"No conception may be understood save through-its history." history." Auguste Comte. " Acquaintance with legal history is almost almost totally lacking (among (among judges) whenever there is an epounding o! history #lackstone still usually su!!ices." John Henry Wigmore.
Introduction The main point of distinction between administrative law and all other laws is the extent of its application and control that is exercised by the Courts over these power of the administrative bodies when they are related to the citi!ens. This may be regulated by ordinary Courts or with the Courts having special urisdiction over such matters.# Administrative law is the study of governance. While the $arliament creates authority the $resident enforces enforces that authority authority and courts confine or discipline discipline the exercise exercise of that authority authority it is agencies that govern. That said the starting point for many man y administrative law cases is an act of $arliament $arlia ment that allows the agency to function. %&t is axiomatic that administrative agencies may issue regulations only pursuant to authority delegated to them them by Congress.'( &t has at all times been claimed that when the rights of the government are widely stressed then there is a threat to the rights of the individuals. The fundamental rights are restricted through the usage of %public order' or that of the %due process of law' and in these cases the Courts may or may not have the urisdiction to loo) into the matter as to whether there is a violation of such rights or not.*
+eparation of powers has been the important concept of modern democracy. This has been considered as one of the basic principles of democratic governance thus there has to be administrative independence from udicial review by the ordinary Courts. With reference to the plethora of cases and the udgements rendered by The +upreme Court , as +eparation of 1 O. Hood Phillips and Paul Jackson, O. Hood Phillip’s Constitutional and Administrative Law (6th ed., London: Sweet and Maxwell, 19!" at 11. # $%. Li&'a' $ss)n *. +, -6 +./d 6!9, 691(0.. i'. #". / Id, at 16. , -ai +ahib -am Jawaya v. +tate of $unab reported in A&A&- #// +.C. /, at p.//0 -am 1rishna 2almia v. Justice Tendol)ar Tendol)ar reported in A&- #/3 +.C. /*3 at p. /,0
$owers has been held to be a sacrosanct component of %4asic structure' of the Constitution of &ndia therefore cannot be curtailed by any law. The concept of separation of powers grew out of centuries of political and philosophical development. &ts origins can be traced to ,th century 4.C. when Aristotle in his treatise entitled $olitics described the three agencies of the government vi!. the 5eneral Assembly the $ublic 6fficials and the Judiciary. / &n republican -ome there was a somewhat similar system consisting of public assemblies the senate and the public officials all operating on the principle of chec)s and balances.
0
5enerally there are three wings performing three different functions7 8egislature 9xecutive and Judiciary. At the same time if these three wings are totally independent of each other then there would be no protection against the tyranny of the administrative wing. 2ue to this now the Courts have been empowered with the power of udicial review of the administrative actions.: Administrative law provides for a mechanism to control the administration by an outside agency so that there is no inustice done to the individual as well as there is enough freedom for the administration to operate independent of any other body. 2ue to the increasing powers of the state it has been observed by 8ord 2enning that % properly eercised +.C. Advocates;on;-ecord Association v.
$'istotle also desc'i&ed th'ee ele%ents in e*e' constitution as the deli&e'ati*e ele%ent, the ele%ent o2 %a3ist'acies, and the 4udicial ele%ent. See 3ene'all 5o&inson, 7he 0i*ision o2 8o*e'n%ental Powe' in $ncient 8'eece 1! Pol.Sci..61- (19/". 6 J.;'ce, Mode'n 0e%oc'acies /91 (19#1" cited in Sa%.J.<'*in, Sepe'ation o2 Powe's: Judicial =ndependence 2'o% the we&site: http:>>www.4sto'.o'3>sta&le>1191/# (last accessed on 16?1#?#1". <'ic ;a'endt, @Sepa'ation o2 Powe's and onstitutional 8o*e'n%entA, B199C P.L. 99. Indian Express Newspapers (Boma!" Private Limited *. #nion o$ India , $=5 19!6 S -6. 7he ent'al 8o*e'n%ent issued an o'de' unde' s.# o2 usto%s $ct, 196#, withd'awin3 all the exe%ptions that we'e 3'anted to the newspape' 2'o% the custo%s dut. 0ue to this the'e was hea* &u'den on the newspape', as not onl the dut exe%ption was 'e%o*ed, the'e was a positi*e inc'ease in the sa%e. Such a withd'awal was challen3ed unde' $'t./# on the 3'ound that the'e was a 'est'iction placed on the 2unda%ental 'i3ht o2 2'eedo% o2 speech and exp'ession 3ua'anteed unde' $'t.19 (1"(a". 7he ou't looked into the 2act whethe' such an o'de' was within the pu'*iew o2 the powe's that a'e 3'anted to the executi*e o' notD $2te' the conside'ation o2 all the 'ele*ant 2acto's, the ou't ca%e to the conclusion that the 3o*e'n%ent should ha*e a 'econside' the o'de' o2 'e%o*in3 the exe%ption.
