Administrative Law

UNIT – I
Definition of administrative law -Nature and
Scope of Administrative Law –the impact and
implications of the doctrine of Separation of
powers and Rule of law on administrative law –
Classification of Administration Action – the
necessity.
 Introduction
• 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.
 Definitions
• Austin has defined administrative Law. As the law, which determines the ends and
modes to which the sovereign power shall be exercised.
• 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.”
• Prof. Wade administrative law is concerned with the operation and control of the
powers of administrative authorities with emphasis on functions rather than on
structure.
• Prof. Hart. Broadly conceived administrative law includes law that controls the
administrative authorities of a government.
• Jennings has defined Administrative Law as “the law relating to the administration.
It determines the organization, powers and duties of administrative authorities
 Nature and Scope of Administrative Law
• It is not codified law
• It is branch of public law and primarily deals with government and its instrumentalities
• It is wider than the specific codified laws
• Administrative law is essentially judge made law
• Administrative law relates to individual rights, public needs and ensures transparent,
openness, and honest government.
• Administrative law deals with the organization powers and functions of administrative and
guasi administrative agencies
• Administrative law includes the control mechanism by which administrative authorities are
kept within their boundaries
• Administrative law must be subordinate and consistent with constitutional law
• The main object of administrative law is to maintain a balance between the power and liberty
• It also covers the remedies to public against administrative agencies in case of rights of public
are infringed.
• It is flexible and functional rather than theoretical
• It is a study of multifarious powers of administrative authorities.
• Administrative law subordinate to supreme law
• Administrative law provides for the control mechanism on multifarious powers of
administrative authorities
• Administrative law primarily concerns with official action and the procedure by which the
official action is reached.
 Scope of administrative Law

• Establishment, organization and powers of various administrative bodies

• Delegated legislation- rule make power of authorities
• Quasi judicial functions of administrative authorities
• Procedural guarantees i.e. natural principles of justice
• Remedies available to victims against authorities in case of breach or rights
• Liabilities of government and its instrumentalities in case of breach of
contract and commission of tort
• Public corporations
Differences between the constitutional and administrative law
 Reasons for the Growth of Administrative Law
• There is a radical change in the philosophy as to the role played by the
State.
• To meet Emergency Situations
• Urbanization
• The judicial system proved inadequate to decide and settle all types of
disputes
• The legislative process was also inadequate.
• There is scope for experiments in administrative process
• The administrative authorities can avoid technicalities.
• Administrative authorities can take preventive measures,
• Constitutional goals
 Rule of Law
Introduction
The concept of Rule of Law is that the state is governed, not by the ruler or the
nominated representatives of the people but by the law A country that enshrines the
rule of law would be one where in the Grundnorm1 of the country, or the basic and
core law from which all other law derives its authority is the supreme authority of
the state. The monarch or the representatives of the republic are governed by the
laws derived out of the Grundnorm and their powers are limited by the law. The
King is not the law but the law is king
The concept of Rule of law is of old origin and is an ancient ideal. It was discussed by
ancient Greek philosophers such as Plato and Aristotle around 350 BC.
 Historical Evolution of Rule of Law

•Sir Edward Coke, chief justice of England during the time of King James-I, he criticized the

concept king can do no wrong.

•Albert Venn Dicey; English jurisprudence, developed the concept of rule of law, by

criticizing the Droit Administratiff existed in France.

•He wrote a book in 1885 called the law of the Constitution

 Droit Administratiff

•Nepoleon bonaparte was the founder of the Droit administratiff

•It means body of rules which determine the organisation powers and duties of public
administration and regulate the relation of the administration with the citizen of the country.
•Structure of the droit administratiff
Existence of two sets of laws i.e. Public Law and Private Law
Existence of two sets of adjudicative systems i.e. administrative tribunals and courts
Protection of government servants
Public law was very liberal and administered by administrative tribunals and procedure
followed by the tribunals was very flexible.
The highest administrative tribunal was Counseil D’Etat
Tribunal des conflict was an adjudicative mechanism in case of any conflict of
jurisdiction between the two system of courts
 Basic principles of Rule of Law

