growing importance of administrative law and the role of judiciary in administrative action

7/29/2019 Growing Importance of Administrative Law and the Role of Judiciary in Administrative Action

1/47

SUBJECT:TEACHING METHODS AND RESEARCH METHODOLOGY

PROJECT WORK ON THE TOPIC:

GROWING IMPORTANCE OF ADMINISTRATIVE LAW AND

THE ROLE OF JUDICIARY IN ADMINISTRATIVE ACTION

SUBMISSION TO:

PROFESSOR P.V. RAO

SUBMITTED BY:

PARUL PRASAD

1ST YEAR, LL.M

ROLL NUMBER - 2012-28

AT:

NALSAR UNIVERSITY OF LAW, HYDERABAD

DATE OF SUBMISSION:

01-10-2012


2/47

PREFACE

I am extremely grateful to my professor, Mr. P.V. RAO for his support for the project, frominitial guidance in the early stages of conceptual inception, and through ongoing advice and

encouragement to this day. He has been instrumental in conceptualization of this study.

I would also like to extend my heartfelt regards and gratitude to the Library Staff and all

those contributors whose names have not been mentioned here.


3/47

CONTENTS

HYPOTHESIS ............................................................................................................................................ 4

WHAT IS ADMINISTRATIVE LAW? ........................................................................................................... 5

NATURE AND SCOPE OF ADMINISTRATIVE LAW .................................................................................... 8

ADMINISTRATIVE LAW AND RULE OF LAW ARE COMPLIMENTARY ..................................................... 11

HISTORICAL GROWTH AND DEVELOPMENT OF ADMINISTRATIVE LAW .............................................. 13

RELATION OF ADMINISTRATIVE LAW WITH CONSTITUTIONAL LAW ................................................... 17

SOURCES OF ADMINISTRATIVE LAW IN INDIA ...................................................................................... 22

IMPORTANCE OF ADMINISTRATIVE LAW IS GROWING-REASONS ....................................................... 24

CLASSIFICATION OF ADMINISTRATIVE FUNCTIONS .............................................................................. 27

JUDICIAL CONTROL OF ADMINISTRATIVE ACTION ............................................................................... 31

ROLE OF WRITS IN THE ADMINISTRATIVE LAW .................................................................................... 33

JUDICIAL REVIEW OF ADMINISTRATIVE ACTION .................................................................................. 39

SUGGESTED FORM OF ADMINISTRATIVE LAW FOR INDIA ................................................................... 42

CONCLUSION ......................................................................................................................................... 44

SELECT BIBLIOGRAPHY .......................................................................................................................... 47


4/47

HYPOTHESIS

Administrative law regulates agency rulemaking, adjudication, enforcement, and

transparency. It specifies the legal status of agencies and administrators and provides forexternal review by legislatures and courts. Administrative law is the fundamental regulatory

law of public administration. In democracies it will promote public participation in agency

rulemaking, representation of stakeholders and other interested parties, representativeness,

transparency, fundamental fairness, effective supervision of administrative operations, and

other democratic values.

In democracies, administrative law will emphasize the importance of representativeness,

participation, responsiveness, transparency, and fairness in administration.

In doing this project I have used doctrinal method of research. I have analyses the reasons for

the growth and development of Administrative Law and role of judiciary over Administrative

actions. It addresses the application of administrative law to rulemaking, adjudication,

enforcement, transparency, and the external review of agency actions.


5/47

1

WHAT IS ADMINISTRATIVE LAW?

Administrative Law refers to the set of laws and rules that govern the actions of the Executiveagencies of the government.

According to Sir Ivor Jennings, "administrative law is the law relating to the administrative

authorities". This is the most widely accepted definition of Administrative Law.

According to K. C. Davis, "Administrative law as the law concerns the powers and

procedures of administrative agencies, including especially the law governing judicial review

of administrative action".

According to Jain and Jain, "Administrative law deals with the structure, powers and functionof the organs of administration, the limits of their powers, the methods and procedures

followed by them in exercising their powers and functions, the method by which their powers

are controlled including the legal remedies available to a person against them when his rights

are infringed by their operation".

The Indian Institution of Law has defined Administrative Law in the following words;

Administrative Law deals with the structure, powers and functions of organs of

administration, the method and procedures followed by them in exercising their powers and

functions, the method by which they are controlled and the remedies which are available to a

person against them when his rights are infringed by their operation.

From early 19th century to todays era the functions of the administration has increased

manifold leading to a transformation in the meaning of the term administrative Law in

accordance with the changes in the society. Administrative Law can be said to be the most

remarkable development of the 20th Century. 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 three main stages led to the expansion of the meaning of the term Administrative law:

Laissez Faire:

The theory of laissez-faire works on the following principles- Minimum control of government Free enterprise Law and order not counted as subjects of state Power said to be concentrated in the hands of the individual

Dogma of Collectivism:The principle of collectivism evolved which said that the state and individuals shall work in

proper synchronization. The state had proper control over the actions of the individuals and

the state also stood up to take the responsibility forthe individuals life .liberty and property.

Social-Welfare State:


6/47

The Dogma of collectivism gave birth to the beginning of a social-welfare state. India is a

socialistic republic as the Preamble of the Constitution articulates. The social welfare state

thrives on the principle of providing justice of all kinds be it social, economic or political and

all laws and actions of the government to be taken keeping in mind the interests of the

citizens. The Constitution envisions at establishing an egalitarian society.

From Laissezfaire to a social welfare state the meaning and definition of administrative law

has developed tremendously. After turning into a social-welfare state the function of state has

shifted from setting the parameters or for deciding the administrative functions to following

the principles of natural justice and reasonableness. Administrative Law today is an all-

pervading feature existing in almost all parts of the society and its functions.

In the field of law, the most significant and outstanding development of the 20th century is

the rapid growth of administrative law. In this century, the philosophy as to the role and

function of the state has undergone a radical change. There was increase in governmental

functions. Administrative Law now includes:

1. The powers and functions of the administrative and quasi-administrative agencies.2. The procedures these powers to be exercised, prescribed and reviewed.

3. The review by individuals and how the aggrieved persons whose powers have been abused

and can seek a remedy.

Today, the state is not merely a police state, exercising sovereign functions, (protecting the

population from external aggression and from internal strife and for this collecting taxes from

the people) but as a progressive democratic welfare state, it seeks to ensure social security

and social welfare for the common man, regulates the industrial relations exercises control

over production manufacture and distribution of essential commodities; starts many

enterprises, tries to achieve equality for all and equal pay for equal work. (Ref. Directive

Principles of state policy enumerated in the constitution of India) Today, the state is required

to look after the health, and morals of people, provide education to children and takes all the

steps which social justice demands. All these developments have widened the scope and

ambit of administrative law.

Administrative Law is related to public administration. It is the law that controls the

government power. It is concerned with the legal forms and constitutional status of public

authority, with the powers and duty and the procedure followed in exercising them. The

primary purpose of administrative law, therefore, is to restrict the powers of the Government

within their legal limits or bounds so as to protect the citizens against any abuse of power by

governmental machineries.

Rule of law disapproves exercise of arbitrariness on the part of the government. The

significant achievement in the sphere of rule of law is judicial review of administrative action

to ascertain that the executive acts within the four corners of law. While deciding various

cases, the Supreme Court of India has upheld the importance of rule of law in serving the

needs of people without violating their rights.