the new powers o! the eecutive lead to a $el!are %tate but abused they lead to the &otalitarian %tate'. There are for the same purpose many remedies and weapons that are available with the aggrieved individual. 3
Definition of Administrative Law:
There is no universally accepted definition of administrative law but rationally it may be held to cover the organi!ation powers duties and functions of public authorities of all )inds engaged in administration> their relations with one another and with citi!ens and non; governmental bodies> legal methods of controlling public administration> and the rights and liabilities of officials. Administrative law is to a large extent complemented by constitutional law and the line between them is hard to draw. The law relating to public health education housing and other public services could logically be regarded as part of the corpus of administrative law> but because of its sheer bul) it is usually considered ancillary. Maitland discussed the definitions of constitutional and administrative law. He examined the
views of Asutin to whom constitutional law is simply what person or classes of persons bore the sovereign powers while administrative law determines the end and odes to and in which the sovereign powers were exercised. Holland?s view were summari!ed by @aitland as %& thin) we catch his idea if we say that while constitutional law deals with structure administrative law deals with function.' #= $rofessor
9 http:>>www.&'itannica.co%>topic>ad%inist'ati*e?law 1 +.E. Maitland, Constitutional Histor! o$ En%land (a%&'id3e, 7he Fni*e'sit P'ess 19#, #1 pu&lished & law &ook exchan3e, Fnion G.J. 19!" 11 =.P. Masse: $d%inist'ati*e law =nt'oduction & P'o2. Fpend'a ;axi (! th ed.
commonly accepted definition today but it does not attempt to distinguish constitutional and administrative law. &vor Jennings #/7(#:B views administrative law as the law relating to $ublic administration. &t is concerned from the legal point of view with the forms and constitutional position of public authorities. 4ut Foulkes #3(7#B observes that it is also concerned with the powers and duties of administrators with their legal relationships with another with the public and with their employees. According to $rofessor H.W.R Wade first approximation to a definition of administrative law is to say that it is the law relating to the control of governmental power and as a second approximation to a definition administrative law may be said to be body of general principles which govern the exercise of powers and duties by public authorities. According to Wade administrative law relates to the control of government power. &n his opinion %the primary obective of administrative law is to )eep powers of the government within their legal limits so as to protect the citi!ens against their abuse.'#(
Histor of Administrative Law
9ven though administrative law is a newly coined term but its history can be traced bac) to the advent of the governments. &t has been in existence one way or another in every form of government and in all the ages. The development of administrative law goes hand;in;hand with the development of the society. Administrative law can more rightly be said to be the sociology of law and not the philosophy of law. The rapid growth of administrative law in the modern times can be attributed to the following critical changes in the philosophy of the role and function of the state. " roit administrati! is in its contents utterly unli)e any branch of modern 9nglish law" wrote 2icey#* in #33/ "or the term droit administrati! 9nglish legal phraseology supplies no proper eDuivalent .&n 9ngland and in countries which li)e the
4ut in the more than half a century which has elapsed since that was written these concepts have undergone a change which affected even that author himself #, and it is now generally recogni!ed that not only Continental nations but 4ritain and the and again when udges do often consult with the )ing and state7 the one when there is matter of law intervenient in business of state> the other when there is some consideration of state intervenient in matter of law.'