Nature & Scope of Administrative Law

Admn Law most outstanding development of the 20th

Century;
Grown & developed tremendously in quantity, quality &
relative significance;
Has assumes a recognizable form & has become
identifiable as a branch of public law
Administrative processes have increased tremendously
, today we are living not in its shade but shadow
Modern welfare state takes care of citizen from cradle to
grave .
Administrative law is no doubt a conceptually awkward
and fuzzy notion
an ever-growing doctrinal sphere because it has no
fixed terrain.
 Reasons for Growth
Change in the concept of government
Laissez faire to welfare state & now contracting
Individualism to collectivism
Protector, provider, entrepreneur, economic controller & arbiter
Evolution of socialistic pattern of society

Inadequacy of judicial system

Inadequacy of legislative process
Scope for experimentation
Non technical character
Adoption and policing of preventive
measures
 Public Administration
A
Public
L Public Law

P P Public Personnel

P Public Policy

P Public Purpose

A Public Accountability
 Definition
No single well accepted definition of
administrative law
Either has been defined in a broad or
narrow sense
Initially was considered part of
Constitutional law
 Ivor Jennings

Administrative Law is the law relating to

the administration. It determines the
organisation, power and duties of
administrative authorities

No mention of the procedure

other controls also excluded
no distinction between Consti. & Admn. Law
Very wide def, as all the laws contain prov. on powers of
auth.
 H.W.R. Wade

Administrative Law is the law relating to

the control of government powers
 K.C. Davis

Administrative Law is the law concerning

the powers and procedures of
administrative agencies, including
especially the law governing judicial
review of administrative action.

Admn agency includes legislative & judicial body

Thus excludes the discretionary function
only emphasis on the judicial control
 Jain & Jain
Administrative Law deals with structure,
powers and functions of the organs of
administration, the limits on their powers,
the methods and procedure followed by
them in exercising their powers and
functions, the methods by which their
powers are controlled including the legal
remedies available to a person against
them when his rights are infringed by their
operation.
 I.P. Massey
Administrative law attempts to regulate administrative
space, domestic and global, in order to infuse fairness
and accountability in the administrative process
necessary for securing equity and inclusiveness in the
domestic and world order.

Four bricks of A.L

Prevent abuse of power
Encourage citizen to get impartial determination of
disputes
Eliminate encroachment of rights of individuals
Accountability
 An analysis of Formulation
It is not a law in the lawyer's sense
A branch of public law
deals with the organisation and powers of
administrative and quasi-administrative agencies
study of the existing principles
and also of the development of certain new principles
law primarily concerns itself with the 4 type of official
action
One of the main thrust on procedure by which the
official action is reached.- that may be in the statute or
free to devise its procedure, or Min procedure PNJ
 Study the control mechanism by which the
administrative agencies are kept within bounds and
made effective
Writ
Appeal / review
Regulatory / Statutory bodes
Public and Media Scrutiny
Civil Society organisations & RTI
The focal point of the study of administrative law is the
reconciliation of power with liberty.

The paradox of the 21st century is the prolific growth in

the powers of private sector the one hand is necessary
for economic growth and freedom, but on the other
hand threatens individual freedom.
 Theories of A.L

Red Light Theory

Green Light Theory

Amber Light Theory

 Sources
Ever-growing sphere with no fixed terrain
Found all across the board, & still to be
found invented, discovered & traced
Integral part of constitution-not only
reflects but also shaping it
Most part uncodified & judge made.
Ubi jus ibi remedium
 Administrative law primarily unfolds via
judicial decisions
justices and courts arrive at the sense of
the limits of executive/administrative
decision-making power and of their own
judicial review powers.
Signifies a one-step-forward-two-steps-
backward adjudicatory movement
Judicial see-saw
 OLD IAL FORMATION
1947-1975
Assertion of parliamentary sovereignty
Vast powers of delegated legislation recognised and
affirmed
Recognises the importance of the doctrine of
separation of powers under the Indian Constitution
Expanded the realm of judicial review powers
first device administrators ought to follow the letter and
spirit of the statutory powers vested in them
OIALF elaborates NJ doctrine
petitioners comprised -economic actors contesting an
era of control and command economy, civil servants,
citizens contesting the preventive detention regime,
citizens seeking to protect their property rights.
 NEW IAL FORMATION
1976-1989-post-Emergency era of cathartic and populist
judicial activism
mantra of arbitrary and un- reasonable State action- part of
Article 14, 19, 21
"procedure established by law" entirely substituted by the
full judicial interpretation of the "due process of law
Article I2 of the Constitution" Clearly, larger the notion of
"State
ISC "missed a unique opportunity" for insisting that "the
corporate device will not be allowed to be used as a barrier ...
ousting the Constitutional Control of Fundamental Rights
"State-like" actors, who exercise powers of life and death
over citizens and peoples.
 CONTEMPORARY IAL FORMATION
1991 onwards- era of LPG

