Updated: Dec 30, 2020
Administrative law deals with law relating to administration. It is the basic foundation of administration. To Holland and Maitland administrative law is part of Constitutional law. The general Principles relating to the organisation, powers and functions of "the organs ofthe State, namely Legislative, Executive and Judicial) and their relationship are, inter alia,dealt with, in the Constitution.Administrative law determines the organisation powers andfunctions of the Administrative authorities. (Wade & Philips). It includes the matters relating to civil services, public departments, -public corporations, local authorities and other statutory bodies exercising quasi-Judicial functions and the law governing Judicial review of administrative actions. ject As Jennings rightly points out ,the subject matter of administrative law is "Public Administration". Garner's definition is specific. Administrative law is
i) a study of institutions and administrative process ,
ii) the sources of governmental legal powers,
iii) provisions or methods to deal with persons, grievances & appropriate remedies,
iv) the public corporations and v) administration of local government & general principles applicable to local authorities.
Ch. 1.2 : Nature & Scope :
Administrative law mainly deals with the powers & duties of administrative authorities, and the various remedies available to affected persons. Under welfare state, there is a tremendous increase in state activities in keeping with the techonological & scientificdevelopments. As Roland says "before the days of the Automobile,there was no need for policeman to direct traffic", because there was no traffic! With the increase in State activities, grew the necessity to exercise powers: the administrative & executive powers were enlarged,delegated legislation also developed in the form of rules, regulations bye-laws, notifications etc. Administrative Tribunals started exercising Judicial functions to resolve disputes. The Administrative authorities are empowered with discretionary powers. If these are properly used, there will be the welfare state,.
If abused there will be totalitarian state (Lord Dennings).Hence, administrative law defines and demarcates these powers and also provides for remedies to the affected persons, when
there is abuse. This exercise of considerable power, is the main cause for growthof administrative law. The trend is to reconcile freedom & Justice of persons, with the necessities of implementing social & economic policies.
In this regard, liberty & personal freedoms are to be safeguarded within the frame work of the constitution of India. In this context, Judicial review of administrative action, prevention of mis-use or abuse of power and provisions for suitable remedies form the basic principles of administrative law. It is true to say with Bernard Schwartz, that "the goal ofadministrative law is to ensure that the individual and the state are placed on a plane of equality before the Bar of Justice".
Ch. 1.3. Reasons for growth and, development:
Many reasons account for the sudden growth of administrative law. The main reasons are :-
i) The age-old laissez faire, gave way to a positive policy under welfare state to perform many duties & functions by the state.
ii) Legislative processes were rigid and could not be changed, except by amendment by the Legislature. Under delegated legislation executive started making rules, regulations, bye-laws etc, thus it gave flexibility.
iii) As judicial system was extensive, slow, complex and over burdened the speedy methods of disposal of disputes got recognition as people found them to be quick, in-expensive and
useful. This led to the constitution and working of a large number of Tribunals and quasi judicial bodies.
iv)The evolving system of administrative law was more "functional" It was not theoretical
or technical or legalistic and hence administrative authorities could solve complex problems.
v) The administrative bodies or authorities started taking preventive measure in suitable circumstances, e.g. in licensing, fixing of minimum wages, rate fixing etc. Thus, it was better for Authorities to take measures to prevent adulteration of food, rather than allowing adulteration by the wrong-doer, to be sued later by the affected-persons.
vi) Authorities took effective step to enforce the measures and suspend, or cancel licenses, or in suitable cases destroy articles i.e. narcotic drugs etc, of course following principles of natural Justice.
These were the main reasons that gave impetus to administrative law to grow fast, especially during the present century.
Ch : 1.4. Historical sketch of the growth of Administrative Law:
i) England:According to Dicey "In England, we know nothing of administrative
law and we wish to know nothing about it".
Though Dicey had much disregard, Maitland and others were of the view that administrative discretion and administrative justice had already made their way in to England. Of course, Dicey changed his view, and, later admitted that Parliament had conferred quasi-Judicial authority on administrative bodies and hence, there was administrative law-operating.
Dicey : Explain the French "Droit Administratiff (Administrative law) and, compared it, with the "Rule of Law Concept" of England. In his masterpiece "Introduction to the study of the Law of the constitution" "he gave a brilliant explosition to the concept of' Rule of Law'
and contrasted that with the Administrative Law of France, and in this exercise administrative Law' became insignificant. Robson's book on Justice and Adm. law port's book on" Administrative Law", made the study of this subject more interesting in England.