Administrative Law is an individuals interface with the State and its instrumentalities. Due

to radical change in the philosophy regarding the role and function of the State (from laissez

faire to welfare), the opportunities of interaction with administration have increased manifold

and continue to increase further. The situation is such that administrative actions impinge onevery aspect of an individuals life nowadays. Due to unprecedented rise in state intervention


7/47

in an individuals life, the possibility of accumulation of uncontrolled power and arbitrariness

in its exercise too has increased. This in turn has started adversely affecting legal rights

granted to an individual by the law. Therefore, administrative law has been systematically

developed as an instrument to ensure that the powers entrusted or delegated to the

administrative authorities are exercised strictly in accordance with the law. It deals with legal

framework governing public administration and develops the principles to controladministrative power to avoid arbitrariness. Recent growth of international administrative

process has added new dimension to the study of administrative law.


8/47

2

NATURE AND SCOPE OF ADMINISTRATIVE LAW

Administrative law deals with the powers of the administrative authorities. It deals with the

manner in which the powers are exercised and the remedies which are available to the

aggrieved persons, when those powers are abused by the authorities. As discussed above, the

administrative process has come to stay and it has to be accepted as necessary evil in all

progressive societies, particularly n welfare state, where many schemes for the progress of

the society are prepared and administered by the government. The execution and

implementation of this programme may adversely affect the rights of the citizens. The actual

problem is to reconcile social welfare with the rights of the individual subjects. As has been

rightly observed by Lord Denning; Properly exercised the new powers of the executive lead

to the Welfare State; but abused they lead to Totalitarian State. The main object of the study

of administrative law is to unravel the way in which these administrative authorities could bekept within their limits so that the discretionary powers may not be turned into arbitrary

powers.

Administrative Law as a law is limited to concerning powers and procedures of

administrative agencies. It is limited to the powers of adjudication or rule-making power of

the authorities. Thus, it is limited to:

Establishment, organization and powers of various administrative bodies Delegated legislation - the Rule-making power of the authorities Judicial functions of administrative agencies such as tribunals Remedies available such as Writs, Injunction etc. Procedural guarantees such as the application of principles of Natural Justice Government liability in tort Public corporations

Firstly, Administrative Law is a branch of Public Law which deals with the contradistinction

with private law which deals with the relationships of individuals inter se.

Secondly, It deals with the organisation and powers of administrative and quasi

administrative agencies and but also quasi administrative agencies like Public Sector

undertakings

Thirdly, Administrative Law includes the study of the existing principles and also of the

development of certain new principles which administrative and quasi-administrativeagencies follow while exercising their powers. One of the main thrusts of the study of

Administrative Law is on the procedure by which official action is reached If the means

(procedure) are not trustworthy, the end cannot be just.

Fourthly, Administrative law includes within its study the control mechanism by which the

administrative agencies are kept within the bounds and made in the service of the individuals.

This control mechanism is technically called the review process or appeal process. An

administrative action may be controlled by:

Courts exercising writ jurisdiction through the writs of Hebeas Corpus, mandamus,certiorari, Prohibition and Quo Warranto

Courts exercising ordinary judicial powers through suits, injunctions and declaratoryactions

Higher administrative authorities


9/47

The institutions of ombudsman and other investigative agencies such as VigilanceCommissions also exercise control on administrative action. Role of public enquiries

in this regard, is also significant.

Right to know, right to reply and discretion to disobey also have inherentpotentialities of providing effective , though indirect, in providing check on

administrative behaviour

Administrative Law is a new branch of law that deals with the powers of the Administrative

authorities, the manner in which powers are exercised and the remedies which are available

to the aggrieved persons, when those powers are abused by administrative authorities. The

Administrative process has come to stay and it has to be accepted as a necessary evil in all

progressive societies. Particularly in welfare state, where many schemes for the progress of

the society are prepared and administered by the government. The execution and

implementation of these programmes may adversely affect the rights of the citizens. The

actual problem is to reconcile social welfare with rights of the individual subjects. The main

object of the study of Administrative law is to unravel the way in which these Administrative

authorities could be kept within their limits so that the discretionary powers may not beturned into arbitrary powers.

There are several branches of the science of law. The Administrative Law is a recent branch

of the science of law. In the political science there are few Administrative organs. Certain

functions have been allotted to these organs in the Administrative Machinery. The

Administrative law deals with the structure, functions and powers of the Administrative

organs. It also lays down the methods and procedures which are to be followed by them

during the course of remedies which are available to the persons whose rights and other

privileges are damaged by their operations. From the few lines above explaining the meaning

of the Administrative law, we can notice the exact scope of this new branch of Law. The

scope of Administrative law can be narrated as under:-

The methods and procedures of these Administrative organs are also studied by thisnew branch of law.

It covers the nature of structure, powers and functions of all these administrativeorgans.

It also makes available all the relevant remedies to the persons whose rights areinfringed by the operations of these organs during the course of Administration.

Why and How the Administrative Organs are to be controlled is also viewed by theAdministrative law.

In this way along with the development in the Political Science and along with the idea of

federal Administration, the separate branch of Administrative law has been developed. It is tobe clearly noted that this branch of Law is exclusively restricted to the Administrative organs

only. The delegated legislations are supposed to be the backbone of the Administrative law.

Thus Administrative law can be said to be science of power of Administrative authorities.

In view of above discussion we can derive at the following conclusions so far as nature and

scope of administrative law is concerned: -

The administrative law has growing importance and interest and the administrativelaw is the most outstanding phenomena in the welfare state of today. Knowledge of

administrative law is as important for the officials responsible for carrying on

administration as for the students of law.


10/47

Administrative law is not codified like the Indian Penal code or the law of Contracts.It is based on the constitution. No doubt the Court of Law oversees and ensure that the

law of the land is enforced. However, the very factor of a rapid development and

complexity which gave rise to regulation made specific and complete treatment by

legislation impossible and, instead, made necessary the choice of the body of officers

who could keep abreast of the novelties and intricacies which the problemspresented.

Administrative law is essentially Judge made law. It is a branch of public law ascompared to private law-relations inter-se. Administrative law is an ever-expanding

subject in developing society and is bound to grow in size as well as quality in coming

the decades. We need an efficient regulatory system, which ensures adequate

protection of the peoples Rights.

Principles of administrative law emerge and development whenever any personbecomes victim of arbitrary exercise of public power. Therefore administrative law

deals with relationship individual with power.

The administrative agencies derive their authority from constitutional law andstatutory law. The laws made by such agencies in exercise of the powers conferred on

them also regulate their action. The principle features are: (a) transfer of power by

legislature to administrative authorities, (b) exercise of power by such agencies, and(c) judicial review of administrative decisions.

Administrative law relates to individual rights as well as public needs and ensurestransparent, open and honest governance, which is more people-friendly.

Inadequacy of the traditional Court to respond to new challenges has led to the growthof administrative adjudicatory process. The traditional administration of justice is

technical, expensive and dilatory and is not keeping pace with the dynamics of ever

increasing subject matter. Because of limitation of time, the technical nature of

legislation, the need for flexibility, experimentations and quick action resulted in the

inevitable growth of administrative legislative process.

Administrative law deals with the organization and powers of administrative andpowers quasi-administrative agencies

Administrative law primarily concerns with official action and the procedure bywhich the official action is reached.

Administrative law includes the control mechanism (judicial review) by whichadministrative authorities are kept within bounds and made effective.

Thus, the Administrative Law deals with the structure, power and functions of the various

organs of administration; the methods and procedures followed by them in expressing their

powers and functions; the methods by which they are controlled and the remedies which are

available to a person against them when his rights are infringed by their operation.


