ADMINISTRATIVE (Adm) LAW

UNIT: I NATURE & SCOPE

Introduction

1. Administration as a separate branch of legal discipline esp. in India came to be recognized only
by mid- 20th century. Today administration is ubiquitous and impinges freely and deeply on
every aspect of an individual’s life. The laissez faire doctrine manifested in the theories of
individualism, individual enterprise, and self-help; an era of free enterprise and minimum govt.
responsibility and functions. It came to be recognized that the bargaining position of every
person was not equal and uncontrolled contractual freedom led to exploitation of the weaker,
concentration of wealth in a few hands, became the order of the day. This realization gave rise
to the State taking active interest in ameliorating the conditions of the poor, dogma of
collectivism, state intervention in, and social control and regulation of, indl enterprise. The State
assumed positive role and out of the dogma of collectivism emerged the concept of “social
welfare state” with emphasis on the State as a vehicle of socio-economic regeneration and
welfare of the people.

Welfare State

2. This philosophy of welfare state has been expressly ingrained in, the Preamble to and the DPSP
in, the Indian Constitution; it aims at establishing a sovereign socialistic secular democratic
republic so as to secure to all its citizens, social, economic and political justice. The state activism
to improve physical, moral and economic welfare of the people, has led the State to assume
more and more powers to regulate society.
a) Art 38. The State is put under an obligation to strive to secure a social order in which
social, economic and political justice shall inform all the institutions of national life.
b) Art 39. The State is required to direct its policy towards securing that the citizens have
equal rights to an adequate means of livelihood; that the ownership and control of
material resources of the community are so distributed as best to sub-serve the
common good; that there is no concentration of wealth and means of production to the
common detriment; and that there is equal pay for equal work.
c) Art 39A. The State is required to operate a legal system which promotes justice, on
basis of equal opportunity, and to provide free legal aid, by legislation or schemes etc to
ensure opportunities for securing justice are not denied to citizen by reason of
economic or other disability.
d) Art 41. The State is obligated to provide work, education and assistance in cases of
unemployment, old age, sickness and disability.
e) Art 45 (Art 21A- 86th Amdt.- Rt to Edn. Wef 1-4-2010). Free and compulsory education
for children up to the age of 14 years.
f) Art 47. Duty of the State to raise the level of nutrition and the standard of living and to
improve public health. [Art 47 is fundamental in the governance; the State has the
 power to completely prohibit the mfg. sale, distribution and consumption of liquor as a
beverage.
g) Art 48A. The State is to endeavour to protect and improve the environment and
safeguard the forests and wild life of the country.

3. The state activism to improve physical, moral and economic welfare of the people, has led the
State to assume more and more powers to regulate society. A State consists of three organs –
Legislature, Executive and the Judiciary. Increase in State activities meant increased work for all
organs of the State, but the largest extension in the functions and powers took place at the level
of the Executive-cum-Administrative organ.

Independent Administrative Agencies: The Fourth Branch of Government?

These are agencies created by the parliament as part of Executive branch but are not under the
direct control of the President i.e. the executive. Many of such agencies are regulatory bodies.
These agencies are often referred to as the ‘headless fourth branch’ of the govt. These bodies
could be in the form of:

a) Statutory bodies. Established by Acts of Parliament and set up to consider data and
make judgments in some areas of activity; perform specific functions which the govt
considers effectively performed outside a traditional departmental executive structure.
Eg. National law Commission, Gen medical Council, UGC, NHRC, NGT, AFT, NCW etc.
b) Regulatory bodies. Govt agencies accountable for exercising autonomous authority
over some areas of human activity in a regulatory or supervisory capacity. The
regulations they adopt have the force of law. Essentially their function is legislative but
they may also conduct hearings and pass judgments concerning adherence to their
regulations. They exercise judicial function before a quasi-judicial official who is not part
of the court system. Eg. SEBI, SCI, IRDA, RBI, TRAI, Central Pollution Control Board,
DGCA, PCI, ASCI, Competition Commission of India (CCI), etc.
c) Quasi-judicial bodies. These institutes have powers analogous to that of law imposing
bodies but are not courts. Primarily, oversee the administrative zone. They lessen the
burden of the courts due their power of imposing law on administrative agencies.
Quasi-judicial action may be appealed to a court of law. Eg. NHRC, National Consumer
Disputes Redressal Commission, Railways Claims Tribunal, IT Appellate Tribunal, Central
Excise & Service Tax Appellate Tribunal, CCI, State Electricity Regulatory Commission,
etc.

The whole control mechanism for the control of the administrative authorities is in the
Constitution, i.e. Arts 32, 136, 226,227,300 and 311. It also includes for those adm agencies
which are provided for by the Constitution itself: i. Inter-State Council (Art 263); ii. Finance
Commission (Art 280); iii. Inter-State Water Dispute Authority (Art 262); iv. U P S C (Art 315);
and v. Election Commission (Art 324)
Nature and Scope

4. Adm law deals with:

 The powers of the administrative authorities,
 The manner in which the powers are exercised, and
 The remedies which are available to the aggrieved persons, when those powers are
abused.
5. The main object of study of adm law is to understand the way in which these adm auth could be
kept within their limits so that the discretionary powers may not turn into arbitrary powers.
Schwartz divides adm law in three parts:
a) The power vested in adm agencies.
b) The requirement imposed by law upon the exercise of those powers.
c) Remedies available against unlawful adm action.