Absolute supremacy of law

Equality before law
Predominance of Legal Spirit
Exclude the arbitrary and discretionary power from executive
Judicial Review

Observance of Natural Principles of Justice

Speedy trail

Fair and just procedure

 Constitution and rule of law

Preamble of the Indian constitution

Part III of Indian constitution
•Right to Equality (Article 14-18)
•Right to Freedom (Article 19-22)
•Right against Exploitation (Article 23-24)
•Right to Freedom of Religion (Article 25-28)
•Cultural and Educational Rights (Article 29-30)
•Right to Constitutional Remedies (Article 32)
Part IV of the Indian constitution

Article 299 and 300

Article 311

Independent judiciary art 124 and 217

 Constitution and rule of law

ADM Jabalpur v. Shivkanth Shukla , in which the issue in front of the court
was ‘whether there was any Rule of Law in India apart from Article 21?’. This
was with reference to suspension of the rights of the citizens under Articles
14,19 and 21 of the Indian Constitution, during the proclamation of
emergency. The 5 judges bench by the majority of 4:1, answered the issue in
negative.

However, Justice H.R. Khanna Even in absence of Article 21 in the

Constitution, the state has got no power to deprive a person of his life and liberty
without the authority of law. Without such sanctity of life and liberty, the
distinction between a lawless society and one governed by laws would cease to
have any meaning…Rule of Law is now the accepted norm of all civilized
societies
 Constitution and rule of law

Shankari Prasad v. Union of India , in which the question of ‘whether the

fundamental rights can be amended?” arose. The question was not decided
with full satisfaction and the same came up in a number of cases. This issue
was finally settled in the case Kesavananda Bharti v. State of Kerala , in
which the honorable court declared the Rule of Law as the basic structure of
the constitution. The court also held that the parliament could amend any
article in the constitution except the basic structure. There was a limitation put
on the powers to amend under Article 368, imposed by the rule of law. The
court reiterated the same in the case of Indira Nehru Gandhi v. Raj Narayan
 Constitution and rule of law

In the case of Chief settlement Commr; Punjab v. Om Prakash, the

supreme court held that one of the most prominent feature of the Rule of Law
prevalent in India, is the authority given to the courts to determine the legal
standard of the decision taken by the administrative. Any administrative or
executive action which fails to meet the given standard will be set aside by the
court.

The Supreme Court observed in Som Raj v. State of Haryana, that the
primary postulate of Rule of Law upon which the whole constitutional edifice
is dependant is the absence of arbitrary power. Discretion being exercised
without any rule is a concept which is antithesis of the concept.
 Constitution and rule of law

Another aspect of the Rule of Law is the independence of Judiciary and the
power of judicial review. The court in the case of Union of India v. Raghubir
Singh, held that the lives of the people and the State functions are governed by
the decisions taken by the superior courts. Judicial Review plays a significant
role in maintaining law and order in the working of the government. Hence,
any provision that intends to curtail this power of the court would be held to be
against the principle of Rule of Law. The case of S.P. Sampath Kumar
v.Union of India ,the court gave a similar judgment declaring Judicial Review
as a part of the basic structure of the constitution.
 Advantages/ merits of rule of law

It is controlling instrument over the executive

It keeps the administrative authorities within their sphere
Doctrine honors the customs and conventions of the country

It also provide freedom to th judiciary to control the executive if they exceed

their jurisdiction and power

Most of the commonwealth countries adopted the same

 Criticisms of rule of law

Fails to distinguish arbitrary and discretionary powers

Mere court review could not effectively control the maladministration
He forgot that in England king/queen has most privileges

He did not give priority to administrative tribunals

 WHAT IS SEPARATION OF POWERS?

