(..1..)

INTRODUCTION TO ADMINISTRATIVE LAW

Table of Contents

QUESTION BANK

Q.1. Define Administrative Law. Explain fully the nature and scope of Administrative Law?

Q.2. Define Administrative Law. Discuss fully the reasons for growth of Administrative Law in India?

Q.3. Define Administrative Law. Discuss fully its sources in India.

Q.4. “Administrative Law has been characterised as an outstanding legal development of the 20^th century”. Explain.

Q.5. Define “Administrative Law” and examine the view that Administrative Law is the product of Welfare State.

Q.6. How do you distinguish Administrative Law from Constitutional Law? Do you agree that administrative law is a separate subject of study?

Q.7. Explain the origin and development of Administrative Law.

Q.8. Write full dressed note on functions of the modern State.

Q.9. Define Administrative Law. State the need of Administrative Law and reasons for its growth.

Q.10. Discuss about the functions about the modern state in the current scenario.

SHORT NOTES

1) What are the functions of Modern Welfare State?

2) Define ‘State as regulator of Private interest”.

SYNOPSIS

INTRODUCTION-

Who are the administrators?

II DEFINITION, NATURE AND SCOPE OF ADMINISTRATIVE LAW

Ivory Jennings: –
Wade: –
Griffith and Street: –

In Conclusion:-

III. THE NEED OF ADMINISTRATIVE LAW: REASONS FOR GROWTH OF ADMINISTRATIVE LAW:-

1) The modern concept of welfare State:-

2) The inadequacy of ordinary judicial system:-

3) The inadequacy of legislative process:-

4) Flexibility and Experimentation: –

5) Technicalities can be avoided: –

6) Preventive Measures: –

7) Effective steps for enforcement of preventive measures:

8) State as regulator of private interest.

9) State as provider of services.

10) Undertake relief and welfare activities.

IV] SOURCES OF ADMINISTRATIVE LAW: –

Judicial Decisions:-
Statutes:-
Reports of committees:-
Rules and regulations framed by the government departmental manuals, circulars etc.: –
Administrative practice.
Constitution:-
CONSTITUTIONAL LAW AND ADMINISTRATIVE LAW: –
First view:-No difference between Constitutional law and Administrative Law: –
Second view:-Constitutional law and Administrative Law differ:-
HISTORY/DEVELOPMENT AND GROWTH OF ADMINISTRATIVE LAW.
a) In England: –
b) In America:- c) In India: –

I. INTRODUCTION:-

Today, the State[1] is not merely a ‘Police State’ (i.e. the function of which is to maintain law and order within the State and to protect its citizens from external aggression). However, today’s ‘State’ is a progressive democratic State called ‘Welfare State.[2]’. It seeks to ensure social security and social welfare for individuals, regulate industrial relations, exercise control over the production, manufacture and distribution of essential commodities, start many enterprises, provide jobs, try to achieve equality for all and ensure equal pay for equal work, protects poor, children, women from exploitation, provides education, looks after slum dwellers, their health etc. It looks after the health and morals of the people, provides education to children and takes all the steps social justice demands. All these developments have widened the governmental (i.e. administrative) functions of the State manifold and, ultimately, the scope and ambit of administrative law. The ‘administrative authorities[3]’ are also known as ‘executive[4]’ or ‘governmental officials[5]’.

Who are the administrators[6]?

In India, the President is the executive head. He has to act on the aid and advice of the Prime Minister and other Ministers. So the President, Prime Minister, and other Ministers are the Union Executives[7] (administrators). The State’s Governor, Chief Minister, and other Ministers are the State executives. All Govt. officers, collectors, Police and all Govt. Departments perform administrative functions. Besides them, local Governments (or statutory authorities) like Municipal Corporations, Municipal Boards, District Councils, Village Panchayats, Zilla Parishad, and Panchayat Samitis, perform administrative functions. Similarly, other authorities like universities, statutory corporations, e.g., Indian Oil Corporation, Damodhar Valley Corporation, and other statutory bodies, like the University Grant Commission, are, for example, called administrators.