Emergence of regulatory state

Now declare NJ very differently.

A wide, and indeed constitutionally vast, margin

of appreciation is now accorded to executive
discretion which shapes macroeconomic policy

the "policy realm over which justices now

relinquish all judicial review control
 Historical Growth
England
1885 Dicey In England, we know nothing of
administrative law and we wish to know
nothing.
1929- Committee on Ministers Powers- to
examine problems of delegate legislation &
Judicial & quasi-judicial powers exercised by
officers
Statutory Instrument Act, 1946
Crown Proceedings Act, 1947
Tribunals & Enquiries Act, 1958
 USA
Admn Law was in existence since 18th Century

Grew rapidly with passage of Interstate

Commerce Act, 1877

Roscoe Pound Committee 1938

Attorney General Committee 1939

Administrative Procedure Act passed in 1946

Civil Law System Droit Administratif
French system- two type of laws & two sets of courts
independent of each other;
ordinary courts administer ordinary civil law b/ w
subjects and subjects;
Administrative Tribunals which decide all the claims &
disputes in which admn authorities or officials are
parties;
Headed by Couseil d Etat;
Very old system, estd in 1799 by Napoleon;
Tribunal des Conflits resolves any conflict b/ w
ordinary courts and administrative tribunals regarding
jurisdiction
 India
Increases in power with advent of British rule in
India -Regulation on health, safety, morality,
transport, labour
Stage Carriage Act, 1861-beginning of
administrative licensing
Bombay Port Trust Act, 1879 -estd 1st public
corporation
The Indian Explosives Act, 1884-regulate licensing
of trade and traffic in explosives.
North India Canal & Drainage Act &Opium Act,
1878-delegated legislation
 After Second World war -Defence of India
Act, 1939
Labour Legislations- IDA, 1947; Minimum
Wages Act, 1948, ESIC Act, 1948
Constitution incorporated concept of
Welfare State
Number of Regulations Adopted which led to
increase in govtal power
Need was felt to enforce Rule of Law &
Judicial Review
Constitutional Law & Administrative Law

Two schools of thought

One- no difference between the two
- both are concerned with functions of
govt & part of public law
2nd - there is difference between the two
- CL describes various organs at rest,
AL describes them in motion
 Control mechanism under
Constitution

Administrative Agencies
under Constitution

Constitutional limitations Constitutional

Administrative
Law
on delegation of powers Law

Constitutional provisions
relating to FRs which
impose fetters on watershed
administrative actions
 Judicial Review Vs Appeal

Appeal decision right or wrong

Judicial Review- Lawful or unlawful
Grounds
Legality
Irrationality
Procedural Impropriety
 Extent of Judicial Review

The range of judicial review recognized in the

superior judiciary in India is perhaps the widest
and most extensive known in the world of law.
The power extends to examining the validity of
even an amendment to the Constitution, for
now it has been repeatedly held that no
constitutional amendment can be sustained
which violates the basic structure of the
Constitution Pathak CJ
 N - Grundnorm