11/47

3

ADMINISTRATIVE LAW AND RULE OF LAW ARE COMPLIMENTARY

The basis of Administrative law is the doctrine of The Rule of Law. The Expression Rule

of Law plays an important role in the administrative law. It provides protection to the people

against the arbitrary action of the administrative authorities. The expression rule of law has

been derived from the French phrase la Principle de legality i.e. a government based on the

principles of law. In simple words, the term rule of law, indicates the state of affairs in a

country where, in main, the law rules. Law may be taken to mean mainly a rule or principle

which governs the external actions of the human beings and which is recognized and applied

by the State in the administration of justice.

The concept of rule of law, in modern age, does not oppose the practice of conferring

discretionary powers upon the government but on the other hand emphasizing on spelling out

the manner of their exercise. It also ensures that every man is bound by the ordinary laws of

the land whether he be private citizens or a public officer; that private rights are safeguardedby the ordinary laws of the land.

Thus the rule of law signifies that nobody is deprived of his rights and liberties by an

administrative action; that the administrative authorities perform their functions according to

law and not arbitrarily; that the law of the land are not unconstitutional and oppressive; that

the supremacy of courts is upheld and judicial control of administrative action is fully

secured.

BASIC PRINCIPLES OF RULE OF LAW

Law is Supreme, above everything and everyone. Nobody is the above law. All things should be done according to law and not according to whim No person should be made to suffer except for a distinct breach of law. Absence of arbitrary power being hot and sole of rule of law Equality before law and equal protection of law Discretionary should be exercised within reasonable limits set by law Adequate safeguard against executive abuse of powers Independent and impartial Judiciary Fair and Justice procedure Speedy Trial

RULE OF LAW AND INDIAN CONSTITUTION

The doctrine of Rule of Law has been adopted in Indian Constitution. The ideals of the

Constitution, justice, liberty & equality are enshrined in the preamble.

The Constitution of India has been made the supreme law of the country and other laws are

required to be in conformity with the Constitution. Any law which is found in violation of

any provision of the Constitution is declared invalid.


12/47

Part III of the Constitution of India guarantees the Fundamental Rights. Article 13(l) of the

Constitution makes it clear that all laws in force in the territory of India immediately before

the commencement of the Constitution, in so far as they are inconsistent with the provision of

Part III dealing with the Fundamental Rights, shall, to the extent of such inconsistency, be

void. Article 13(2) provides that the State should not make any law which takes away or

abridges the fundamental rights and any law made in contravention of this clause shall, to theextent of the contravention, be void. The Constitution guarantees equality before law and

equal protection of laws. Article 21 guarantees right to life and personal liberty. It provides

that no person shall be deprived of his life or personal liberty except according to the

procedure established by law. Article 19 (1) (a) guarantees the third principle of rule of law

embodies right of freedom of speech & expression.

Article 19 guarantees six Fundamental Freedoms to the citizens of India -- freedom of speech

and expression, freedom of assembly, freedom to form associations or unions, freedom to live

in any part of the territory of India and freedom of profession, occupation, trade or business.

The right to these freedoms is not absolute, but subject to the reasonable restrictions which

may be imposed by the State.

Article 20(1) provides that no person shall he convicted of any offence except for violation of

a law in force at the time of the commission of the act charged as an offence not be subject to

a penalty greater than that which might have been inflicted tinder the law in for cc at the time

of the commission of the offence. According to Article 20(2), no person shall be prosecuted

and punished for the same offence more than once. Article 20(3) makes it clear that no person

accused of the offence shall be compelled to be witness against himself. In India, Constitution

is supreme and the three organs of the Government viz. Legislature, Executive and judiciary

are subordinate to it. The Constitution provided for encroachment of one organ i.e.: Judiciary

upon another the Legislature if its action is mala fide, as the citizen i.e. an individual can

challenge under Article 32 of the Constitution.

In India, the meaning of rule of law has been much expanded. It is regarded as a part of the

basic structure of the Constitution and, therefore, it cannot be abrogated or destroyed even by

Parliament. It is also regarded as a part of natural justice.

In Kesavanda Bharti vs. State of Kerala Honourable Supreme Court enunciated the rule of

law as one of the most important aspects of the doctrine of basic structure.

In another case Menaka Gandhi vs. Union of India again Honourable Supreme Court declared

that Article 14 strikes against arbitrariness which depicted the importance of the principle ofrule of law.

In Indira Gandhi Nehru vs. Raj Narain13 in which Article 329-A was in question, this

provided certain immunities to the election of office of Prime Minister from judicial review.

The Supreme Court declared Article 329-A as invalid since it abridges the basic structure of

the Constitution.


13/47

3

HISTORICAL GROWTH AND DEVELOPMENT OF ADMINISTRATIVE LAW

1) ENGLANDIn England, by and large, the existence of administrative law as a separate branch of law was

not accepted until the advent of the 20th century. In 1885, Dicey in his famous thesis on rule

of law observed that there was no administrative law in England. He had pronounced to

Robson: In England, we know nothing of administrative law and we wish to know nothing

about it. But while saying this, he ignored the existence of administrative discretion and

administrative justice which were current even in his days. In a large number of statutes

discretionary powers were conferred on the executive authorities and administrative tribunals

which could not be called into question by the ordinary courts of law. But he disregarded

them altogether. It appears that his contemporary Maitland was quite conscious about the trueposition and he observed in 1887: If you take up modern volume of the reports of the

Queens Bench Division, you will find that about half of the cases reported have to do with

rules of administrative law.

In 1914, however, Dicey changed his views. In the last edition of his famous book, Law and

the Constitution, published in 1915, he admitted that during the last 30 years, due to increase

of duties and authority of English officials, some elements of droit had entered in the law of

England. But even then, he did not concede that there was administrative law in England.

However, after two decisions of the House of Lords in Board of Education V. Rice and Local

Government Board V. Arlidge, in his article The Development of Administrative Law in

England he observed: Legislation had conferred a considerable amount of quasi-judicialauthority on the administration which was a considerable step towards the introduction of

administrative law in England.

A observed by Griffith and Street, the study of administrative law had to suffer a lot because

of Diceys conservative approach. Of course, in due course, scholars made conscious efforts

to know the real position. But even to them, the study of administrative law was restricted

only to two aspects, viz. delegated legislation and administrative adjudication.

In 1929, the Committee on Ministers Powers headed by Lord Donoughmore was appointed

by the British Government to exaine the problems of delegated legislation and the judicial

and quasi-judicial powers exercised by the officers appointed by the ministers and to suggest

effective steps and suitable safeguards to ensure the supremacy of the rule of law.

In 1932, the Donoughmore Committee submitted its report and made certain

recommendations with regard to better publication and control of subordinate legislation,

which were accepted by the Parliament by the passage of the Statutory Instruments Act,

1946. In 1947, the Crown Proceedings Act was passed by the British Parliament which made

the government liable to pay damages in cases of tortious and contractual liability of the

Crown.

Thus, the abandonment of the famous doctrine, The King can do no wrong considerablyexpanded the scope of administrative law in England. In 1958, the Tribunals and Inquiries


14/47

Act was passed for the purpose of better control and supervision of administrative decisions,

and the decisions of the administrative authorities and tribunals were made subject to appeal

and supervisory jurisdiction of the regular courts of law.

2) UNITED STATES OF AMERICAAdministrative Law was in existence in America in the 18th century, when the first federal

administrative law was embodied in statute in 1789, but it grew rapidly with the passing of

the Inter-state Commerce Act, 1877. In 1893, Frank Goodnow published a book on

Comparative Administrative Law and in 1905, another book on the Principles of

Administrative law of the United States was published. In 1911, Ernst Freunds Case Book

on Administrative Law was published. The Bench and the Bar also took interest in the study

of administrative law. In his address to the American bar Association in 1946 President Elihu

Root warned the country by saying: There is one special field of law. Development of which

has manifestly become inevitable. We are entering upon the creation of a body of

administrative law, quite different in its machinery, its remedies and its necessary safeguardsfrom the old methods of regulation by specific statutes enforced by the courts. If we

are to continue a Government of limited powers, these agencies of regulation must

themselves be regulated.. Unfortunately, this advice of a wise counsel was ignored by the

leaders of the Bar. The powers of the administrative bodies continued to increase day by day

and they became a Fourth Branch of the Government.