II. DEFINITION, NATURE AND SCOPE OF ADMINISTRATIVE LAW[8]:-

No single definition is sufficient to study the nature and scope of Administrative Law; therefore, we will study some of the following definitions.

1). Ivory Jennings:-

“Administrative Law is the law relating to administration. It determines the organisation, power and duties of the administrative authorities.[9]”.

2) Wade: –

‘Administrative Law is the law relating to the control of governmental powers.[10]’.

According to him, the primary purpose of administrative law is to keep the government’s powers within legal bounds and protect citizens against abuse.

3) Griffith and Street:-

According to Griffith and Street, the main object of Administrative Law is the operation and control of administrative authorities. It must deal with the following questions.

What power does the administration exercise[11]?

(2) What are the limits of these powers[12]?

(3) What are the ways in which the administration is kept within those limits[13]?

(4) What are the procedures to be followed by the administrative authorities to exercise their powers[14]?

(5) What are the remedies available to a person affected by arbitrary administrative action?[15]

In Conclusion: –

Administrative law deals with the structure, powers and functions of the organs of the administration. It lays down the limits of their powers, determines the methods and procedures to be followed by them in the exercise of their powers and functions, and the methods by which their powers are controlled, including legal remedies available to a person against administrative action when his rights are infringed.[16] by their operation. In other words, Administrative Law is the law relating to administration.

III. THE NEED FOR ADMINISTRATIVE LAW[17]: – REASONS FOR THE GROWTH OF ADMINISTRATIVE LAW[18]: –

Following are some of the important factors responsible for the rapid growth of State activities and, therefore, Administrative Law. (i.e. Administrative functions of the State): –

1) Modern concept of the Welfare State[19]:-

The negative policy of maintaining law and order and protecting citizens from external aggression has been given up by today’s State. Similarly, the concept of “Lassies- Faire” (i.e. minimum interference in individual’s activities) (for further details, see the note at the end of this topic) has also been given up in today’s time by the State. Today’s State is a ‘Welfare State’. It adopts a positive policy and undertakes to perform various welfare functions.

2) The inadequacy of the ordinary judicial system[20]: –

The court’s traditional, ordinary judicial system has proved inadequate for deciding and settling all types of disputes. Litigation in the ordinary court is dilatory and expensive. Even very important matters, e.g., disputes between employers and employees, lockouts, strikes, etc., could not be disposed of speedily by ordinary courts. Moreover, ordinary courts are not technical experts in various fields. Therefore, Industrial Tribunals and Labour Courts were established, which possessed the techniques and expertise to handle these complex problems.

3) The inadequacy of the legislative process[21]:-

Modern legislatures are overburdened with work. They do not have the time, technique, or expertise to provide detailed legislation to meet complex socio-economic problems. Even when the legislature made the detailed provision, they were found to be defective and inadequate, e.g., rate fixing. Therefore, it was felt necessary to delegate[22] some legislative powers to the administrative authority.

4) Flexibility and Experimentation[23]: –

There is scope for experimentation in the administrative process. Unlike the rigid and lengthy legislative process for making and cancellation (repealing) laws, administrators can make a rule, try for some time, and if found defective, can be altered or modified within a short time. Thus, legislation is rigid, while the administrative procedure is flexible.

5) Technicalities can be avoided[24]: –

The traditional judiciary is conservative, rigid and technical. Therefore, the courts cannot decide the cases without formality and technicality.

In The State Finance Corporation V/s. J. Oil Mill[25]s

Supreme Court held that: – Strict rules of evidence and procedure do not bind Administrative Tribunals, and they can take a realistic view of the matters to decide complex problems.

6) Preventive Measures[26]: –

Administrative authorities can take preventive measures, such as licensing, rate fixing, etc. Unlike regular courts of law, they do not wait for parties to come before them with disputes. In many cases, adopting preventive measures proves more effective and valuable than punishing someone after committing a crime.

7) Effective steps for enforcement of preventive measures[27]: –

Administrative authorities can take effective steps to enforce the aforesaid preventive measures, e.g. suspension, revocation and cancellation of licenses, destruction of contaminated articles, etc. These remedies are not generally available through regular courts of law.

8) State as the regulator of private interest[28].