• This concept was first seen in the works of Aristotle, in the

4th century BCE, wherein he described the three agencies of
the government as General Assembly, Public Officials and
Judiciary.
• In the Ancient Roman Republic too, a similar concept was
followed.
• In modern times, it was 18th-century French philosopher
Montesquieu who made the doctrine a highly systematic and
scientific one, in his book Esprit des lois (The Spirit of
Laws).
• His work is based on an understanding of the English system
which was showing a propensity towards a greater
distinction between the three organs of government.
• The idea was developed further by John Locke.
 PURPOSE AND MEANING

Purpose of the Separation

• The purpose of separation of powers is to prevent abuse of power by a single person
or a group of individuals. It will guard the society against the arbitrary, irrational and
tyrannical powers of the state, safeguard freedom for all and allocate each function
to the suitable organs of the state for effective discharge of their respective duties.
Meaning of Separation of Powers
• Separation of powers divides the mechanism of governance into three branches i.e.
Legislature, Executive and the Judiciary. Although different authors give different
definitions, in general, we can frame three features of this doctrine.
• Each organ should have different persons in capacity, i.e., a person with a function in
one organ should not be a part of another organ.
• One organ should not interfere in the functioning of the other organs.
• One organ should not exercise a function of another organ (they should stick to their
mandate only).
• Thus, these broad spheres are determined, but in a complex country like India there
often arises conflict and transgression by one branch over the other.
 BACKGROUND

• The term “separation of powers” or “trias –politica “ was initiated by

Charles de Montesquieu. For the very first time, it was accepted by Greece
and then it was widespread use by the Roman Republic as the Constitution
of the Roman Republic. Its root is traceable in Aristotle and Plato when
this doctrine became the segment of their marvels. In 16th and 17th-century
British politician Locke and Justice Bodin, a French philosopher also
expressed their opinion regarding this doctrine. Montesquieu was the first
one who articulated this principle scientifically, accurately and systemically
in his book “ Esprit des Lois” (The Spirit Of Laws) which was published
in the year 1785.
 SIGNIFICANCE OF THE DOCTRINE

Significance of the doctrine

• Why do we need a separation of powers between the various
organs of the State? Whenever there is a concentration of power
in one centre/authority, there is bound to be greater chances of
maladministration, corruption, nepotism and abuse of power. This
principle ensures that autocracy does not creep into a democratic
system. It protects citizens from arbitrary rule. Hence, the
importance of the Separation of Powers doctrine can be summed
up as follows:
• Keeps away autocracy
• Safeguards individual liberty
• Helps to create an efficient administration
• Judiciary’s independence is maintained
• Prevents the legislature from enacting arbitrary or
unconstitutional laws
 Provisions that Substantiate Separation of Power

• Article 53(1) and Article 154 of the Indian Constitution clearly say that the Executive powers of the Union
and the States are vest in the President and Governor respectively and shall only be exercised directly by
him or through his subordinate officers.
• Article 122 and Article 212 of the Indian Constitution state that the courts cannot inquire in the proceedings
of Parliament and the State Legislature. This ensures that there will be no interference of the judiciary in the
legislature.
• Article 105 and Article 194 of the Indian Constitution specify that the MPs and MLAs cannot be called by
the court for whatever they speak in the session.
• Article 50 of the Indian Constitution encourages the separation of judiciary from the executive in the states.
• Article 245 of the Indian Constitution gives authority to Parliament and State Legislature for making laws
for the whole country and the states respectively.
• Article 121 and Article 211 of the Indian Constitution state that the judicial conduct of any judge of the
Supreme Court or High Court shall not be discussed in Parliament or State Legislature.
• Article 361 of the Indian Constitution specifies that the President and the Governor are not accountable to
any court for exercising their powers and performance of duties in his office.
 Overlapping Provisions