After the New Deal, it was felt necessary to take effective steps in this field. A special

committee was appointed in 1933 which called for greater judicial control over administrative

agencies. After the report of Roscoe Pound Committee of 1938 and Attorney Generals

Committee of 1939, the Administrative Procedure At, 1946 was passed which contained

many provisions relating to the judicial control over administrative actions.

3) INDIAAdministrative law was existent in India even in ancient times. Under the Mauryas and

Guptas, several centuries before Christ, there was well organized centralized administration

in India. The rule of Dharma was observed by kings and administrators and nobody claimed

any exemption from it. The basic principles of natural justice and fair play were followed by

the kings and officers as the administration could be run only on those principles accepted by

Dharma, which was even a wider word than Rule of Law or Due Process of Law. Yet,there was no administrative law in existence in the sense in which we study it today.

With the establishment of East India Company and the advent of the British Rule in India, the

powers of Government had increased. Many Acts, statutes and legislations were passed by

the British Government, regulating public safety, health, morality, transport and labour

relations. The practice of granting administrative licence began with the Stage Carriage Act,

1861. The first public corporation was established under the Bombay Port Trust Act, 1879.

Delegated legislations was accepted by the Northern India Canal and Drainage Act, 1873 and

the Opium Act, 1878. Proper and effective steps were taken to regulate the trade and traffic in

explosives by the Indian Explosives Act, 1884. In many statutes, provisions were made with

regard to holding of permits and licences and for the settlement of disputes by theadministrative authorities and tribunals.


15/47

During the Second World War, the executive powers tremendously increased. Defence of

India Act, 1939 and the Rules made there under conferred ample powers on the executive to

interfere with life, liberty and property of an individual with little or no judicial control over

them. In addition to this, the government issued many orders and ordinances covering several

matters by way of administrative instructions.

Since Independence, the activities and the functions of the government have further

increased. Under the Industrial Disputes Act, 1947, the Minimum Wages Act, 1948, the

Factories Act, 1948 and the Employees State Insurance Act, 1948, important social security

measures have been taken for those employed in industries.

The philosophy of a welfare state has been specifically embodied in the Constitution of India.

In the Constitution itself the provisions are made to secure to all citizens social, economic and

political justice, equality of status and opportunity. The ownership and control of material

resources of the society should be so distributed as best to subserve the common good. The

operation of the economic system should not result in concentration of wealth and means ofproduction. For the implementation of all these objects the state is given power to impose

reasonable restrictions even on the Fundamental Rights guaranteed by the constitution. In

fact, to secure these objects, several steps have been taken by Parliament by passing many

Acts; e.g. the Industrial (Development and Regulation) Act, 1951, the Requisitioning and

Acquisition of Immovable Property Act, 1952, the Essential Commodities Act, 1955, the

Companies Act, 1956, the maternity benefit Act, 1961, the Payment of Bonus Act, 1965, the

Banking Companies (Acquisition and Transfer of Undertakings) Act, 1969, the Equal

Remuneration Act, 1976, the Urban Land (Ceiling and Regulation) Act, 1976, the Beedi

Workers Welfare Fund Act, 1976 etc.

Even while interpreting all these Acts and the provisions of the Constitution, the judiciary

started taking into consideration the objects and ideals of social welfare. Thus, in Vellukunel

v. Reserve Bank of India, the Supreme Court held that under the Banking Companies Act,

1949, the Reserve Bank was the sole judge to decide whether the affairs of a banking

company were conducted in a manner prejudicial to the depositors interest and the Court had

no option but to pass an order of winding up as prayed for by the Reserve Bank. Again, in

State of Andhra Pradesh v. C. V. Rao, dealing with a departmental inquiry, the Supreme

Court held that the jurisdiction to issue a writ of certiorari under Article 226 is supervisory in

nature. It is not an appellate court and if there is some evidence on record on which the

tribunal had passed the order, the said findings cannot be challenged on the ground that the

evidence for the same is insufficient or inadequate. The adequacy or sufficiency of evidenceis within the exclusive jurisdiction of the tribunal. Similar view was taken in K. L. Shinde v.

State of Mysore. In M. P. Srivastava v. Suresh Singh, the Supreme Court observed that in

matters relating to questions regarding adequacy or sufficiency of training, the expert opinion

of the Public Service Commission would be generally accepted by Court. Very recently, in

State of Gujarat v. M. I. Haider Bux, the Supreme Court held that under the provisions of the

land Acquisition Act, 1894, ordinarily, government is the best authority to decide whether a

particular purpose is a public purpose and whether the land can be acquired for that purpose

or not.

Thus, on the one hand, the activities and powers of the government and administrative

authorities have increased and on the other hand, there is greater need for the enforcement ofthe rule of law and judicial review over these powers, so that the citizens should be free to


16/47

enjoy the liberty guaranteed to them by the Constitution. For that purpose, provisions are

made in statutes giving right to appeal, revision, etc. and at the same time extraordinary

remedies are available to them under article 32, 226 and 227 of the Constitution of India. The

principle of judicial review is also accepted in our Constitution and the orders passed by

administrative authorities can be quashed and set aside if they are mala fide or ultra vires the

Act or the provisions of the Constitution. And if rules, regulations or orders passed by theseauthorities are not within their powers, they can be declared ultra vires, unconstitutional,

illegal or void.


17/47

4

RELATION OF ADMINISTRATIVE LAW WITH CONSTITUTIONAL LAW

Administrative law was earlier considered as a part of Constitutional Law. The vast

proliferation of administrative powers developed the Administrative Law as an independent

subject of study requiring a lot of skill and hard work to understand the basic tenets of

governance. There are, however, very wide areas which are of common interest to both

Administrative Law as well as the Constitutional Law; both are concerned with the functions

of Government and both are considered the part of public law. Regarding the distinction

between two systems it has been characterized and correctly as Constitutional law is

concerned with the organization and functions of Government at rest, whilst Administrative

Law is concerned with that organization and those function in motion.

Administrative Law is concerned with day to day affairs of the Government whileconstitutional law concerned with its structure. Therefore, drawing conclusion from this one

could say that the Constitutional Law represents the static aspects; while the Administrative

Law is concerned with dynamic aspect of government, i.e. the Constitutional Law is

concerned with the theoretical set up. More significantly, it is said that Administrative Law is

the law relating to Administration and defies almost any precise definition or limitation. Thus

the Administrative Law covers a wide range of complex activities.

Administrative law essentially deals with location of power and the limitations thereupon.

Since both of these aspects are governed by the constitution, we shall survey the provisions of

the constitution, which act as sources of limitations upon the power of the state. This brief

outline of the Indian constitution will serve the purpose of providing a proper perspective forthe study of administrative law.

The Constitution deals with the organization and structure not only of the centralGovernment but also of the states.

In a federal constitution, Centre-State relationship is a matter of crucial importance.While other federal constitutions have only skeletal provisions on this matter the

Indian Constitution has detailed norms.

The Constitution has reduced to writing many unwritten conventions of the BritishConstitution as for example, the principle of collective responsibility of the Ministers,

parliamentary procedure etc.

There exist various communities and groups in India. To remove mutual distrustamong them, it was felt necessary to include in the Constitution detailed provisions on

Fundamental Rights, safeguards to minorities, Scheduled tribes scheduled castes and

backward classes.

