular cases brought before the court.
The view of Dicey as to the meaning of the Rule of Law has been subject of
much criticism. The whole criticism may be summed up as follows.

Dicey has opposed the system of providing the discretionary power to the
administration. In his opinion providing the discretionary power means
creating the room for arbitrariness, which may create as serious threat to
individual freedom. Now a days it has been clear that providing the discretion
to the administration is inevitable. The opinion of the Dicey, thus, appears to
be outdated as it restricts the Government action and fails to take note of the
changed conception of the Government of the State.

Dicey has failed to distinguish discretionary powers from the arbitrary powers.
Arbitrary power may be taken as against the concept of Rule of Law . In
modern times in all the countries including England, America and India, the
discretionary powers are conferred on the Government. The present trend is
that discretionary power is given to the Government or administrative
authorities, but the statute which provides it to the Government or the
administrative officers lays down some guidelines or principles according to
which the discretionary power is to be exercised. The administrative law is
much concerned with the control of the discretionary power of the
administration. It is engaged in finding out the new ways and means of the
control of the administrative discretion.

According to Dicey the rule of law requires that every person should be
subject to the ordinary courts of the country. Dicey has claimed that there is
no separate law and separate court for the trial of the Government servants in
England. He critcised the system of droit administratif prevailing in France. In
France there are two types of courts Administrative Court and Ordinary Civil
Courts. The disputes between the citizens and the Administration are decided
by the Administrative courts while the other cases, (i.e. the disputes between
the citizens) are decided by the Civil Court. Dicey was very critical to the
separation for deciding the disputes between the administration and the
citizens

Module – 1 23
According to Dicey the Rule of Law requires equal subjection of all persons to
the ordinary law of the country and absence of special privileges for person
including the administrative authority. This proportion of Dicey does not
appear to be correct even in England. Several persons enjoy some privileges
and immunities. For example, Judges enjoy immunities from suit in respect of
their acts done in discharge of their official function. Besides, Public
Authorities Protection Act, 1893, has provided special protection to the official.
Foreign diplomats enjoy immunity before the Court. Further, the rules of
‘public interest privilege may afford officials some protection against orders for
discovery of documents in litigation.’ Thus, the meaning of rule of law taken by
Dicey cannot be taken to be completely satisfactory.

Third meaning given to the rule of law by Dicey that the constitution is the
result of judicial decisions determining the rights of private persons in
particular cases brought before the Courts is based on the peculiar character
of the Constitution of Great Britain.

In spite of the above shortcomings in the definition of rule of law by Dicey, he

must be praised for drawing the attention of the scholars and authorities
towards the need of controlling the discretionary powers of the administration.
He developed a philosophy to control the Government and Officers and to
keep them within their powers. The rule of law established by him requires
that every action of the administration must be backed by law or must have
been done in accordance with law. The role of Dicey in the development and
establishment of the concept of fair justice cannot be denied.

The concept of rule of law, in modern age, does not oppose the practice of
conferring discretionary powers upon the government but on the other hand
emphasizing on spelling out the manner of their exercise. It also ensures that
every man is bound by the ordinary laws of the land whether he be private
citizens or a public officer; that private rights are safeguarded by the ordinary
laws of the land (See Journal of the Indian law Institute, 1958-59, pp. 31-32)

Thus the rule of law signifies that nobody is deprived of his rights and liberties
by an administrative action; that the administrative authorities perform their
functions according to law and not arbitrarily; that the law of the land are not
unconstitutional and oppressive; that the supremacy of courts is upheld and
judicial control of administrative action is fully secured.

Basic Principles of the Rule of Law

 Law is Supreme, above everything and every one. No body is the
above law.
 All things should be done according to law and not according to whim

 No person should be made to suffer except for a distinct breach of law.


 Absence of arbitrary power being hot and sole of rule of law
 Equality before law and equal protection of law

Module – 1 24
 Discretionary should be exercised within reasonable limits set by law

 Adequate safeguard against executive abuse of powers

 Independent and impartial Judiciary

 Fair and Justice procedure

 Speedy Trial

Rule of Law and Indian Constitution

In India the Constitution is supreme. The preamble of our Constitution clearly

sets out the principle of rule of law.
It is sometimes said that planning and welfare schemes essentially strike at
rule of law because they affect the individual freedoms and liberty in may
ways. But rule of law plays an effective role by emphasizing upon fair play and
greater accountability of the administration. It lays greater emphasis upon the
principles of natural justice and the rule of speaking order in administrative
process in order to eliminate administrative arbitrariness.