In today’s State, no indefinite private interest is granted. The Constitution itself permits even reasonable restrictions on fundamental rights. Today’s State has to reconcile private interest with social interest. Directive principles laid down in Part IV of the constitution require the State to protect social interest even at the cost of private interest. Therefore, the ‘right of property’ was shifted from fundamental rights to a mere civil right, permitting the State to acquire property for social development purposes such as the erection.[29] dams, canals, roads, railway lines, etc. Abolishing Zamindari and the Land Ceiling Act are examples of reconciling private interest with social interest. In these ways, the State regulates private interests.

[For more details, refer to the topic ‘Fundamental Right and Directive Principles’ in Notes on Constitution.]

9) State as a provider of services[30].

Today’s State is more concerned with providing services to the people. Many governments worldwide have fallen on the ground of increasing unemployment. No State can develop without providing services to the people. It has to create jobs by starting work, like the construction of highways, Canals, Dams, etc. The state establishes big industries and companies to create jobs.

10) Undertake relief and welfare activities[31].

In times of natural calamities like flood, famine, and drought, the earth quick.[32] The State has to carry out relief and rescue operations, providing food, shelter, clothing, medicines, etc.

IV. SOURCES OF ADMINISTRATIVE LAW[33]: –

The following are the main sources of Administrative Law:

1) Judicial Decisions[34]: –

The bulk of Administrative Law in India is judge-made law. Various court decisions relating to Administrative Law form the basis of Administrative Law. However, owing to the lack of codification of Administrative Law in India, various court decisions have created great uncertainty.

2) Statutes[35]: –

Various statutes have been passed in several countries, codifying various aspects of Administrative Law, e.g. Administrative Procedure Act of 1946 in the U.S. The Rules Publication Act, 1893 in England etc. Unfortunately, in India, no codification of Administrative Law has yet been made.

3) Reports of committees[36]: –

Reports of the various committees form an important source of Administrative Law, e.g., the Committee’s Report on Subordinates, Legislation, Committee Report on public undertaking, etc., in India.

4) Rules and regulations framed by the government departmental manuals, circulars, etc.[37]: –

Rules and regulations framed by the Government, orders, schemes, departmental manuals, circulars, governmental resolutions and the like are also important sources of Administrative Law in India and other countries.

5) Administrative practice[38]:-

The administrative practice followed by various administrative bodies and authorities forms an important source of Administrative Law in India.

6) Constitution[39]: –

The Constitution is one of the important sources of Administrative Law (discussed below).

V. CONSTITUTIONAL LAW AND ADMINISTRATIVE LAW[40]: –

There are two contrary views on the difference between constitutional and administrative law: Viz.

1) First view: – No difference between Constitutional law and Administrative Law[41]:-

According to this view, until recently, Administrative Law was dealt with and discussed in Constitutional law books, and no separate treatment was given to it. Both Constitutional law and Administrative Law are concerned with the functions of the Government, and both are parts of public law (i.e., law relating to government). The sources of both are the same. According to Keith, it is logically impossible to distinguish Administrative Law from Constitutional Law, and all attempts to do so are artificial.

2) The second view: – Constitutional law and Administrative Law differ[42]: –

According to Mitland, while Constitutional Law deals with the structure and the border rules that regulate the functions, details of the functions are left to Administrative Law. According to Hood Philips – “Constitutional Law is concerned with the organisation and functions of the government at rest (i.e. in theory) whilst Administrative Law is concerned in motion (i.e. in practice). However, the English and American authors believe that the distinction between Constitutional Law and Administrative Law is one of degree, convenience and custom rather than of logic and principle. In India, constitutional law is written; however, Administrative Law is not written, i.e. customary.

Indian constitution is the most detailed and widest constitution in the world. It lays down the general principles relating to the organisation and power of the legislature, executive and judiciary and their functions with each other and towards citizens. Administrative law, however, is that part of constitutional law that deals in detail with the powers and functions of administrative authorities, including civil services, public departments, local authorities, and other statutory bodies.