To promote the social welfare concept on which the state of India is to be based. Theconstitution includes Directive Principles of State Policy.

The Constitution contains not only the fundamental principles of governance but alsomany administrative details, such as the provisions regarding citizenship, official

languages, government services, electoral machinery etc. In other constitutions, these

are usually left to be regulated by the ordinary law of the land. The framers of the

Indian Constitution however felt that unless these provisions were contained in the

Constitution, an infant democracy might find itself in difficulties, and the smooth andefficient working of the Constitution and the democratic process in the country might


18/47

be jeopardized. The form of administration has a close relation with the form of the

Constitution and the former must be appropriate to the latter. It is quite possible to

pervert the constitutional mechanism, without changing its form, by merely changing

the form of the administration and making it inconsistent with, and opposed to, the

spirit of the constitution. Since India was emerging as an independent country after a

long spell of foreign rule, the country lacked democratic values. The constitution-makers therefore thought it prudent not to take unnecessary risks, and to incorporate

in the constitution itself the from of administration as well, instead of leaving it to the

legislature, so that the whole mechanism may become viable.

The preamble to the Constitution declares India to be a Sovereign Democratic Republic. The

term Sovereign denotes that India is subject to no externalauthority. The term democratic

signifies that India has a parliamentary from of government, which means a government

responsible to an elected legislature.

The preamble to the Constitution enunciates the great objectives and the socio-economic

goals for the achievement of which the Indian Constitution has been established. These are:to secure to all citizens of India social, economic and political justice; to secure to all Indian

citizens liberty of thought, expression, belief, faith and worship; to secure to them equality of

status and opportunity, and to promote among them fraternity so as to secure the dignity of

the Individual and the unity of the nation. The Indian Constitution has been conceived and

drafted in the mid-twentieth century-an era when the concept of social welfare state is

predominant. It is thus pervaded with the modern outlook regarding the objectives and

functions of the state. It embodies a distinct philosophy of government, and, explicitly

declares that India will be organized as a social welfare state, i.e., a state that renders social

services to the people and promotes their general welfare. In the formulations and

decelerations of the social objectives contained in the preamble, one can clearly discern the

impact of the modern political philosophy, which regards the state as an organ to secure the

good and welfare of the people. This concept of a welfare state is further strengthened by the

Directive Principles of State Policy, which set out the economic, social and political goals of

the Indian constitutional system. These directives confer certain non-justice able rights on the

people, and place the governments under an obligation to achieve and maximize social

welfare and basic social values like education, employment, health etc. In consonance with

the modern beliefs of man, the Indian Constitution sets up a machinery to achieve the goal of

economic democracy along with political democracy, for the latter would be meaningless

without the former in a poor country like India.

India is a country of religions. There exist multifarious religious groups in the country but, inspite of this, the Constitution stands for a secular state of India.. The essential basis of the

Indian Constitution is that all citizens are equal, and that the religion of a citizen is entirely

irrelevant in the matter of his fundamental rights. The Constitution answers equal freedom for

all religions and provide that the religion of the citizen has nothing to do in socio-economic

maters.

The Indian Constitution has a chapter on Fundamental Rights and thus guarantees to the

people certain basic rights and freedoms, such as, inter alia, equal protection of laws, freedom

of speech and expression freedom of worship and religion. Freedom of assembly and

association, freedom to move freely and to reside and settle an where in India, freedom to

follow any occupation, trade or business, freedom of person, freedom against doublejeopardy and against export facto laws. Untouchables, the age-old scourge afflicting the


19/47

Hindu society, have been formally abolished. The people can claim their Fundamental Rights

against the state subject to some restrictions, which the state can impose in the interests of

social control. These restrictions on Fundamental Rights are expressly mentioned in the

Constitution itself and, therefore, these rights can be qualified or a bridged only to the extent

laid down. These rights, in substance, constitute inhibitions on the legislative and executive

organs of the state. No law or executive action infringing a Fundamental Right can beregarded as valid. In this way, the Constitution demarcates an area of individual freedom and

liberty wherein government cannot interfere. The judiciary ensures an effective and speedy

enforcement of these rights. Since the inauguration of the Constitution, many significant legal

battles have been fought in the area of Fundamental Rights and, thus, a mass of interesting

case law has come into being in this area.

The Indian society lacks homogeneity, as there exist differences of religion, language,

culture, etc. There are sections of people who are comparatively weaker than others-

economically, socially and culturally and their lot can be ameliorated only when the state

makes a special effort to that end. Mutual suspicion and distrust exist between various

religious and linguistic groups. To promote a sense of security among the minorities, toameliorate the conditions of the depressed and backward classes, to make them useful

members of society, to weld the diverse elements into one national and political stream, the

Constitution contains a liberal scheme of safeguards to minorities, backward classes and

scheduled castes. Provisions have thus been made, inter alia, to reserve seats in the State

Legislatures and Lok Sabha and to make reservations services, for some of these groups, to

promote the welfare of the depressed and backward classes and to protect the languages and

culture of the minorities.

India has adopted adult suffrage as a basis of elections to the Lok Sabha and the State

Legislative Assemblies. Every citizen, male or female, who has reached the age of 18 years

or over, has a right to vote without any discrimination. It was indeed a very bold step on the

part of the constitution makers to adopt adult suffrage in a country of teeming millions of

illiterate people, but they did so for some very sound reasons. If democracy is to be broad-

based and the system of government is to have the ultimate sanction of the people as a whole,

in a country like India where large masses of people are poor an illiterate, the introduction of

any property or educational qualification for exercising the franchise would have amounted to

a negation of democratic principles. Any such qualification would have disenfranchised a

large number of depressed people. Further, it cannot be assumed that a person with a bare

elementary education is in a better position to exercise the franchise are and choose his

representatives accordingly.

A notable feature of the Constitution is that it accords a dignified and crucial position to the

judiciary. Well-ordered and well-regulated judicial machinery had been introduced in the

country with the Supreme Court at the apex. The jurisdiction of the Supreme Court is very

broadly worded. It is a general court of appeal from the High Court, is the ultimate arbiter in

all-constitutional matters and enjoys an advisory jurisdiction. It can hear appears from any

court or tribunal in the country and can issue writ for enforcing the Fundamental Rights.

There is thus a good deal of truth in the assertion that the highest court in any other

federation. There is a High Court in each State. The High Courts have wide jurisdiction and

have been constituted into important instruments of justice. The most signification aspect of

their jurisdiction is the power to issue writs.


20/47

The judiciary in India has been assigned role to play. It has to dispense justice not only

between one person and another, but also between the state and the citizens. It interprets the

constitution and acts as its protector and guardian by keeping all authorities legislative,

executive, administrative, judicial and quasi-judicial- within bounds. The judiciary is entitled

to scrutinize any governmental action in order to assess whether or to it conforms to the

constitution and the valid laws made there under. The judiciary has powers to protectpeoples Fundamental Rights from any unreasonable encroachment by any organ of the state.

The judiciary supervises the administrative process in the country, and acts as the balance

wheel of federalism by settling disputes between the centre and the states or among the state

inter se.

Indias Constitution is of the federal type. It established a dual polity, a two tiergovernmental

system with the Central Government at one level and the state Governments at the other. The

Constitution marks off the sphere of action of each level of government by devising an

elaborate scheme of distribution of legislative, administrative, and financial powers between

the Centre and the States. A government is entitled to act within its assigned field and cannot

go out of it, or encroach on the field assigned to the other government.