#/ The subordination of the udicature to the royal will was strongly resisted by Chief Justice +ir 9dward Co)e 4acon?s great rival who refused to comply with James &?s wishes in a number of cases in which the royal prerogative was involved. The 1ing criticised the udges more than once on their duty to respect the royal prerogative and power. As a result the executive possessed no inherent powers other than those subect to the rule of law inasmuch as legislation now had to emanate from the crown in $arliament. &n addition the udges were expected to protect the subect against the executive. A more intangible conseDuence was the belief that %government' and %law' were often thought to be opposed to one another. The earlier conflict between crown and udges survived to become an antagonism between the legal profession and the executive particularly the civil service. &n rance the separation of powers was given a place of honour in the 2eclaration of the -ights of @an and of the Citi!en #:3B. #0 &n the rench view however if a court were permitted to review an administrative act or decision it would contravene the separation of powers as much as if the executive could override the decision of a court. Just as an appeal from a court lies to a higher court the reasoning goes so an appeal from an administrative 1- See 0ice*, L$E $G0 OP=G=OG. =G >a*alon.law.ale.edu>1!thKcentu'>'i3htso2.asp
authority should lie to a higher administrative authority. 6nly thus would the true separation of powers be observed. #: The *onseil du +oi of the ancien rEgime with its functions as legal adviser and administrative court is generally considered to be the precursor of the *onseil d,tat . The basic structure of the *onseil d,tat was laid down by Fapoleon however. Among the functions accorded to it by the constitution of the year G&&& 2ecember #:B was that of adudicating in conflicts that might arise between the administration and the courts. &t was also empowered to adudicate any matters previously left to the minister?s discretion that ought to be the subect of udicial decision. &n #3=0 a decree created a Judicial Committee of the Conseil to examine applications and report thereon to the 5eneral Assembly of the Conseil. These enactments laid the foundation of an administrative urisdiction that was not clearly established until @ay (, #3:( when a law delegated to the *onseil d,tat the udicial power to ma)e binding decisions and recogni!ed the Conseil as the court in which claims against the administration should be brought. The *onseil d,tat is and always has been part of the administration. &t has for long had the tas) of giving legal advice to the government on bills regulations decrees and administrative Duestions. &t is this that long led foreign urists into believing that when sitting as a court its decisions would inevitably be biased in favour of the executive. Fothing could be further from the truth and today the Conseil is universally recogni!ed as an independent court that provides rench citi!ens with exceptionally good protection against maladministration. +uits that are directed against the rench administration are heard in the +ection du Contentieux or Judicial 2ivision the successor of the Judicial Committee after restructuring in #3:(. The Conseil d?tat is the final authority in administrative disputes. 6wing to the immense volume of wor) falling on it the former prefectural councils which served as administrative courts subordinate to the Conseil d?tat were transformed in #/* into administrative tribunals of first instance and the professional Dualifications and career prospects of their members were improved. The great maority of cases go before these tribunals and the Conseil d?tat is the court of first and last instance only in those exceedingly rare cases when it is specially designated for that purpose. 1 http:>>www.&'itannica.co%>topic>ad%inist'ati*e?law
&f difficulty or doubt arises as to whether a case falls within the administrative urisdiction or that of the ordinary courts the Duestion is resolved by the Tribunal des Conflits. This is a court specially established for the purpose consisting of five udges from the Cour de Cassation the highest civil courtB and five from the Conseil d?tat. The minister of ustice in his capacity as )eeper of the seals garde des sceauxB may sometimes preside and cast a tie; brea)ing vote. +everal other countries have followed rance in establishing councils of state. Among them are &taly 5reece 4elgium +pain Tur)ey $ortugal and 9gypt. &t must be stated however that in no other country has a council of state acDuired such high status powers authority or prestige as in rance. Reasons for !rowt" of Administrative Law
Administrative law is considered as an intensive form of government. &t deals with the pathology of functions. The functions that are discharged by the administrative authorities differ from time to time depending upon the changes in socio;economic conditions in any nation. The following factors are responsible for the rapid growth and development of administrative law7 #. There is a radical change in the philosophy as to the role played by the +tate. The negative policy of maintaining Ilaw and orderI and of Ilaisse! faireI is given up. The +tate has not confined its scope to the traditional and minimum functions of defence and administration of ustice but has adopted the positive policy and as a welfare +tate has underta)en to perform varied functions. (.