VI. HISTORY/ DEVELOPMENT AND GROWTH OF ADMINISTRATIVE LAW[43]:-

a) In England:-

Unless until the advent of the 20^th century, the existence of Administrative Law as a separate branch of law was not accepted. This was due to Dicey’s prevalence of the ‘Rule of Law’ concept. Dicey and his ‘Rule of Law” concept greatly impacted the British mind. According to him, the ‘Rule of Law[44]’ and ‘Administrative Discretion[45]’ are concepts against each other. It is because administrative law confers discretion upon administrators, whereas the rule of law presupposes a lack of[46] discretion. He, therefore, exclaimed in 1885, “In England, we know nothing of Administrative Law, and we wish to know nothing about it.[47].” However, even at the time of Dicey, the administrative discretion and justice system were very good in England. Even some followers of Dicey, like Lord Hewart, has, in 1935, remarked that ‘Administrative Law’ is a ‘continental jargon.[48].’

However, some scholars like Griffith and Street were conscious of the growth of Administrative Law in England. According to them, the study of Administrative Law in England suffered greatly because of Dicey’s conservative approach. In 1929, the Committee on Minister’s Powers headed by Lord Donoughmore was appointed to study and suggest measures on the existing administrative system in England. According to the recommendations of the Committee, the British Parliament passed the Statutory Instruments Act of 1946, making provision for the publication of subordinate legislation. Accordingly, in 1947, the British Parliament passed the Crown Proceeding Act, which made the Government liable to pay damages in case of Tort and breach of Contract. The Act proved to be a ‘death knell[49]’ to the famous English doctrine that the ‘king can do no wrong.’ This improvement considerably expanded the scope of Administrative Law in England. In 1959, the British Parliament passed the Tribunals and Inquiries Act to control and supervise administrative decisions, making them applicable to the regular judiciary.

b) In America: –

Administrative Law in America has been in existence since the 18^th century when the first Federal Administrative Law was embodied in statute. But it is in a true sense after the passing of the Inter-State Commerce Act of 1877 that the rapid growth of Administrative Law started in America. As per ‘Roscoe Pound Committee’s report, the Administrative Procedure Act 1946 was passed dealing with all administrative aspects.

c) In India:-

Administrative law has existed in India since ancient times. Under the rule of the Mauryas and Guptas, even several centuries prior to Jesus Christ, a well-organised and centralised administration system existed in India. The officers and kings accepted the principles of fair play and natural law under the rule of ‘Dharma’ and ‘Raj-Dharma.’ Yet, no administrative law existed in the sense that we study it today.

In a true sense, the growth of Administrative Law in India started after the establishment of British Rule by the East India Company. The British Government passed various statutes for India, regulating public safety, health, morality, transport, labour relations, etc. The practice of granting a licence began with the State Carriage Act of 1861. The Bombay Port Trust Act of 1879 established the first public corporation. Delegated legislation was accepted from the Northern India Canal and Drainage Act of 1884.

After independence, the activities and functions of the Government increased by many folds. Therefore, social security legislation like the Industrial Disputes Act of 1947 and the Minimum Wages Act of 1948 were passed. The Indian Constitution accepts the concept of a welfare State by providing social, political, and economic justice and equality of status and opportunity. To achieve these objectives, the Parliament passed various statutes, e.g. the Industrial (Development and Regulation) Act, 1951; the Requisitioning and Acquisition of Immovable Property Act, 1952; the Essential Commodities Act, 1955 etc. Even while interpreting[50] these statutes, the judiciary started considering the objects and ideas of social welfare. Thus,

In Vellukunne.V/s.Reserve Bank of India[51]

Supreme Court Held: – that under the Banking Companies Act 1949, the Reserve Bank Of India was the sole judge to decide whether the affairs of a banking company were being conducted in a manner prejudicial to the depositor’s interest.

Note-

Laissez faire-

The term ‘laissez-faire’ is a French term. It means “let them do”, “let them do as their will”, or “leave it alone”. It is an economic environment in which transactions between private parties are free from tariffs, government subsidies, and enforced monopolies, with minimal necessary government control that is sufficient to protect property rights against theft and aggression. In fact, it is also taken as the practice or doctrine of non-interference in the affairs of others, especially with reference to individual conduct or freedom of action.

It is considered non-interference in other states’ internal affairs or actions in international relations.

