Administrative Law

Chapter: Introduction
LL.B (Hons) Second Year 2nd Semester
Course Code: LAW 2201
(Collected by Jonaid Ahamed Sabuj, Law-14th)

Definition of Administrative Law:

Administrative law is a branch of public law that governs the powers, duties, and functions of
administrative authorities. It regulates the relationship between these authorities and individuals or
organizations to ensure that administrative actions are lawful, reasonable, and just. Here are some
insightful perspectives:
Ivor Jennings
Administrative Law is the law relating to the administration. It deter- mines the organisation, powers
and duties of the administrative authorities.
This is the most widely-accepted definition. But according to Griffith and Street, there are two
difficulties:
(i) It does not distinguish administrative law from constitutional Jaw; and
(ii) It is a very wide definition, for the law which determines the powers and functions of
administrative authorities may also deal with the substantive aspects of such powers, for example,
legis- lations relating to public health services, houses, town and country planning, etc.; but these are
not included within the scope and ambit of administrative law"
Wade
“Administrative law is the law relating to control of governmental power. The primary object of
administrative law is to keep powers of the government within their legal bounds, so as to protect the
citizens against their abuse.”
Griffith and Street:
The main object of administrative law is the operation and control of administrative authorities; it
must deal with the following three aspects:
1) What sort of power does the administration exercise?
2) What are the limits of those powers?
3) What are the ways in which the administration is kept within those limits?
Historical Background of Administrative Law
Administrative law's emergence reflects the evolving role of governments in addressing complex
socio-economic challenges. Historically, it developed in response to inadequacies in traditional legal
systems to regulate modern governance effectively. Here's how it unfolded:
1. England

1
Initially resisted as a separate branch, administrative law in England gained recognition in the 20th
century due to the increasing need for administrative discretion in governance.
Developments like the Statutory Instruments Act, 1946, and Tribunals and Inquiries Act, 1958
underscored the importance of judicial review over administrative actions.
A.V. Dicey opposed the concept, but practical demands, such as managing welfare programs and
industrial regulations, necessitated its growth.
2. France
France pioneered droit administratif, establishing specialized administrative courts like the Conseil
d'État.
This system efficiently resolved disputes involving the state while maintaining judicial oversight,
debunking Dicey’s criticism of French administrative law as lacking the rule of law.
3. India
Administrative law in ancient India was based on the rule of Dharma, ensuring justice and fairness.
Under British rule, laws like the State Carriage Act, 1861, and Bombay Port Trust Act, 1879, laid the
groundwork for modern administrative law.
Post-independence, India's welfare state philosophy drove administrative law's expansion, with acts
like the Minimum Wages Act, 1948, and judicial oversight through Articles 32, 226, and 227.

4. USA
In the U.S., administrative law's growth began with the Interstate Commerce Act, 1877, and
accelerated during the New Deal Era, leading to the Administrative Procedure Act, 1946.
This law formalized procedures for administrative agencies, balancing their legislative, executive, and
judicial functions with judicial review.

Has the Growth of Administrative Law Made Separation of Powers

Unworkable?
The growth of administrative law has blurred the traditional boundaries of the separation of powers
doctrine but hasn't rendered it unworkable. Instead, it reflects the evolving needs of modern
governance.

1. Phenomenal Growth in Science and Technology

The 20th-century advancements in science and technology introduced challenges like urbanization,
environmental pollution, automation, and economic disparity.
These multi-dimensional problems necessitated swift governmental intervention, requiring specialized
administrative bodies to manage and regulate them.
2. Inadequacy of Traditional Systems
Courts and legislatures were insufficient to handle the volume and complexity of modern regulatory
issues:

2
Courts are technical, expensive, and slow, unsuitable for dynamic issues like industrial disputes.
Legislatures, limited by time and technical expertise, cannot pass the required volume or quality of
laws for modern governance.
Administrative bodies fill this gap by combining rule-making, execution, and adjudication.
3. Efficiency and Flexibility
Administrative law ensures preventive justice rather than punitive measures, offering solutions before
conflicts arise.
In cases like industrial disputes, administrative adjudication provides not just resolutions but also
policy development to prevent recurrence.
4. Specialization and Expertise
Administrative bodies employ experts who understand technical and sector-specific issues better than
generalist judges or legislators.
For example, in Vellukunnel v. Reserve Bank of India, the court deferred to the Reserve Bank's
expertise in banking regulation.
5. Judicial Oversight as a Safeguard
Judicial review ensures administrative actions remain within constitutional bounds.
In India, Articles 32 and 226 empower courts to review administrative decisions for legality, ensuring
accountability.
Conclusion
The growth of administrative law reflects the practical needs of a modern welfare state, addressing
challenges traditional systems cannot manage. While it has blurred the strict separation of powers, it
hasn't rendered the doctrine unworkable. Instead, it has adapted to create a system of checks and
balances, combining efficiency with accountability. Judicial oversight and procedural safeguards
ensure administrative bodies function within constitutional limits, making the separation of powers
doctrine more flexible and effective in contemporary governance.