Rule of Law and Case law

In an early case S.G. Jaisinghani V. Union of India and others, (AIR 1967 SC
1427) the Supreme Court portrayed the essentials of rule of law in a very lucid
manner. It observed: “ The absence of arbitrary power is the first essential of
the rule of law upon which our whole constitutional system is based. In a
system governed by rule of law, discretion when conferred upon executive
authorities must be continued within clearly defined limits. The rule of law from
this points of view means that decisions should be made by the application of
known principles and rules and, in general such decision should be
predictable and the citizen should know where he is. If a decision is taken
without any principle or without any rule it is unpredictable and such a
decision is antithesis of a decision taken in accordance with the rule of law”.

The Supreme Court in a case, namely, Supreme Court Advocates on

Record Association V. Union of India, (AIR 1994 SC 268 at p.298) reiterated that
absence of arbitrariness is one of the essentials of rule of law. The Court
observed. “For the rule of law to be realistic there has to be rooms for
discretionary authority within the operation of rule of law even though it has to
be reduced to the minimum extent necessary for proper, governance, and
within the area of discretionary authority, the existence of proper guidelines or
norms of general application excludes any arbitrary exercise of discretionary
authority. In such a situation, the exercise of discretionary authority in its
application to individuals, according to proper guidelines and norms, further
reduces the area of discretion, but to that extent discretionary authority has to
be given to make the system workable.

The recent expansion of rule of law in every field of administrative functioning

has assigned it is a place of special significance in the Indian administrative

Module – 1 25
law. The Supreme Court, in the process of interpretation of rule of law vis-à-
vis operation of administrative power, in several cases, emphasized upon the
need of fair and just procedure, adequate safeguards against any executive
encroachment on personal liberty, free legal aid to the poor and speedy trail in
criminal cases as necessary adjuncts to rule of law. Giving his dissenting
opinion in the Death penalty case, Mr. Justice Bhagwati explains fully the
significance of rule of law in the following words:

The rule of law permeates the entire fabric of the Constitution and indeed
forms one of its basic features. The rule of law excludes arbitrariness, its
postulate is ‘intelligence without passion’ and reason free from desire.
Wherever we find arbitrariness or unreasonableness there is denial of the rule
of law. Law in the context of rule of law does not mean any law enacted by
legislative authority, howsoever arbitrary, despotic it may be, otherwise even
in dictatorship it would be possible to say that there is rule of law because
every law made by the dictator, however arbitrary and unreasonable, has to
be obeyed and every action has to be taken in conformity with such law. In
such a case too even where the political set-up is dictatorial it is the law that
governs the relationship between men

The modern concept of the Rule of Law is fairly wide and, therefore, sets
up an idea for government to achieve. This concept was developed by the
International Commission of Jurists, known as Delhi Declaration, 1959, which
was later on confirmed at Lagos in 1961. According to this formulation, the
Rule of Law implies 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.

During the last few years the Supreme Court in India has developed some fine
principles of Third World jurisprudence. Developing the same new
constitutionalism further, the Apex Court in Veena Seth v. State (AIR 1983 SC
339) of Bihar extended the reach of the Rule of Law to the poor and the
downtrodden, the ignorant and the illiterate, who constitute the bulk of
humanity in India, when it ruled that the Rule of Law does not exist merely for
those who have the means to fight for their rights and very often do so for the
perpetuation of the status quo, which protects and preserves their dominance
and permits them to exploit a large section of the community. The opportunity
for this ruling was provided by a letter written by the Free Legal Aid
Committee, Hazaribagh, Bihar drawing its attention to unjustified and illegal
detention of certain prisoners in jail for almost two or three decades.

Recent aggressive judicial activism can only be seen as a part of the efforts of
the Constitutional Courts in India to establish rule-of-law society, which
implies that no matter how high a person, may be the law is always above
him. Court is also trying to identify the concept of rule of law with human rights
of the people. The Court is developing techniques by which it can force the
government not only to submit to the law but also to create conditions where
people can develop capacities to exercise their rights properly and
meaningfully. The public administration is responsible for effective
implementation of rule of law and constitutional commands, which effectuate

Module – 1 26
fairly the objective standards laid down by law. Every public servant is a
trustee of the society and is accountable for due effectuation of constitutional
goals. This makes the concept of rule of law highly relevant to our context.

Droit Administratif

Meaning of Droit administratif French administrative law is known as Droit

Administratif which means a body of rules which determine the organization,
powers and duties of public administration and regulate the relation of the
administration with the citizen of the country. Droit Administrative does not
represent the rules and principles enacted by Parliament. It contains the rules
developed by administrative courts.

Napoleon Bonaparte was the founder of the Droit administrative. It was he

who established the Conseil d’Etat. He passed an ordinance depriving the law
courts of their jurisdiction on administrative matters and another ordinance
that such matters could be determined only by the Conseil d’Etat.