• Article 123 of the Indian Constitution allows the President to issue ordinance when both the houses are not in session.
• Article 213 of the Indian Constitution gives power to the Governor to issue ordinance when state legislative assembly is not
in session.
• Article 356 of the Indian Constitution lays the provision of Presidential Rule in case of state emergency.
• Article 73 of the Indian Constitution specifies that the powers of the executive shall be co-extensive with that of the
legislature.
• Article 74 of the Indian Constitution states that the council of ministers shall aid the President in the exercise of his executive
functions.
• Article 75(3) of the Indian Constitution makes the Council of Ministers collectively responsible to the House of the People.
• Article 61 of the Indian Constitution lays the provision of Impeachment of the President by passing a resolution from both the
houses in order to remove the President.
• Article 66 of the Indian Constitution states that the election of Vice-President is done by the electoral members of both the
houses.
• Article 145 of the Indian Constitution allows the Supreme Court to make laws with approval of the President for the court
proceedings and the practices.
• Article 146 of the Indian Constitution lays the provisions for the appointment of the servants and officers of the Supreme
Court by the Chief Justice of India with consultation from President and the Union Public Service Commission.
• Article 229 of the Indian Constitution lays the provision for the appointment of the servants and officers of the High Courts
with the consultation of the Governor and the State Public Service Commission.
• Article 124 of the Indian Constitution gives the President the power to appoint the judges of the Supreme Court.
• Article 72 of the Indian Constitution empowers President to grant a pardon or suspend the sentence of any person who is
convicted by the Supreme Court of India.
• Article 32, Article 226 and Article 136 of the Indian Constitution provide the power of judicial review to the Supreme Court
to strike down any law made by the Parliament or any administrative action which is found to be unconstitutional.
 Judicial Approach towards Separation of Power in India

• In Ram Jawaya v. State of Punjab

C.J. Mukerjee, said and held: “Indian Constitution has not indeed recognized
the doctrine of separation of powers in its absolute rigidity but the functions
of the different parts or branches of the government have been sufficiently
differentiated and consequently it can be very well said that our constitution
does not contemplate assumption by one organ or part of the State of
Functions that essentially belong to another.
• In Indira Nehru Gandhi v. Raj Narain
C.J. Ray said and held: “In the Indian constitution there is separation of
powers in a broad sense only. A rigid separation of powers as under the US
constitution or as under Australian constitution does not apply to India.”
• J. Beg added: “Separation of powers is the part of the basic structure of
constitution. None of the three separate organs of the republic can take
over the functions assigned to the other. This scheme of the constitution
cannot be changed even by restoring to Article-368 of the constitution.”
 Judicial Approach towards Separation of Power in India

• In Golak Nath v. State of Punjab

• it was observed by Subba Rao C.J. that:-
• “ The three organs of the government have to exercise their functions keeping in
mind certain encroachments assigned by the constitution. The constitution
demarcates the jurisdiction of the three organs minutely and expects them to be
exercised within their respective powers without overstepping their limits. All the
organs must function within the spheres allotted to them by the constitution. No
authority which is created by the constitution is supreme. The constitution of India
is sovereign and all the authorities must function under the supreme law of the land
i.e. the Constitution.”
• Das J. talked about separation of powers in the case of A. K. Gopalan v. State of
Madras:-
• “ Although the constitution has imposed some limitations on the three organs of the
government, it has left our parliament and state legislature supreme in their
respective fields. In the main, subject to the limitations, our constitution has
preferred the supremacy of legislature to that of the judiciary and the court has no
authority to question the wisdom or policy of the law duly made by the appropriate
legislature and this is the basic fact which the court must not outlook.”
 Judicial Approach towards Separation of Power in India

• In Asif Hameed v. State of Jammu and Kashmir, the Supreme Court observed
that:-
• “ Though the constitution has not recognized the doctrine of separation of powers in
its absolute rigidity, the drafters of the constitution have diligently defined the
powers and functions of various organs. The legislature, executive and judiciary
have to function within their own domain prescribed by the constitution. No organ
may arrogate the functions allotted to another.”
 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:
• Rule-making action or quasi-legislative action.
• Rule-decision action or quasi-judicial action.
• Rule-application action or administrative action.
• Ministerial action