Distinction Between Administrative Law and Constitutional Law

1. Relationship
Similarity: Both administrative law and constitutional law deal with public law and share the same
sources.
Difference: Administrative law is an adjunct to constitutional law, focusing on implementation and
practical aspects of governance.

2. Historical Perspective
Early English writers did not distinguish between administrative law and constitutional law.
Keith's Observation: "It is logically impossible to distinguish administrative law from constitutional
law, and all attempts to do so are artificial."

3. Definitions and Scope

Constitutional Law:
- Focuses on the structure and organization of government organs such as the legislature, executive,

3
and judiciary.
- Example: How these organs are formed and interrelated.

Administrative Law:
- Deals with the functioning and powers of administrative bodies.
- Example: How these bodies exercise their powers to implement policies and resolve disputes.
Holland's View: "Constitutional law describes the various organs of government at rest, while
administrative law describes them in motion."

4. Principles vs. Details

Constitutional Law:
- Focuses on fundamental principles of governance and the framework of the state.
- Example: Separation of powers, rule of law, and sovereignty.

Administrative Law:
- Deals with detailed processes of governance, such as rule-making, administrative discretion, and
judicial review of administrative decisions.
- Example: Licensing procedures, regulatory compliance, and adjudication of disputes.

5. Rights vs. Public Needs

Constitutional Law:
- Emphasizes the rights of individuals and their protection against state overreach.
- Example: Fundamental rights and liberties.

Administrative Law:
- Prioritizes public needs and ensures effective governance for societal benefit.
- Example: Implementing public welfare schemes.

6. Sources
Countries with Written Constitutions (e.g., USA, India):
- Constitutional Law: Source is primarily the constitution.
- Administrative Law: Sources include statutes, regulations, precedents, and customs.

England (Unwritten Constitution):

- The distinction between constitutional and administrative law is more blurred due to the lack of a
codified constitution.

7. Practical Examples
Constitutional Law:
- Concerned with how a minister is appointed.

Administrative Law:
- Concerned with how the minister performs their duties, such as approving housing schemes or land
acquisition projects.
Jennings’ View: "Administrative law is not concerned with the appointment of the Minister of
Housing but with their decisions affecting individuals or groups."

8. Control Mechanisms
Constitutional Law:
- Establishes the framework for judicial review, separation of powers, and governance.

Administrative Law:

4
- Provides remedies for abuses of power, ultra vires actions, and violations of natural justice.
- Example: Judicial review under Articles 32 and 226 in India.

9. Overlap
Constitutional and administrative law often overlap, forming a watershed area.
Example: When a minister’s administrative decision impacts fundamental rights, constitutional law
ensures judicial oversight.

10. Importance for Students

A student of administrative law inevitably studies constitutional law to understand the framework
within which administrative authorities operate.

Conclusion
Constitutional law and administrative law differ in their focus and scope:
- Constitutional law deals with the framework and principles of governance.
- Administrative law focuses on the practical functioning and implementation of policies.

Despite overlaps, administrative law has evolved into an independent discipline, essential for
addressing the complexities of modern governance and ensuring the balance between public needs
and individual rights.

Nature and Scope of Administrative Law:(C.K TAKWANI)

1. Core Concept and Purpose:
Administrative law governs the powers and procedures of government authorities. It ensures that
these authorities act within the bounds of the law and provides remedies for individuals when their
rights are violated due to the misuse of administrative powers.
2. Significance in a Welfare State:
In a welfare state, the government implements various schemes to benefit society, such as education,
healthcare, and social security. While these programs aim to promote public welfare, they may
sometimes infringe upon individual rights.
3. Balancing Rights and Social Welfare:
Administrative law seeks to maintain a balance between the government's role in promoting societal
welfare and protecting individual rights. It ensures that public welfare initiatives do not result in
arbitrary violations of personal freedoms.
4. Risks and Potential Outcomes:
Proper use of administrative powers leads to the development of a welfare state.
However, misuse of these powers can result in authoritarian governance, restricting personal freedoms
and rights.
5. Objective of Administrative Law:
The primary aim of administrative law is to ensure that administrative authorities operate within their
legal limits. It prevents discretionary powers from turning into unchecked, arbitrary actions.
As Lord Denning aptly stated, “properly exercised the new power of executive lead to the Welfare
State; but abused they lead to the Totalitarian State.”