and rules for meeting any emergency situations that arise in a locality. 2ue to the flexibility of ma)ing the rules obviously there is a constant growth of administrative law ma)ing in the country. ,. The udicial system proved inadeDuate to decide and settle all types of disputes. &t was slow costly inexpert complex and formalistic. &t was already overburdened and it was not possible to expect speedy disposal of even very important matters e.g. disputes between employers and employees loc)outs stri)es etc. These burning problems could not be solved merely by literally interpreting the provisions of any statute but reDuired consideration of various other factors and it could not be done by the ordinary courts of law. Therefore industrial tribunal and labour courts were established which possessed the techniDues and expertise to handle these complex problems. /. The legislative process was also inadeDuate. &t had no time and techniDue to deal with all the details. &t was impossible for it to lay down detailed rules and procedures and even when detailed provisions were made by the legislature they were found to be defective and inadeDuate e.g. rate fixing. And therefore it was felt necessary to delegate some powers to the administrative authorities. 0. There is scope for experiments in administrative process. Here unli)e legislation it is not necessary to continue a rule until commencement of the next session of the legislature. Here a rule can be made tried for some time and if it is found defective it can be altered or modified within a short period. Thus legislation is rigid in character while the administrative process is flexible. :. The administrative authorities can avoid technicalities. Administrative law represents functional rather than a theoretical and legalistic approach. The traditional udiciary is conservative rigid and technical. &t is not possible for the courts to decide the cases without formality and technicality. The administrative tribunals are not bound by the rules of evidence and procedure and they can ta)e a practical view of the matter to decide complex problems. 3. Administrative authorities can ta)e preventive measures e.g. licensing rate fixing etc.
Administrative authorities can ta)e effective steps for enforcement of the aforesaid preventive measures> e.g. suspension revocation and cancellation of licences destruction of contaminated articles etc. which are not generally available through regular courts of law.
rowth o! Administrative aw in /ndia The history shows that man has always appealed to something higher than that which is his own creation. &n urisprudence -omans call it K jus naturale, Hobbes 8oc) and -ousseau call it K social contract, or 0natural law, and the modern man calls it +ule o! aw. The term -ule of 8aw of derived from rench phase 0la principe de legalite, which means the principle o! legality or the morality o! law. &t refers to a government based on principles of law and not of man. 9dward Co)e is said to be the originator of this concept. #3 2icey?s concept of -ule of 8aw contains three principles7 #. Absence of discretionary power in the hands of government officials (. $erson should not be punished except for the breach of law and *. The rights must flow from customs and traditions of people. The system of administrative legislation and adudication has existed in &ndia from a very long time. The 4ritishers came to &ndia for trade so the primary obect of 4ritish administration was to maximise profit. As the 4ritishers gained control over &ndia the efficiency of administration became the basic necessity to fulfil its basic purpose. The executive at that time had overriding powers in the matters of ustice. The establishment of +upreme Court in Calcutta had inaugurated an era of independent udicial administration but it came to an end with the passage of the Act of +ettlement #:3#. After the 4attle of $lassey #:/: a centralised administrative system was formed to ma)e laws. Thereafter many regulations were passed to ta)e care of administrative ustice system one among them is Cornwallis Code #:*. The other one is +ection #=3 of -egulation Act #3 &.$. @assey7 Administrative law &ntroduction by $rof.
#3(( which reDuired administrative agencies to record facts evidence and decision. The court had power to control administrative actions but it payed great respect and attention to the administrative decision. # Till the end of 4ritish rule the &ndian 5overnment was concerned with the more primary duties only. The &ndian Constitution was adopted on the policy of welfare state. Garious sections in the constitution such as Article * reDuire the state to direct its policy towards adeDuate means of livelihood. Article ,: tal)s about rising of the level of nutrition and standard of living of its people article *( and ((0 confers the power to High courts and +upreme Courts to issue writs. @oreover the constitution itself provides for establishment of administrative agencies. Article *#/ tal)s about $ublic +ervice Commission in &ndia and article *( tal)s about 9lection Commissions. (= The concept of +ule o! aw is not well defined legal concept. &n the case of A..1 2abalpur v. %hivkant %hukla34 an attempt was made to challenge the administrative order during emergency on the ground that it violates the principle of +ule o! aw. Though the contention did not succeed but this case made it clear that +ule o! aw can be used as a legal concept. &n 5esavananda #harti v. %tate o! 5erala33 the +upreme Court of &ndia emphatically highlighted and held the +ule o! aw was considered the basic structure of &ndian constitution. &n /ndira Nehru andhi v. +aj Narain 36 the Judges held that the principle o! non-arbitrariness which is an essential attribute o! the rule o! law is all pervasive throughout the *onstitution7 and an adjunct o! this principle is the absence o! absolute power there!ore Article *(A offends the concept of -ule of 8aw. The +upreme Court in case of %om +aj v. %tate o! 8aryana 39 observed that the absence of arbitrary power is the first postulate of +ule o! aw. The modern concept of +ule o! aw is fairly wide. This concept was developed by &nternational Commission of Jurists. This concept implies that the function of government in 19 # 7he onstitution o2 =ndia, 19 #1 196 # S #1 ## 19/ - S ## #/ 19 S ##99 #- 199 # S 6/