N1 N 1 N1 N1

N2 N2 N 2 N2 N2 N 2
Basic Doctrines of
Administrative Law
 Rule of Law
Diceys Concept of Rule of Law
Supremacy of law
Equality of Law
Judge made Constitution
Merits
It is a powerful & effective tool in keeping the
administrative actions within limit
Broad principles of RoL have been accepted
in all legal systems as constitutional
safeguards.
Role of judiciary in enforcing individual rights
& freedoms irrespective of their inclusion in
Constitution
 Defects
Failed to distinguish between arbitrary
power from discretionary power
Misunderstood the real nature of droit
administratif
He formulated a concept as
universally accepted ideological
content which is not correct.
 Modern Principle of RoL
The holders of public power must be able to justify publically the
exercise of power as legally valid & socially just
That is is must no only be conditioned by Constitution but also in
accordance of law and subject to judicial review
Law rules which is based on principles of freedom, equality, non-
discrimination, fraternity, accountability & non-arbitrariness and is
certain, regular & predictable
RoL is now considered as an aspect of the doctrine of basic
structure of the Constitution
RoL has developed many facets which are not only negatives
providing restraints on govt powers
But also includes affirmative facets
Observance of PNJs
Access to information
Fair dealing of the state in economic policy
 Separation of Power
Power are of three kind
- legislative
- executive
- judicial
Each of these powers should be vest in
a separate and distinct organ
 Separation of power means three
different things:

Same person should not form part of

more than one of the three organs;

One organ of the government should not

control or interfere in the exercise of
function by another organ;

One organ should not exercise the

functions of another.
 Defects
there is no strict separation of power under
Constitution
There is no watertight compartments between
the three functions
Strict separation is a theoretical absurdity &
practical impossibility
In practice it is organic separation distinction
between essential & incidental power
 Importance
Doctrine has contributed has tremendous
impact on the development of AL &
functioning of govt.
Strict application of doctrine is
impracticable but its value lies in checks
and balances
One feature of the doctrine is accepted by
all is that the judiciary must be
independent & separate.
 Classification of Administrative
Action
Rule Making action or quasi-legislative action
Rule-decision action or quasi-judicial action
Rule-application action or administrative
action
Ministerial action or pure administrative
action
Quasi is a smooth cover which we draw over
our confusion as we might use a counter pane
to conceal a disordered bed - Schwartz
 Administrative Rule making
any administrative authority exercises the law-making
power delegated to it by the legislature
commonly known as delegated legislation.
It partakes all the characteristics, which a normal
legislative action possesses-generality, prospectively
and gives a right or a disability.
However, in some cases, administrative rule-making
action may be particularised, retroactive and based on
evidence.
Fixation of price
Imposition of tax
Expansion of limits of a town area committee
 Quasi-Judicial Action
A power to perform acts administrative in character, but requiring
incidentally some characteristics of judicial traditions.
Courts apply pre-existing law where as the admn. auth. exercise
discretion.
Quasi-judicial authority has some trappings of the court
Authority not bound by rule of evidence and procedure but only
Principle of natural justice.

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 statutory disputes.
Power to continue the detention or seizure of goods beyond a particular
period.
Refusal to grant no objection certificate
 Administrative Action
Administrative action is the residuary action which is
neither legislative nor judicial.

It is based on subjective satisfaction where decision

is based on policy and expediency.

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.
 Ministerial action

A further distillate of administrative

action is ministerial action.

Involves the performance of a definitive

duty in respect of which there is no
choice.
 Administrative Instructions
Admn. Instruction issued for
determination of policy & its uniform
application
These have no statutory force, neither
give rise to any legal right nor can be
enforced in court of law
Breach exposes the subordinate to
disciplinary action
Action can be brought under 226 if action
is arbitrary
Globalisation & Administrative Law
Hallmarks of globalisation in economic
sense include liberalisation, privatisation and
integration of domestic economy with world
economy

Large-scale delegation of public functions and

responsibilities to private players-confining its
role only as facilitator, enabler and regulator

Deprived sections of society, become "victims

of development rather than beneficiaries
 Global Administrative Law
Tremendous increase in the reach and form of trans-
governmental regulation

Therefore, the need to develop a strong body of global

administrative law to regulate the forces which
globalisation

Global administrative law must address problems of

global law-making, global administration, global
adjudication and global accountability.

The purpose of global administrative law may be to

develop principles and norms necessary for
reconciling claims of globalisation with the claims of
human development
 A.L- Emerging Issues
Impact of globalization and liberalization on the
structure of A.L
Rolling back of the State Will it mean rolling
back of the judicial review as well
Substitution of one form of govt with other
emergence of Regulatory bodies
But these Regulatory bodies proved to be
insufficient.
Liability of non-state but state like actor
emergence of doctrine of state action