Thus the Constitution of India is having significant effect on laws including

administrative law. It is under this fundamental laws are made and executed, all

governmental authorities and the validity of their functioning adjudged. No legislature can

make a law and no governmental agency can act, contrary to the constitution no act,

executive, legislative, judicial or quasi-judicial, of any administrative agency can stand if

contrary to the constitution. The constitution thus conditions the whole government process

in the country. The judiciary is obligated to see any governmental organ does not violate the

provisions of the constitution. This function of the judiciary entitles it to be called as guardian

of the constitution.

Today in India, the Administrative process has grown so much that it will not be out of place

to say that today we are not governed but administered. It may be pointed out that the

constitutional law deals with fundamentals while administrative with details. The learned

author, Sh. I.P. Messey, has rightly pointed out, whatever may be the arguments and counter

arguments, the fact remains that the administrative law is recognized as separate, independent

branch of legal discipline,. Though, at times, the disciplines of constitutional law and

administrative law may over lap. Further clarifying the point he said the correct position

seems to be that if one draws two circles of administrative law and constitutional law at a

certain place they may over lap and this area may termed as watershed in administrative law.

In India, in the Watershed one can include the whole control mechanism provided in the

constitution for the control of the administrative authorities that is article 32, 226,136,300 and

311. Constitutional Law recognizes administrative law indirectly by envisaging few

administrative bodies like Inter State Council (Art. 263), Union Public Service Commission

(Art. 315) and Election Commission (Art. 329) etc.

CONSTITUTIONAL BACKGROUND OF ADMINISTRATIVE LAW

Administrative authorities are subjected to the control of statutes and judicial decisions. In

India, the administrative and executive acts can be challenged in the following manner:


21/47

Subordinate delegated legislation are expressly brought within the fold of Article 13of the Constitution by defining law as including order bye-law, rule, regulation

notificationhaving the force of law. Thus, the statutory instrument can be

challenged as involved not only on the ground of its being ultra vires, the statute

which confers power to make it but also on the additional ground that it contravenes

any of the fundamental rights contained in Part III of the Constitution of India underArticles 32 and 226.

Even purely administrative action will be void if it contravenes any of thosefundamental rights which constitute limitations against any State action.

An administrative act whether statutory or non-statutory will be void if it violates anyof the mandatory and justifiable provisions of the Constitution. Remedy of violation

of such Constitutional rights is distinct from the violation of fundamental rights and is

simple one.

Through Public Interest Litigation, the High Courts and the Supreme Court canreview any administrative action in broader public interest.


22/47

5

SOURCES OF ADMINISTRATIVE LAW IN INDIA

Administrative law is mainly concerned with powers. It is necessary to examine the sources

of powers before considering in details how power is controlled. The customary divisions of

the sources of legal power are "Common law" and "Statute", so it is with administrative

authority. So far as the Central Government is concerned its common law powers falls under

the Royal Prerogative which however has no relevance to the activities either of local

Government authorities or modern statutory corporations. Which also include ministerial

departments, such as, Housing and Local Government Education. Since the latter are

exclusively the creation of parliament it follows their powers are derived solely from the

same source. In the realm of the Administrative law, the conflict between the parliament and

courts would arise whenever the former seeks to abridge any of the fundamental rights of the

citizens which are justifiable.

There are four principal sources of administrative law in India:-

Constitution of India Acts and Statute Law Ordinances, Administrative directions, notifications and Circulars Judicial decisions

The Constitution of India: It deals with formulation of the executive, the powers of the

executive during peace and emergency times. Administrative law is concerned solely with the

Administrative acts or either the administrator or of quasi judicial bodies. Now the methods

by which such acts are interfered with are by the use of the prerogative or common law writs,

especially by the writs of certiorari, mandamus and prohibitions. These writs are issued only

by the High Courts in England and by the Supreme Court and High Courts in India under

Articles 32 and 226 of the constitution of India. This jurisdiction excludes ordinary courts i.e.

very civil or criminal proceedings in the land, because those proceedings carry with them the

safeguards provided by statute of the appeal, revision and review. Hence, it is clear that these

writs are not available against the judicial proceedings of the courts. The constitution of India

also provides under Article 299 and 300, the contractual and tortious liability of the

government servants.

Acts and Statute Law: It is an exclusive source of Administrative power. The term covers

both Act of parliament and delegated legislation. Act of parliament comprise public general

Acts and private or local Acts. Delegated of Parliament comprise public general Acts

legislation, includes statutory rules and orders. Acts of parliament fall into two categories

which may be conventionally termed constituent Acts and enabling Act, but some Acts deal

with both constitution and power. In short, we can say statues are one of the important

sources of Administrative law.

Ordinances, Administrative directions, notifications and Circulars: Ordinances areissued by the President (at Union / Federal level) and Governor (at State level) and are valid


23/47

for a particular period of time. These ordinances give additional powers to administrators in

order to meet urgent needs. Administrative directions, notifications and circulars provide

additional powers by a higher authority to a lower authority. In some cases, they control the

powers.

Judicial decisions or Judge-made Law: It has been responsible for laying down severalnew principles related to administrative actions. They increased the accountability of

administrative actions and acted as an anchor between the notifications, circulars etc. to be

linked and complied directly or indirectly with the constitutional or statutory provisions.


24/47

6

IMPORTANCE OF ADMINISTRATIVE LAW IS GROWING-REASONS

There are several reasons and factors which are responsible for the rapid growth of

Administrative law in 20th century.

Changed relations of Authorities and Citizens: It can be seen from the present setup of the Administration that relations of the public authorities with the citizens have

been deeply changed. Citizens were not directly involved in the administration in the

earlier days. They were somewhat isolated from the sphere of Administration. There

was a wide gap between the Administrative organs and the then citizens. This is not

the case today. Today in most of the states there is a democratic Administration of

either type. It is therefore, the association of the people is found to be integral. The

citizens are closely associated with the state Administration. In view of these

changing relations, the basic structure of the legal set up needs to be rearranged. The

Administrative law, has therefore, developed.

Origin of Welfare State Concept: During the period of 19th and 20th Century theconcept of state was developed. According to the doctrine of welfare the basic

objective of the State Administration is to achieve maximum Welfare of the masses.

Each and every policy of the state should aim at maximum welfare of the people. It

obviously added to the functions of state. The theory of increasing functions of the

state has been accepted by almost all. Increase in functions of the states created

several problems and complications. It was, therefore, thought necessary to solve theproblems to enact separate Branch of Law and hence the branch known as the

Administrative Law has been developed.

Inadequacy of the Legislations: At present there are several drawbacks in thepresent Legislations. It would have been, therefore, found very difficult to

accommodate the new Administrative machinery in the existing legislations. In order

to meet the expanding needs of changed social, economic characterised problems, the

new branch of law, i.e. Administrative Law was necessary. The legislature had no

time and technique to deal with all the details. It 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 inadequate, e.g., rate fixing. And,therefore, it was felt necessary to delegate some powers to the administrative

authorities.

Inadequacy of Courts: As it is quite known to us that the present courts areoverburdened with the huge work, it is almost impossible for the present set of courts

to solve the ever crowded problems of Administration along with its own. It is

therefore, proposed that there should be separate Branch of Law for the problems of

Administration and hence this new Branch has been developed.

Technical Experts are with Administrative Organs: At present all the technicalexperts are with the Administrative organs. In case it is attempted to shift the legal job


25/47

of Administration to the present judiciary and the present legislations, the same will

be handicapped due to lack of technical knowledge. Thus in order to utilise and use

the talent of the technical experts which are at present with the Administrative organs

it is really wise creating new and coordinating branch of law i.e. Administrative law.

And lastly, we can say that they act as an impartial arbitrator, and hence there is a

need of separate Administrative Law.