the society should be so exercised as to create conditions in which the dignity of man as an individual is upheld. 2uring the last few years the +upreme Court of &ndia has developed some fine principles of third world urisprudence. This could be seen by the extension of the -ule of 8aw to the poor and the downtrodden the ignorant and the illiterate who form the bul) of humanity in &ndia. This ruling was provided by the court in response to a letter drawing attention to unustified and illegal detention of certain prisoners in ail for almost two to three decades in the case of Geena +eth v. +tate of 4ihar (/ The Courts in &ndia have established -ule of 8aw society. The public administration has effectively implemented rule of law. Today the administrative process has grown so much that we are not governed but administered. The negative side of it is that respect for law degenerates into legalism which from its very rigidity wor)s as an inury to the nation. (0
#ature and $co%e of Administrative Law: The concerns of administrative law are general in nature and can arise in connection with the administration of any public program. While it is necessary to acDuire an understanding of the administrative legal and policy contexts within which Duestions about for example procedural fairness abuse of discretion and the interpretation of the legislation arise the focus of administrative laws not a detailed study of the law of particular programs. Courses on labour relations land use planning securities broadcasting and communications human rights and immigration for example fulfil this function. &n order to determine the nature and sco%e of t"e administrative law it is imperative to )now what it deals with. Administrative law deals with the structure powers and functions of the organs of
administration the limits of their powers and functions the methods and procedures followed by them in exercising their powers and functions the methods by which their powers are controlled including the legal remedies available to a person against them when his rights are infringed by their operation. This statement has four lim&s.
# 19!# # S !/. #6 http:>>www.%anupat'a2ast.co%>a'ticles>PopOpen$'ticle.aspxD=0612&a2? !c!?-!6!?&?&99/9e9dae!txtsea'chSu&4ect:N#$d%inist'ati*eN#Law
The first deals with composition and powers of organs of administration. This sphere properly belongs to constitutional law. The second refers to the limits on the powers of the administrative authorities. The t"ird refers to the procedures used in exercising those powers. The study of administrative law of to;day see)s to emphasi!e not only the extraneous control but also the processes and procedures which the administrative authorities themselves follow in the exercise of their powers. 9volving of fair procedures is a way of minimi!ing the abuse of vast discretionary powers conferred on the administration. The fourt" refers to the control of the administration through udicial and other means. This is very important. The administrative %rocess has always existed in every country of the world but this process received great significance during '(t" centur and so was the case with Administrative Law. Administrative Law was in existence in some countries but with the expansion in
public administration it was noticed as a subect of study. Masse )*++,: - B has summed up the
scope of administrative law in this way %the study of
administrative law is not an end in itself but a means to an end. The focal point of this law is the reconciliation of power with liberty. The paradox of twentiet" centur in the form of government is the prolific growth in the powers of the state which on the one hand is necessary for the promotion of the human liberty and freedom but on the other hand threatens to endanger individual freedom. Therefore the main tas) of administrative law is to maintain an ideal eDuilibrium between the powers of the administration and dictates of the individual liberty. The scope of administrative law can be narrated as under7 #.
The methods and procedures of these administrative organs are also studied by this new branch of law.
(.
&t covers the nature of structure powers and functions of all these administrative organs.
*.
&t also ma)es available all the relevant remedies to the persons whose rights are infringed by the operations of these organs during the course of administration.
,.
Why and how administrative organs are to be controlled is also viewed by administrative law.
Administrative law specifies the rights and liabilities of private individuals in their dealings with public officials and also specifies the procedures by which those rights and liabilities can be enforced by those private individuals. &t provides accountability and responsibility in the administrative functioning. Also there are specified laws and rules and regulations that guide and direct the internal administration relations li)e hierarchy division of labor etc
