Scope of Administrative law

Introduction

There is a great divergence of opinion regarding the definition

of concept of the administrative law. The is because of the tremendous increase in the
administrative process that it makes impossible to attempt any precise definition of
administrative law which can cover the entire range of the administrative process. Hence
one has to expect differences of scope and emphasis in defining administrative law. This is true
not only due to the divergence of the administrative process within a given country,
but also because of the divergence of the scope of the subject in the continental and Anglo-
American legal systems.

Administrative law

The four basic bricks of the foundation of any administrative law may be identified as: (i) to
check abuse or detainment of administrative power: (ii) to ensure to citizens an impartial
determination of their disputes by officials: (iii) to protect them from unauthorized
encroachment on their rights and interests;1and (iv) to make those who exercise public power
accountable to the people.

Definitions of Administrative Law

Sir Ivor Jennings Defines administrative law as the law relating to administration. It determines
the organization, powers and the duties of administrative authorities. 2 Jennings has defined
Administrative law as ―the law relating to the administration. It determines the organization,
powers and duties of administrative authorities. Massey criticizes this definition because it fails
to differentiate administrative and constitutional law. It lays entire emphasis on the
organization, power and duties to the exclusion of the manner of their exercise. In other words,

1
Julius Stone: Social Dimensions of Law and Justice, (1996), p. 711
2
Jennings: Law and the Constitution, p. 217
this definition does not give due regard to the administrative process, i.e. the manner of agency
decision making, including the rules, procedures and principles it should comply with.

According to Dicey’s formulation, administrative law relates to that portion of a nation’s leal
system which determines the legal status and liabilities of all state officials: secondly, it defines
the rights and liabilities of private individuals in their dealings with public officials: and thirdly,
specifies the procedure by which those rights and liabilities are enforced.3 According to
Kenneth Culp Davis, administrative law is a law that concerns the powers and procedure of
administrative agencies, including especially the law governing judicial review of
administrative action. Austin has defined administrative law, as the law which determines the
ends and modes to which the sovereign power shall be exercised. In his view, the sovereign
power shall be exercised either directly by the monarch or indirectly by the subordinate
political superiors to whom portions of those powers are delegated or committed in trust.

Dicey like Jennings without differencing administrative law from constitutional law defines it
in the following way. Firstly, it relates to that portion of a nation‘s legal systems which
determines the legal status and liabilities of all state officials. Secondly, defines the rights and
liabilities of private individuals in their dealings with public officials. Thirdly, specifies the
procedures by which those rights and liabilities are enforced. Schwartz has defined
administrative law as ―the law applicable to those administrative agencies, which possess
delegated legislation and adjudicative authority. This definition is a narrower one. Among other
things, it is silent as to the control mechanisms and those remedies available to parties affected
by an administrative action.

Massey gives a wider and working definition of administrative law in the following way.

“Administrative law is that branch of public law which deals with the organization and powers
of administrative and quasi administrative agencies and prescribes the principles and rules by
which an official action is reached and reviewed in relation to individual liberty and freedom”.

Thus Administrative law can be defined as that branch of public law which deals with the
organization and powers of administrative and quasi-administrative agencies and prescribes
principles and rules by which an official action is reached and reviewed in relation to individual
liberty and freedom.4