5
Nature of Administrative Law(online)
Administrative law is a branch of public law that governs the organization, powers, and functions of
administrative authorities. It ensures that government actions comply with the law and protects the
rights of individuals. The nature of administrative law includes:
1. Public Law: It deals with the relationship between government authorities and individuals,
ensuring that administrative actions are within legal boundaries.
2. Regulatory Framework: It provides the legal framework for regulating the powers and duties of
administrative bodies.
3. Dynamic and Flexible: Administrative law evolves with societal needs, adapting to changes in
government policies and public administration.
4. Judicial Oversight: It involves the judiciary’s role in reviewing administrative actions to ensure
legality and fairness.

Scope of Administrative Law

The scope of administrative law covers a wide range of areas related to governance and public
administration, including:

1. Rule-Making Powers: Examines the delegated legislative powers of administrative bodies, such as
framing rules and regulations.
2. Decision-Making Powers: Governs how administrative authorities make decisions, including
issuing permits, licenses, and imposing penalties.
3. Discretionary Powers: Regulates the discretionary powers of administrative authorities to prevent
abuse or arbitrariness.
4. Administrative Tribunals: Includes the functioning and jurisdiction of specialized tribunals for
dispute resolution.
5. Judicial Review: Provides mechanisms to challenge administrative decisions through courts for
illegality, irrationality, or procedural impropriety.
6. Public Accountability: Ensures administrative authorities are accountable for their actions to the
public and judiciary.
7. Quasi-Judicial Functions: Covers functions where administrative authorities act like judicial
bodies in specific cases, ensuring justice and fairness.
8. Grievance Redressal: Includes ombudsman systems and complaint mechanisms to address citizen
grievances against administrative actions.
Administrative law balances the need for efficient administration with the protection of individual
rights, ensuring governance within the rule of law.

Reasons for Growth of Administrative Law(C.K Takwani)

The following factors are responsible for the rapid growth and development of administrative law:

6
(1) Radical Change in the Role of the State:
The negative policy of merely maintaining "law and order" and following "laissez-faire" has been
abandoned. The State no longer limits itself to the traditional and minimal functions of defense and
the administration of justice. Instead, it has adopted a positive approach, functioning as a welfare
State and taking on a wide range of responsibilities.

(2) Inadequacy of the Judicial System:

The traditional judicial system was unable to handle all types of disputes effectively. It was slow,
expensive, lacked specialized expertise, and was burdened with formalities. The courts were already
overwhelmed, and it was not possible to ensure the speedy resolution of even critical issues, such as
disputes between employers and employees, lockouts, and strikes. These pressing problems could not
be solved by merely applying statutory provisions literally; they required consideration of various
other factors, which the ordinary courts were not equipped to handle. Hence, specialized bodies like
industrial tribunals and labour courts were established, possessing the expertise and techniques needed
to address such complex issues.

(3) The legislative process was also inadequate.

The legislature lacked the time and technique to deal with all the details. It was nearly impossible to
lay down comprehensive rules and procedures, and even when detailed provisions were made, they
often proved to be defective and inadequate, such as in rate fixing. Therefore, it became necessary to
delegate some powers to administrative authorities.

(4) There is scope for experimentation in the administrative process.

Unlike legislation, administrative rules do not need to remain in force until the next session of the
legislature. Rules can be created, tested for a period, and, if found defective, modified or altered
quickly. Thus, legislation is rigid, while the administrative process is flexible.

(5) Administrative authorities can avoid technicalities.

Administrative law adopts a functional approach rather than a theoretical and legalistic one.
Traditional judiciary systems are conservative, rigid, and bound by technicalities. Courts cannot
decide cases without adhering to formalities and technical rules. In contrast, administrative tribunals
are not strictly bound by rules of evidence and procedure, allowing them to take a practical view and
resolve complex issues efficiently.

(6) Administrative authorities can take preventive measures.

Unlike regular courts, administrative authorities do not need to wait for disputes to be brought before
them. They can take proactive actions, such as licensing or rate fixing, to prevent potential issues.
These measures are often more effective than punishing someone after they have violated a law. As
Freeman points out, "Inspection and grading of meat answers the consumer's need more adequately
than does a right to sue the seller after the consumer is injured.”

7
(7) Administrative authorities can enforce preventive measures effectively.
They have the power to take actions like suspending, revoking, or canceling licenses and destroying
contaminated goods. Such enforcement measures are not typically available through regular courts,
making administrative authorities more efficient in handling specific regulatory and preventive tasks.