Lord Denning in ‘Freedom under the Law’ (1949) has rightly observed, “Properly exercised, the
new powers of the executive leads to a welfare State; but abused they lead to the Totalitarian
State.”

Functions of Adm Law

6. Primary function is to:

 keep government powers within limits of law, and
 protect private rights and indl interests.

7. Today, the State is “protector, provider, entrepreneur, regulator and arbiter.” Rule-making
power (delegated legislation) and an authority to decide (tribunals) are effective and powerful
weapons in the hands of administration. As per Wade’s observation, all powers have two
characteristics:
 They are not absolute or unfettered, and
 They are likely to be abused

Sources of Adm Law

8. Adm law is neither codified nor documented or well-defined like IPC, Contract Act, TP Act etc. It
is essentially unwritten, un-codified or ‘judge-made’ law. Adm law is based on the legal maxim:
‘ubi jus ibi remedium.’ Even where no remedy is provided by a statutory enactment or the action
taken is treated as final, the aggrieved party may invoke Arts 226, 227, 32 or 136 of the
Constitution for redress of grievances.
Definitions

9. a) Sir Ivor Jennings:

Administrative law is the law relating to the Administration. It determines the
organization, powers and duties of administrative authorities.

b) Kenneth Culp Davis: American approach-

Administrative law is the law concerning the powers and procedures of
administrative agencies, including especially the law governing the judicial
review of administrative action.
He further goes on to observe: “Apart from judicial review, the manner in which public
officers handle business unrelated to adjudication or rule-making is not part of
Administrative law.”

c) Dicey:
Administrative law is that portion of a nation’s legal system which determines
the legal status and liability of all State officials, which defines the rights and
liability of private individuals in their dealing with the public officials, and which
specifies the procedure by which those rights and liabilities are enforced.

d) Wade:
Adm law is the law relating to the control of govt power.

e) Garner: Adopts American approach-

Adm law are those rules which are recognized by the courts as law and which
relate to and regulate the administration of Govt.

f) Griffith and Street:

The main object of administrative law is the operation and control of
administrative authorities. It must deal with three aspects:
i. What sort of power does the administration exercise?
ii. What are the limits of those powers?
iii. What are the ways in which the administration is contained within those
limits?
The Indian Law Institute has added the following two aspects:
i. What are the procedures followed by the administrative authorities?
ii. What are the remedies available to a person affected by the
administration?

d) Jain & Jain:

 “Administrative law deals with the structure , powers and functions of the
organs of administration; the limits of their powers; the methods and procedures
followed by them in exercising their powers and functions; the methods by which
their powers are controlled including the legal remedies available to a person
against them when his rights are infringed by their operation.”

It defines the scope, content and ambit of Adm law. This statement has four limbs.

I. First, deals with the composition and powers of organs of administration.

II. Second, are the limits on the powers of the administrative authorities.
These limits may either be express or implied.
III. Third, the procedures used in exercising those powers. Evolving of fair
procedures is a way of minimizing the abuse of vast discretionary powers
conferred on the administration. Eg. Principle of ‘natural justice’ forms a
significant component of the adm process. And
IV. Fourth, is the control of the Adm through judicial and other means. Both
judicial as well as extra-judicial means.

This aspect of Adm Law is based on two basic postulates:

i. Power is conferred on the Administration by law.
ii. No power is absolute and uncontrolled howsoever broad the power conferred.

Relationship: Constitutional law and Administrative law

Constitutional law is concerned with the organization and functions of the Govt at rest, whilst
administrative law is concerned with that organization and those functions in motion.
- Hood Phillips
According to Holland, the constitutional law describes the various organs of the govt at rest,
while administrative law describes them in motion.

It is logically impossible to distinguish administrative from constitutional law and all attempts to
do so are artificial.
- Keith

10. a) In essence adm law does not differ from constitutional law, but are concerned with
functions of the government and both are a part of public law and the sources of both are the
same. In countries having a written constitution the source of constitutional law is the
constitution while the source of administrative law may be the statutes, statutory instruments,
precedents and customs.
b) According to Maithland, while constitutional law deals with the structure and the
broader rules which regulate the functions, the details of the functions are left to adm law. The
 opinion of the English and American authors is that the distinction between them is one of
degree, convenience and custom rather than that of logic and principle.
c) Constitutional law deals with the rights and administrative law lays emphasis on public
needs.
11. India has a written Constitution. Constitutional law deals with the general principles relating to
the organization and power of the legislature, executive and judiciary and their functions inter
se and towards the citizens, administrative law is that part of the constitutional law which deals
in detail with the powers and functions of the administrative authorities, including civil services,
public departments, local authorities and other statutory bodies. Thus, constitutional law is
concerned with the constitutional status of Ministers and civil servants; adm law is concerned
with the organization of the services and the proper working of various departments of the govt.