*****

[1] The word ‘State’ used here means a ‘nation’, having its definite territory, population, Government and Sovereignty e.g. India, China, America, Britain, Nepal, Singapore etc. पोलिसां प्रमाणे कामे करने म्हणजे देशातर्गत शांतता व सुव्यवस्था ठेवने व बाहेरील हमल्यापासून देशवासियांचे संरक्षण करने.s[एक पुलिसकर्मी के रूप में कार्य करने का अर्थ है देश के भीतर शांति और व्यवस्था बनाए रखना और देशवासियों को बाहरी हमलों से बचाना।]

[2] कल्याणकारी राज्य [लोक हितकारी राज्य]

[3] राज्यकारभार करणारे अधिकारी [शियासी अधिकार]

[4] कार्यकारी/प्रशासक

[5] शासकीय अधिकारी [सरकारी अधिकारि]

[6] प्रशासक म्हणजे कोण? [प्रशासक कौन है?]

[7] प्रशासक म्हणजे कोण? [प्रशासक याने कौन है?]

[8] प्रशासकीय कायदा – व्याख्या, स्वरुप, व्याप्ती [प्रशासनिक कानून – परिभाषा, प्रकृति, कार्यक्षेत्र]

[9] प्रशासकीय कायदा म्हणजे असा कायदा की जो राज्य सरकारासंबंधी असतो की, ज्यामध्ये प्रशासकीय अधिकाऱ्यांची रचना, अधिकार व कर्तव्य ठरविलेले असतात. [प्रशासनिक कानून एक कानून है जो सरकार से संबंधित है और जो प्रशासनिक अधिकारियों की संरचना, शक्तियों और कर्तव्यों को परिभाषित करता है।]

[10] सरकारी अधिकाऱ्यांचे /अधिकारांचे नियमन करणारा कायदा म्हणजे प्रषासकीय कायदा

[11] षासकीय अधिकाऱ्यांस कोणते अधिकार असतात? [सरकारी अधिकारियों के पास क्या शक्तियाँ हैं?]

[12] त्या अधिकाऱ्यांवर कोणत्या मर्यादा असतात? [उन अधिकारियों की क्या सीमाएं हैं?]

[13] कोणत्या मार्गांनी प्रषासनास त्यांच्या अधिकाराच्या मर्यादीत ठेवता येईल? [किस तरह से प्रशासन को उनके अधिकार की सीमा के भीतर रखा जा सकता है?]

[14] त्यांचे अधिकार वापरताना शासकीय अधिकाऱ्यांनी कोणती प्रक्रिया पाळणे आवष्यक आहे? [अपनी शक्तियों का प्रयोग करते समय सरकारी अधिकारियों द्वारा पालन की जाने वाली प्रक्रिया क्या है?]

[15] (4) According to M.P. Jain-. ‘‘Administrative Law deals with the structure, powers and functions of the organs of administration, the limits of their powers, the methods and procedures followed by them in exercising their powers and functions, the methods by which their powers are controlled including the legal remedies available to a person against them when his rights are infringed by their operation.” शासकीय अधिकाऱ्यांने त्याच्या सत्तेचा/अधिकाराचा गैरवापर करता एखादया व्यक्तींना नुकसान केल्यास त्या व्यक्तीस काय उपाय उपलब्ध आहेत? [यदि कोई सरकारी अधिकारी अपनी शक्ति/प्राधिकार का दुरुपयोग करता है और किसी व्यक्ति को नुकसान पहुंचाता है, तो उसके लिए क्या उपाय उपलब्ध हैं?]

[16] हिरावून घेणे

[17] प्रशासकीय कायदयाची गरज [प्रशासनिक कानून की आवश्यकता]

[18] प्रषासकीय कायदयाच्या विकासाची कारणे [प्रशासनिक कानून के विकास के कारण]

[19] कल्याणकारी राज्याची/राश्ट्राची आधुनिक संकल्पना [कल्याणकारी राज्य/राष्ट्र की आधुनिक अवधारणा]

[20] न्यायदान पद्धतीतील उणीवा [न्याय प्रणाली में कमियाँ]

[21] कायदे करणाऱ्यांच्या पध्द्तीतील उणीवा [कानून निर्माण के पद्धती में कमियां]