Differences Between English Administrative Law and Bangladeshi Administrative Law

Administrative law in England and Bangladesh differs in its evolution, application, and framework
due to their distinct historical, constitutional, and socio-political contexts. Below is a comparative
analysis:
1. Constitutional Framework
England: Follows an unwritten constitution based on statutes, customs, conventions, and judicial
precedents.
Administrative law is less distinct from constitutional law due to the absence of a codified
constitution.
The doctrine of parliamentary sovereignty ensures that administrative actions are subject to
parliamentary control.
Bangladesh: Operates under a written constitution (adopted in 1972), which serves as the supreme
law.
Administrative law is more distinct, as the Constitution explicitly defines the roles and limitations of
administrative authorities.
The Constitution ensures judicial review of administrative actions under Articles 102 (writ
jurisdiction).
2. Evolution and Development
England: Evolved organically through common law principles and statutory developments.
Administrative law was initially resisted (Dicey's rule of law), but modern statutes like the Tribunals
and Inquiries Act, 1958 and Judicial Review Procedures established its significance.
Bangladesh: Influenced by the legal framework of British India, inherited from colonial rule.
Post-independence, administrative law evolved to address the needs of a welfare state, with key
reliance on the Constitution and judicial decisions.
3. Judicial Review
England: Judicial review is based on common law principles and focuses on three grounds:
 Illegality.
 Irrationality.
 Procedural impropriety.
The courts do not challenge parliamentary supremacy but ensure administrative actions comply with
the law.

8
Bangladesh: Judicial review is explicitly provided under Article 102 of the Constitution, empowering
the High Court Division to issue writs such as certiorari, mandamus, prohibition, habeas corpus, and
quo warranto.
It protects fundamental rights and ensures administrative authorities act within their jurisdiction.
4. Sources of Administrative Law
England: Derived from common law, parliamentary statutes, statutory instruments, and judicial
precedents.
No codified administrative law exists; it relies heavily on case law.
Bangladesh: Derived from the Constitution, statutes, customs, and judicial precedents.
The Constitution explicitly outlines the administrative framework and limits.

5. Fundamental Rights
England: Fundamental rights are protected through common law and legislation like the Human
Rights Act, 1998, incorporating the European Convention on Human Rights (ECHR) into domestic
law.
Bangladesh: Fundamental rights are explicitly enshrined in Part III of the Constitution.
Citizens can directly approach the High Court Division for enforcement under Article 102.
6. Administrative Tribunals
England: Tribunals play a significant role in resolving disputes between individuals and
administrative authorities.
Established under the Tribunals and Inquiries Act, 1958, now replaced by the Tribunal Courts and
Enforcement Act, 2007.
Bangladesh: Administrative tribunals are governed by the Administrative Tribunals Act, 1980,
primarily handling disputes related to public service matters.
Decisions of tribunals can be challenged before the Appellate Division of the Supreme Court.
7. Delegated Legislation
England: Delegated legislation is extensively used and monitored by parliamentary committees.
The judiciary ensures that delegated powers are exercised within the prescribed limits.
Bangladesh: Delegated legislation is also common but less robustly monitored.
Courts in Bangladesh play a more active role in scrutinizing the validity of delegated legislation under
constitutional provisions.
8. Remedies
England: Common remedies include judicial review, declaration, injunction, and damages.
Remedies are procedural and rooted in common law principles.
Bangladesh: Remedies include constitutional writs (mandamus, certiorari, etc.), administrative
appeals, and judicial review.

9
The Constitution provides a broader framework for remedies, especially for violations of fundamental
rights.
9. Focus
England: Focuses on ensuring administrative actions are reasonable, lawful, and procedurally fair.
Balances individual rights with parliamentary sovereignty.
Bangladesh: Emphasizes protecting fundamental rights and ensuring administrative authorities
comply with constitutional mandates.
Balances individual rights with public needs in a welfare state framework.