Apart from these developments Lord Hewert's book 'New Despotism' exposed the dangers of delegated legislation and forced the British Govt. to appoint the Donoghmore committee which suggested inter alia, to set up a select Committee on statutory Instruments. This committee published its report in 1932. Allens book 'Law & Order' (1945) was a critical appraisal of the executive exercise of power. Besides, statutory Instruments Act (1946) and the Crown Proceedings Act 1947 gave the individual, better protection against the arbitrariness of the Executive. Abuse of executive power is another aspect. The "Crichel Down" affair, forced the Govt, to appoint the Franks committee in 1955, and, on the basis of this "The Tribunals and Inquiries Act" was passed in 1958. This deals with the procedures to be followed by every administrative body or agency.
ii) U.S.A. :-
Though the origin of administrative law in the USA can be traced 1789, still it is with the passing of the commerce Act" of 1877, that it took a definite shape. Authoritative writings like Franks Comparative Administrative law (1911), Fraud's Case book on Administrative
law gave much impetus. A special Committee appointed in 1933, Report of Roscoe
Pound (1933) & Attorney General's Committee Report 1939, paved the way for the enactment of Administrative Procedures Act 1946. The rules and the procedures provided for in this Act, should invariably followed by all administrative agencies and bodies, as
otherwise the act of the agency will be quashed as ultra vires
by the courts in the U.S.
iii) India :-
Historically it may be possible to trace the existence of and the application of Administrative law to ancient India, and to the concept of Dharma. The king and the administrators followed Dharma which was more comprehensive than Rule of law. During the period of the East India Company and later under British regime many Acts, were made to increase governmental power. The modern system started with Stage Carriage Act 1861, under which the system of granting license was initiated.
Then followed a series of enactments to enlarge the powers of the Executive, authorities : Bombay Fort Trust Act (1879), The Opium Act (1878), The Explosives Act 1884 The Arms Act (1878) The Dramatic public performance Act 1876. Companies Act 1850 etc.
The era of judicial control started with the establishment of Supreme Court at Calcutta, Bombay, & Madras. Many enactments in the field of health, Labour, Public safety, and morality, Transportation and communication, Defence of India., etc, were made in the present century until 1947 when India became Independent. Modern system :- The modern system of Admistrative Law started with the inauguration of the Constitution of India, and, the establishment of
the Supreme Court at New-Delhi- The philosophy of welfare state envisaged in the constitution, ushered in, new dimensions of growth in the social, economic and political fields. The ownership and control of material resources of the society should be so distributed as best to sub- serve the common good of the community and the economic distribution should not result in concentration of wealth in the hands of a few individuals
(Art 39 of the constitution), became the objective of Welfare State. Since independence, a large number of enactments have been made: New administrative Agencies and bodies have been brought into existence In addition a number of Administrative Tribunals
have been established. Provisions are made in the Constitution (Act 32 & 226) empowering the Supreme Court and the High Courts in India to issue writs, as-Constitutional remedies.
This is the effective part of Judicial control of administrative action in India. The recognition of Public Interest Litigation (PIL) by the Supreme Court in the judges Transfer case (1981), BandhanaMukthi-Morcha This is the effective part of Judicial control of administrative action in India.
The recognition of Public Interest Litigation (PIL) by theSupreme Court in the judges Transfer case (1981), BandhanaMukthi-Morcha Case (1984), Hawala case etc added a new dimension and since then PIL is gaining ground, as a process of participative Justice. Administrative Law in India has grown considerably during these decades in the fields of delegated legislation. Rule of Law. AdministrativeTribunals, Judicial control of administrative actions andremedies, Liability of the Government, Public Corporation.- Ombudsman Of course Lokpal Bill for decades has remained a Bill,and even in 2012 it may not see the light of the day.! A strong political will is required to bring the Lokpal as a powerful institutional Authority to deal with corruption, and the Lokpal Bill 2011 ,now before the Parliament defines a Lokpal ‘As from the commencement of this Act, there shall be established, for the purpose of making inquiries in respect of complaints made under this Act, an institution to be called the “Lokpal’.
The objective is stated thus: to provide for the establishment of the institution of Lokpal to inquire into allegations of corruption against certain public functionaries and for matters connected therewith or incidental thereto. It is gratifying to note in many States in India, Lokyukta Institution is effectively and efficiently operating and the credit goes to allthose officers who have honestly and sincerely discharging their functions. With all thesedevelopments, Administrative law has grown considerably & is recognised as an independent branch for study and is distinguished from Constitutional Law.