Waline, the French jurist, propounds three basic principles of Droit

administrative:

1. the power of administration to act suo motu and impose directly

on the subject the duty to obey its decision;
2. the power of the administration to take decisions and to execute
them suo motu may be exercised only within the ambit of law
which protects individual liberties against administrative
arbitrariness;
3. the existence of a specialized administrative jurisdiction.

One good result of this is that an independent body reviews every

administrative action. The Conseil d’Etat is composed of eminent civil
servants, deals with a variety of matters like claim of damages for wrongful
acts of Government servants, income-tax, pensions, disputed elections,
personal claims of civil servants against the State for wrongful dismissal or
suspension and so on. It has interfered with administrative orders on the
ground of error of law, lack of jurisdiction, irregularity of procedure and
detournement depouvior (misapplication of power). It has exercised its
jurisdiction liberally.

Main characteristic features of droit administratif. The following

characteristic features are of the Droit Administratif in France:-

Module – 1 27
 1. Those matters concerning the State and administrative litigation
falls within the jurisdiction of administrative courts and cannot be
decided by the land of the ordinary courts.
2. Those deciding matters concerning the State and administrative
litigation, rules as developed by the administrative courts are
applied.
3. If there is any conflict of jurisdiction between ordinary courts and
administrative court, it is decided by the tribunal des conflicts.
4. Conseil d’Etat is the highest administrative court.

Prof. Brown and Prof. J.P. Garner have attributed to a combination of

following factors as responsible for its success

i) The composition and functions of the Conseil d’Etat itself;

ii) The flexibility of its case-law;
iii) The simplicity of the remedies available before the
administrative courts;
iv) The special procedure evolved by those courts; and
v) The character of the substantive law, which they apply.

Despite the obvious merits of the French administrative law system, Prof.
Dicey was of the opinion that there was no rule of law in France nor was the
system so satisfactory as it was in England. He believed that the review of
administrative action is better administered in England than in France.

The system of Droit Administratif according to Dicey, is based on the following

two ordinary principles which are alien to English law—

Firstly, that the government and every servant of the government possess, as
representative of the nation, a whole body of special rights, privileges or
prerogatives as against private citizens, and the extent of rights, privileges or
considerations which fix the legal rights and duties of one citizen towards
another. An individual in his dealings with the State does not, according to
French law; stand on the same footing as that on which he stands in dealing
with his neighbor.
Secondly, that the government and its officials should be independent of and
free from the jurisdiction of ordinary courts.

It was on the basis of these two principles that Dicey observed that Droit
Administratif is opposed to rule of law and, therefore, administrative law is
alien to English system. But this conclusion of Dicey was misconceived. Droit
Administratif, that is, administrative law was as much there in England as it
was in France but with a difference that the French Droit Administratif was
based on a system, which was unknown to English law. In his later days after
examining the things closely, Dicey seems to have perceptibly modified his
stand.

Module – 1 28
Despite its overall superiority, the French administrative law cannot be
characterized with perfection. Its glories have been marked by the persistent
slowness in the judicial reviews at the administrative courts and by the
difficulties of ensuring the execution of its last judgment. Moreover, judicial
control is the only one method of controlling administrative action in French
administrative law, whereas, in England, a vigilant public opinion, a watchful
Parliament, a self -disciplined civil service and the jurisdiction of administrative
process serve as the additional modes of control over administrative action.
By contrast, it has to be conceded that the French system still excels its
counterpart in the common law countries of the world.

CLASSIFICATION OF ADMINISTRATIVE ACTION

Administrative action is a comprehensive term and defies exact definition. In

modern times the administrative process is a by-product of intensive form of
government and cuts across the traditional classification of governmental
powers and combines into one all the powers, which were traditionally
exercised by three different organs of the State. Therefore, there is general
agreement among the writers on administrative law that any attempt of
classifying administrative functions or any conceptual basis is not only
impossible but also futile. Even then a student of administrative law is
compelled to delve into field of classification because the present-day law
especially relating to judicial review freely employs conceptual classification of
administrative action. Thus, speaking generally, an administrative action can
be classified into four categories:

i) Rule-making action or quasi-legislative action.

ii) Rule-decision action or quasi-judicial action.
iii) Rule-application action or administrative action.
iv) Ministerial action

i) Rule-making action or quasi-legislative action – Legislature is the

law-making organ of any state. In some written constitutions, like the
American and Australian Constitutions, the law making power is expressly
vested in the legislature. However, in the Indian Constitution though this
power is not so expressly vested in the legislature, yet the combined effect of
Articles 107 to III and 196 to 201 is that the law making power can be
exercised for the Union by Parliament and for the States by the respective
State legislatures. It is the intention of the Constitution-makers that those
bodies alone must exercise this law-making power in which this power is
vested. But in the twentieth Century today these legislative bodies cannot
give that quality and quantity of laws, which are required for the efficient
functioning of a modern intensive form of government. Therefore, the

Module – 1 29