(a) Comprehensive Definition of Administrative Law:

Administrative law is the branch of public law that governs the structure, powers, and functions of
administrative authorities. It regulates their relationship with individuals and ensures that
administrative actions comply with principles of legality, fairness, and accountability. Administrative
law also provides remedies for those adversely affected by administrative decisions.
As Ivor Jennings defines:
"Administrative law is the law relating to the administration. It determines the organization, powers,
and duties of administrative authorities."
"In England, we know nothing of administrative law and we wish to know nothing about it." –
Analysis

This statement by A.V. Dicey, a staunch advocate of the rule of law, reflects his rejection of the
concept of administrative law, particularly as it existed in France (droit administratif). He argued that
such a system, which separates administrative courts from regular courts, was incompatible with the
principles of equality before the law and parliamentary sovereignty.
Extent of Truth in Dicey’s Claim
1. Historical Perspective:
During Dicey’s time (19th century), England did not have a separate system of administrative courts
like France's Conseil d'État.
Administrative disputes were resolved by ordinary courts, which applied common law principles.
2. Modern Developments:
Dicey’s claim is no longer accurate in contemporary England.
The growth of administrative functions, welfare state policies, and delegated legislation necessitated
the development of administrative law.
3. Establishment of Administrative Mechanisms:
England has developed a system of administrative law through statutes and judicial principles:
Tribunals and Inquiries Act, 1958 established tribunals for administrative adjudication.
Judicial review ensures administrative actions comply with legal standards.

10
4. Criticism of Dicey’s View:
Dicey failed to recognize the existence of administrative discretion and quasi-judicial powers during
his time.
His emphasis on ordinary courts ignored the practical need for specialized tribunals and
administrative procedures.
Why is the Classification of Administrative Action Necessary?
Classification of administrative action is crucial for the following reasons:
1. Understanding the Nature of Administrative Functions
Administrative actions can be categorized as:
Quasi-legislative: Rule-making functions (e.g., delegated legislation).
Quasi-judicial: Dispute resolution by administrative tribunals.
Purely administrative: Day-to-day implementation of policies (e.g., issuing licenses, approvals).
2. Facilitating Judicial Review
Classification helps courts determine the appropriate grounds for reviewing administrative actions:
Illegality: Whether the action is within the authority granted by law.
Irrationality: Whether the decision is unreasonable or arbitrary.
Procedural Impropriety: Whether due process was followed.
3. Ensuring Accountability
By classifying actions, it becomes easier to identify the standards of accountability and oversight
required for each type of action.
4. Protecting Individual Rights
Classification helps distinguish between administrative and legislative or judicial functions, ensuring
that individual rights are not violated through arbitrary use of administrative powers.
5. Balancing Public Interest
It helps maintain a balance between the efficient functioning of administrative authorities and the
protection of individual rights, especially in welfare state policies.

(b) "It is logically impossible to distinguish administrative from constitutional law and
all attempts to do so are artificial." – Why?
This statement by Keith reflects the close interrelationship between administrative law and
constitutional law. While both are often treated as separate branches of public law, their objectives,
sources, and functions frequently overlap, making the distinction between them appear artificial.

Reasons Why the Distinction is Artificial

1. Common Objective:
- Both administrative law and constitutional law regulate the exercise of public power to ensure
accountability, legality, and fairness.

11
 - Constitutional law establishes the framework, while administrative law deals with its practical
application.
2. Shared Sources:
- Both derive authority from statutes, judicial precedents, and customs.
- For example, laws governing administrative actions are often rooted in constitutional principles.
3. Functional Overlap:
- Constitutional law focuses on the structure and powers of government organs, while administrative
law focuses on their functioning.
- Example: A minister's appointment falls under constitutional law, but their decisions about policies
fall under administrative law.
4. Judicial Review:
- Both rely on judicial review to ensure compliance with legal standards.
- In constitutional law, courts review actions for violations of fundamental rights, while in
administrative law, they review actions for procedural fairness and legality.
5. Rights vs. Public Needs:
- Constitutional law emphasizes the protection of individual rights, while administrative law
balances individual rights with public needs.
- However, the distinction blurs when administrative actions violate fundamental rights, requiring
constitutional remedies.
6. Practical Illustration:
- Constitutional Law: Governs the process of appointing a minister.
- Administrative Law: Regulates the minister's actions in implementing policies, such as land
acquisition or housing schemes.

Criticism of Keith's Statement

While administrative and constitutional law overlap significantly, they are not entirely
indistinguishable. The distinction lies in their focus and scope:
1. Focus:
- Constitutional law deals with fundamental principles like separation of powers and rule of law.
- Administrative law regulates day-to-day functioning of administrative authorities.
2. Scope:
- Constitutional law is broad and foundational, covering the structure of government and
fundamental rights.
- Administrative law is narrower, dealing with specific actions and processes.
3. Purpose:
- Constitutional law ensures legitimacy of government actions.
- Administrative law ensures efficiency and fairness in the execution of these actions.
Keith’s statement highlights the interdependence of administrative and constitutional law. While their
overlap makes the distinction appear artificial, it is practical and necessary. Constitutional law
provides the principles for governance, while administrative law ensures their implementation. Both
work together to maintain accountability, transparency, and justice in public administration.

12