Union of Administrative & Judicial Function: As per the Principle of separation ofpowers these organs of Administration have been proposed and created. The

Executive, the Legislative and Judiciary are these three organs which are functioning

separately. But in order to coordinate Administrative Law for Administrative Organs.

The Judicial System Proved Inadequate: To decide and settle all the disputes. Itwas slow, costly inexpert, complex and formalistic. It was already over-burdened, and

it was not possible to expect speedy disposal of even very important matters. e.g.

Disputes between employers and employees, lock-outs, strikes etc. Therefore

industrial tribunals and labour courts were established which possessed the techniquesand experts to handle these complex problems. The judicial system proved inadequate

to decide and settle all types of disputes. It was slow, costly, inexpert, complex and

formalistic. It was already overburdened, and it was not possible to expect speedy

disposal of even very important matters, e.g. disputes between employers and

employees, lockouts, strikes, etc. These burning problems could not be solved merely

by literally interpreting the provisions of any statute, but required consideration of

various other factors and it could not be done by the ordinary courts of law.

Therefore, industrial tribunals and labour courts were established, which possessed

the techniques and expertise to handle these complex problems.

Urbanization - Due to the Industrial Revolution in England and other countries anddue to the emergence of the factory system in our country, people migrated from the

countryside to the urban areas in search of employment in factories and large scale

industries. As a result of which there arose a need for increase in providing housing,

roads, parks, effective drainage system etc. Legislations were enacted to provide all

these basic facilities and accordingly administrative authorities were required to make

rules and regulations, frame schemes for effective infrastructure and facilities which

ultimately lead to the growth of administrative law.

To meet Emergency Situations Enacting legislations, getting assent from thePresident is all a lengthy process, whereas it is very easy and quick to frame schemesand rules for meeting any emergency situations that arise in a locality. Due to the

flexibility of making the rules, obviously there is a constant growth of administrative

law making in the country.

There is scope for experiments in administrative process. Here, unlike 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 lawrepresents functional rather than a theoretical and legalistic approach. The traditional


26/47

judiciary is conservative, rigid and technical. It 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 take a practical view of the

matter to decide complex problems.

Administrative authorities can take preventive measures, e.g. licensing, ratefixing, etc. Unlike regular courts of law, they have not to wait for parties to come

before them with disputes. In many cases, these preventive actions may prove to be

more effective and useful than punishing a person after he has committed a breach of

any provision or law. As Freeman says, "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."

Administrative authorities can take effective steps for enforcement of theaforesaid 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.

Final glance: In recent times a new branch of Administrative Law is emerging, whichis popularly called Global Administrative Law. According to this the WTO is

dictating guidelines on subsidiaries, facilities and services to the people in different

countries. The Banks have also not been spared from the interference of the WTO

guidelines. Thus, it may be submitted, that due to the emerging Global Administrative

Law, in the near future there is every possibility for the necessity to relook into the

reasons for growth of Administrative law.


27/47

7

CLASSIFICATION OF ADMINISTRATIVE FUNCTIONS

There are three organs of the Government the Legislature, the Executive and the Judiciary.The function of the legislature is to enact the law; the executive is to administer the law and

the judiciary is to interpret the law and to declare what the law is. But as observed by the

Supreme Court in Jayantilal Amratlal v. F. N. Rana it cannot be assumed that the legislative

functions are exclusively performed by the legislature, executive functions by the executive

and judicial functions by judiciary.

Today, the executive performs variegated functions, viz. to investigate, to prosecute, to

prepare and to adopt schemes, to issue and cancel licences, (administrative); to make rules,

regulations and bye-laws, to fix prices, (legislative); to adjudicate on disputes, to impose fine

and penalty, etc. (judicial); rule-making (quasi-legislative) and adjudication (quasi-judicial)have become the chief weapons in the administrative armoury.

Generally administrative functions are separated into:

Administrative function. Legislative function. Quasi-legislative function. Judicial function. Quasi-judicial function.

ADMINISTRATIVE FUNCTION

In A.K. Kraipak v. Union of India, the Court was of the view that in order to determine

whether the action of the administrative authority is quasi-judicial or administrative, one has

to see the nature of power conferred, to whom power is given, the framework within which

power is conferred and the consequences.

Therefore, administrative action is the residuary action which is neither legislative nor

judicial. It is concerned with the treatment of a particular situation and is devoid of

generality. It has no procedural obligations of collecting evidence and weighing argument. It

is based on subjective satisfaction where decision is based on policy and expediency. It does

not decide a right though it may affect a right. However, it does not mean that the principlesof natural justice can be ignored completely when the authority is exercising administrative

powers. Unless the statute provides otherwise, a minimum of the principles of natural justice

must always be observed depending on the fact situation of each case. No exhaustive list of

such actions may be drawn; however, a few may be noted for the sake of clarity:

1. Making a reference to a tribunal for adjudication under the Industrial Disputes Act.2. Functions of a selection committee.

Administrative action may be statutory, having the force of law, or non statutory, devoid of

such legal force. The bulk of the administrative action is statutory because a statute or the

Constitution gives it a legal force but in some cases it may be non-statutory, such as issuing

directions to subordinates not having the force of law, but its violation may be visited with


28/47

disciplinary action. Though by and large administrative action is discretionary and is based

on subjective satisfaction, however, the administrative authority must act fairly, impartially

and reasonable.

In Ram Jawaya v. State of Punjab, the Supreme Court observed, It may not be possible to

frame an exhaustive definition of what executive function means and implies. Ordinarily theexecutive power connotes the residue of governmental functions that remain after legislative

and judicial functions are taken away." Thus, administrative functions are those functions

which are neither legislative nor judicial in character. Generally, the following ingredients are

present in administrative functions:

An administrative order is generally based on governmental policy or expediency. In administrative decisions, there is no legal obligation to adopt a judicial approach to

the questions to be decided, and the decisions are usually subjective rather than

objective.

An administrative authority is not bound by the rules of evidence and procedureunless the relevant statute specifically imposes such an obligation.

An administrative authority can take a decision in exercise of a statutory power oreven in the absence of a statutory provision, provided such decision or act does not

contravene provision of any law.

Administrative functions may be delegated and sub-delegated unless there is aspecific bar or prohibition in the statute.

While taking a decision, an administrative authority may not only consider theevidence adduced by the parties to the dispute, but may also use its discretion.

An administrative authority is not always bound by the principles of natural justiceunless the statute casts such duty on the authority, either expressly or by necessary

implication or it is required to act judicially or fairly.

An administrative order may be held to be invalid on the ground of unreasonableness. An administrative action will not become a quasi-judicial action merely because it has

to be performed after forming an opinion as to the existence of any objective fact.

The prerogative writs of certiorari and prohibition are not always available againstadministrative actions.

LEGISLATIVE FUNCTION

Legislative functions of the executive consist of making rules, regulations, bye-laws, etc. A

further distillate of administrative action is ministerial action. Ministerial action is that action

of the administrative agency, which is taken as matter of duty imposed upon it by the lawdevoid of any discretion or judgment. Therefore, a ministerial action involves the

performance of a definitive duty in respect of which there is no choice. Collection of revenue

may be one such ministerial action.

1. Notes and administrative instruction issued in the absence of any2. If administrative instructions are not referable to any statutory authority they cannot

have the effect of taking away rights vested in the person governed by the Act.