[22] बहाल करणे/हस्तांतर करणे [प्रदान करना/स्थानांतरित करना]

[23] लवचिकता आणि प्रयोग [लचीलापन और प्रयोग

[24] तांत्रिक बाबी टाळता येऊ शकतात [तकनीकी दिक्कतों से बचा जा सकता है]

[25] [AIR 2002 SC.834]

[26] प्रतिबंधात्मक उपाय [निवारक उपाय]

[27] प्रतिबंधात्मक उपायांची अंमलबजावणी करण्यासाठी प्रभावी उपाय [निवारक उपायों को लागू करने के लिए प्रभावी उपाय]

[28] व्यक्तीगत हिताचे सरकारव्दारे नियमन [सरकार द्वारा निजी हितों का विनियमन]

[29] उभारणे [खड़ा करना]

[30] सरकारव्दारे सेवांचा पुरवठा [सरकार द्वारा सेवाओं की आपूर्ति]

[31] कल्याणकारी योजना व मदत हाती घेणे [कल्याणकारी योजनाओं और सहायता का उपक्रम करे]

[32] नैसर्गिक आपत्ती, पूर, दुश्काळ, भूकंप इ [प्राकृतिक आपदा, बाढ़, सूखा, भूकंप आदि]

[33] प्रषासकीय कायदयाची उगमस्थाने [प्रशासनिक कानून के स्रोत]

[34] न्यायालयाचे निर्णय/निकाल [कोर्ट के फैसले/फैसले]

[35] कायदे [कानून]

[36] समित्यांचे अहवाल [समितियों की रिपोर्ट]

[37] सरकारी खात्याची परिपत्रके, पुस्तिका याव्दारे निष्चित केलेले नियम [सरकारी विभागों के परिपत्रों, नियमावली द्वारा निर्धारित नियम]

[38] प्रषासकीय प्रथा [प्रशासनिक रीति]

[39] राज्यघटना [संविधान]

[40] घटनात्मक/संविधानात्मक कायदा आणि प्रषासकीय कायदा [संवैधानिक/संवैधानिक कानून और प्रशासनिक कानून]

[41] प्राथमिक दृश्टीकोन – घटनात्मक कायदा व प्रषासकीय कायदा यामध्ये तफावत नाही [प्राथमिक दृष्टिकोण – संवैधानिक कानून और प्रशासनिक कानून में कोई अंतर नहीं है]

[42] दुसरा दृश्टीकोन – घटनात्मक कायदा व प्रषासकीय कायदा भिन्न-भिन्न आहेत, [एक अन्य दृष्टिकोण – संवैधानिक कानून और प्रशासनिक कानून अलग-अलग हैं]

[43] प्रषासकीय कायदयाचा इतिहास/पाष्र्वभूमी आणि भरभराट/ [प्रशासनिक कानून का इतिहास/पृष्ठभूमि और विकास/]

[44] ‘कायदयाचे राज्य’ [‘कानून का शासन]

[45] प्रशासकीय विषेश अधिकार [प्रशासनिक विशेष शक्तियां]

[46] अभाव [की कमी]

[47] इंग्लंडमध्ये आम्हाला प्रषासकीय कायदयाबद्दल काहीही माहिती नाही व आम्हाला ती जाणून घेण्याची इच्छासुध्दा नाही [इंग्लैंड में हम प्रशासनिक कानून के बारे में कुछ नहीं जानते हैं और न ही हम इसे जानना चाहते हैं]

[48] युरोप मधील ठराविक वर्गातील संकल्पना/भाषा [यूरोप में कुछ वर्ग की अवधारणाएँ/भाषाएँ]

[49] मृत्यूची घंटा [मृत्यू घंटा]

[50] अर्थ लावणे [व्याख्या करना]

[51] AIR 1962 SC 1371

In State of Gujrat V/s. M. Haider Bux. (AIR 1975 SC 1404. )

Supreme Court Held:- that under the provisions of the Land Acquisition Act, 1894, ordinarily, the Government is the best authority to decide whether a particular purpose is a public purpose or not and whether for that purpose, property is to be acquired or not.