It is, no doubt, true that any attempt to draw a distinct line between legislative and

administrative functions is difficult in theory and impossible in practice. Though difficult, it

is necessary that the line must be drawn as different legal rights and consequences ensue. As

Schwartz said, If a particular function is termed legislative or rule-making rather than


29/47

judicial or adjudication, it may have substantial effects upon the parties concerned. If the

function is treated as legislative in nature, there is no right to a notice and hearing unless a

statute expressly requires them. In the leading case of Bates v. Lord Hailsham, Megarry, J.

observed that the rules of natural justice do not run in the sphere of legislation, primary or

delegated. Wade also said, There is no right to be heard before the making of legisl ation,

whether primary or delegated, unless it is provided by statute. Fixation of price, declarationof a place to be a market yard, imposition tax, establishment of Municipal Corporation under

the statutory provision, extension of limits of a town area committee, etc. are held to be

legislative functions.

QUASI-LEGISLATIVE FUNCTION

Legislature is the law-making organ of any state. In some written constitutions, like the

American and Australian Constitutions, the law making power is expressly vested in the

legislature. However, in the Indian Constitution though this power is not so expressly vested

in the legislature, yet the combined effect of Articles 107 to III and 196 to 201 is that the lawmaking power can be exercised for the Union by Parliament and for the States by the

respective State legislatures. It is the intention of the Constitution-makers that those bodies

alone must exercise this law-making power in which this power is vested. But in the

twentieth Century today these legislative bodies cannot give that quality and quantity of laws,

which are required for the efficient functioning of a modern intensive form of government.

Therefore, the delegation of law-making power to the administration is a compulsive

necessity. When any administrative authority exercises the law-making power delegated to it

by the legislature, it is known as the rule-making power delegated to it by the legislature, it is

known as the rule-making action of the administration or quasi-legislative action and

commonly known as delegated legislation. Rule-making action of the administration partakes

all the characteristics, which a normal legislative action possesses. Such characteristics may

be generality, prospectively and a behaviour that bases action on policy consideration and

gives a right or a disability. These characteristics are not without exception. In some cases,

administrative rule-making action may be particularised, retroactive and based on evidence.

JUDICIAL FUNCTION

According to the Committee on Ministers Powers, a pure judicial function presupposes an

existing dispute between two or more parties and it involves four requisites:

The presentation (not necessarily oral) of their case by the parties to the dispute;

If the dispute is a question of fact, the ascertainment of fact by means of evidenceadduced by the parties to the dispute and often with the assistance of argument by or

on behalf of the parties, on evidence;

If the dispute between them is a question of law, the submission of legal argument bythe parties; and

A decision which disposes of the whole matter by finding upon the facts in disputeand an application of the law of the land to the facts found, including, where

required, a ruling upon any disputed question of law.

Thus, these elements are present, the decision is a judicial decision even though it might have

been made by any authority other than a court, e.g. by Minister, Board, Executive Authority,Administrative Officer or Administrative Tribunal.


30/47

QUASI-JUDICIAL FUNCTION

The word quasi means not exactly. Generally, an authority is described as quasi-judicial

when it has some of the attributes or trappings of judicial functions, but not all. Today thebulk of the decisions which affect a private individual come not from courts but from

administrative agencies exercising ad judicatory powers. The reason seems to be that since

administrative decision-making is also a by-product of the intensive form of government; the

traditional judicial system cannot give to the people that quantity of justice, which is required

in a welfare State. Administrative decision-making may be defined, as a power to perform

acts administrative in character, but requiring incidentally some characteristics of judicial

traditions. On the basis of this definition, the following functions of the administration have

been held to be quasi-judicial functions:

Disciplinary proceedings against students. Disciplinary proceedings against an employee for misconduct. Confiscation of goods under the sea Customs Act, 1878. Cancellation, suspension, revocation or refusal to renew license or permit by licensing

authority.

Determination of citizenship. Determination of statutory disputes. Power to continue the detention or seizure of goods beyond a particular period. Refusal to grant no objection certificate Forfeiture of pensions and gratuity. Authority granting or refusing permission for retrenchment. Grant of permit by Regional Transport Authority.

All quasi-judicial decisions essentially have two characteristics in common.

1. Presentation of their case by the parties; and2. The decision on questions of fact by means of evidence adduced by the parties.

However, it is not always true. Firstly, in many cases, the first characteristic is absent and the

authority may decide a matter not between two or more contesting parties but between itself

and another party, e.g. an authority effecting compulsory acquisition of land. Here the

authority itself is one of the parties and yet it decides the matter. It does not represent its case

to any court or authority. Secondly, there may be cases in which no evidence is required to be

taken and yet the authority has to determine the questions of fact after hearing the parties, e.g.

ratemaking or price-fixing. Thirdly, after ascertainment of facts, unlike a regular court, an

authority is not bound to apply the law to the facts so ascertained, and the decision can be

arrived at according to considerations of public policy or administrative discretion, which

factors are unknown to an ordinary court of law.


31/47

8

JUDICIAL CONTROL OF ADMINISTRATIVE ACTION

The exercise of power by the Administrative authorities by itself is not pure evil but gives

much room for misuse. Therefore, remedy lies in tightening the procedure and not in

abolishing the power itself.

JUDICIAL CONTROL OF ADMINISTRATIVE ACTION:

Though courts in India have developed a few effective parameters for the proper exercise of

administrative power, the conspectus of judicial behaviour still remains halting and residual.

Judicial control mechanism of administrative action is exercised at two stages:

Control at the stage of delegation of power - The court exercises control overdelegation of discretionary powers to the administration by adjudicating upon the

constitutionality of the law under which such powers are delegated with reference to

the fundamental rights. Therefore, if the law confers vague and wide discretionary

power on any administrative authority, it may be declared ultra vires Article 14,

Article 19 and other provisions of the Constitution.

Control at the stage of the exercise of pawer - In India there is no AdministrativeProcedure Act providing for judicial review on the exercise of administrative

discretion. The power of judicial review arises from the courts. Courts in India have

developed various formulations to control the exercise of administrative discretion.

These formulations may be conveniently grouped into two broad categories:

o That the authority is deemed not to have exercised its power at allnonapplication of mind - Under this categorization, courts exercise judicial

control over administrative discretion if the authority has either abdicated its

power or has put fetters on its exercise or the jurisdictional facts are either

non-existent or have been wrongly determined. The authority in which

discretion is vested can be compelled to exercise it, but not to exercise it in a

particular manner. When a discretionary power is conferred on an authority,

the said authority must exercise that power after applying its mind to the fact

and circumstances of the case in hand. Thus where the authority abdicates its

power e.g. abdication of functions, acting under dictation, conditionalprecedents, acts mechanically & without due care, imposes fetters on the

exercise of discretion, there is a failure to exercise discretion.

o That the authority has not exercised its power properly abuse ofdiscretion - When discretionary power is conferred on an administrative

authority, it must be exercised according to law. When the mode of exercising

a valid power is improper or unreasonable there is an abuse of the power.

Improper exercise of discretion includes everything which English courts

include in unreasonable exercise of discretion and American courts include

in arbitrary and capricious exercise of discretion. Improper exercise of

discretion includes such things as taking irrelevant considerations into


32/47

account, acting for improper purpose, asking wrong questions, acting in

bad faith, neglecting to take into consideration relevant factors, acting

unreasonably etc.

The Supreme Court observed in K.L. Trading Co. Ltd. v. State of Meghalaya, that to attract

judicial review of administration action, the applicant must show that the administrativeaction suffers from vice of arbitrariness, unreasonableness and unfairness. Merely because

the Court may feel that the administrative action is not justified on merit, can be no ground

for interference. The Court can only interfere when the process of making such decision is

wrong or suffers from the vice of arbitrariness, unfairness and unreasonableness.


33/47

9

ROLE OF WRITS IN THE ADMINISTRATIVE LAW

Adminis

growing importance of administrative law and the role of judiciary in administrative action

Documents