3
Dicey: Law of the Constitution
4
I.P. Massey, Administrative Law, (2008), p. 5
Scope of Administrative

1. Administrative law is a law but it is not a law in the lawyer’s sense of the term like
property law or contract law. It is a law in the realist’s sense of the term which includes
statute law, administrative rule-making, precedents, customs, administrative directions,
etc. It also includes the study of something which may not be termed ‘law’ in the true
sense of the term such as administrative circulars, policy statements, memoranda and
resolutions,etc. besides this, it includes within its study ‘higher law’ as well, like the
principles of natural justice. However, in India, administrative law basically and wholly
remains a judge-made law and thus suffers from “the frailties and benefits from the
strengths of judicial law making”. Consequently, personal and institutional constraints
make the growth of administrative law vulnerable to judicial meanderings and
tentativeness.
2. Administrative law is a branch of public law in contradistinction to private law which
delas with the relationships of individuals inter se. therefore, administrative law
primarily deals with the relationship of individuals with the organized power.
3. Administrative law deals with the organization and powers of administrative and quasi-
administrative agencies. The stress on the study of organization is only to the extent
that it is necessary to understand the powers, characteristics of actions, procedure for
the exercise of those powers, characteristics of actions, procedure for the exercise of
those powers and the control mechanism provided therein. The study includes not only
administrative agencies but also the quasi-administrative agencies such as
Corporations, firms, autonomous agencies, individuals and civil society institutions
both national and global and the like.
4. Administrative law includes the study of the existing principles and also of the
development of certain new principles which administrative and quasi-administrative
agencies must follow while exercising their powers in relation to individuals. i.e. the
principles of natural justice, reasonableness and fairness.
5. Administrative law primarily concerns itself with the official action which may be:
1. Rule-making or quasi-legislative action,
2. Rule-decision or quasi-judicial action,
3. Rule-application or administrative action, or
4. Ministerial action or pure administrative action.
Besides these main actions, the actions which are incidental to the main action are also covered
within its study. Such incidental actions may be investigatory, supervisory, advisory,
declaratory and prosecutor.

6. One of the main thrusts of the study of administrative law is on the procedure by which
the official action is reached. If the means (procedure) are not trustworthy, the end cannot
be just. There is a bewildering variety in the procedure which the administrative agencies
follow in reaching an action. Such procedure may be laid down:

1. In the statute itself under which the administrative agency has been created;

2. in the separate procedure code which every administrative ageny is bound to follow, i.e.
Administrative Procedure Act, 1946 in the USA and Tribunals and Enquiries Act,1958 in
England.

However, in many more cases either the administrative agency is left to develop its own
procedure or it is required to render its actions according to the minimum procedure of the
principles of natural justice.

7. Administrative law also includes within its study the control mechanism by which the
administrative agencies are kept within bounds and made effective in the service of the
individuals. This control mechanism is technically called the ‘review process’. An
administrative action may be controlled by:

1. Court exercising writ jurisdiction through the writs of habeas corpus, mandamus,
certiorari, prohibition and quo warranto;
2. Courts exercising ordinary judicial powers through suits, injunctions and
declaratory actions;

3. Statutory authorities like ombudsman, Human Rights Commissions, and other

investigative agencies;

4. Higher administrative authorities;

5. Public opinion and mass media in the twentieth century is also an important control
on any administration law cannot lose sight of. In America, opinion polls and mass
media exercise much more effective control on the administration than any other
single control inasmuch as this control mechanism has the potentially of pre-empting
any adverse administrative decision.

6. Civil Society and interest representations also play an important role in controlling
the arbitrary exercise of public power, both at the pre-natal and post-natal stages.
Though in India this form of control is still at the take-off stage, yet organisations
such as Consumer Protection and Research Society, Society for the protection of Civil
Liberties, Chipko movement and other consultative and advisory bodies have played
a significant role in this direction.

7. ‘Easy Access to Justice’ also provides an effective check on bureaucratic

adventurism in the exercise of public power. If the access to justice is easy and quick
it may deter administrative instrumentalities from developing and attitude which has
even termed as “fly-now-pay-later”. Easy access to Justice includes procedural
facility which is cheap, speedy and less formalistic, legal aid, and availability of
advocates for public interest litigation, intellectual capacity of the party and active
participation of the judges. Uncontestably, this control mechanism in India is too
weak to provide any effective check on recidivist administrative deviance. Procedural
law and practice is highly formalistic, dilatory and expensive and legal aid is merely
a concept. Very few advocates are available to take up public interest litigation.
Lately, Advocates and

8. Right to Know, Right to Reply and Discretion to Disobey also have inherent
potentialities of proving effective though indirect, in providing check on
administrative behavior.
8. the study of administrative law is not an end in itself but a means to an end. The focal point
of the study of administrative law is the reconciliation of power with liberty. When the
administrative process started rising after the death of laissefaire at the birth of the twentieth
century, the stress on the study of administrative law was on circumscription of administrative
powers. But now when the administrative process has come to stay, the emphasis has shifted
to the regulation of administrative powers.

The above formulation, however, only delineates the scope of administrative law as is
commonly accepted in the common law world. Administrative law specialists in England and
India mainly focus their attention on various aspects of judicial control of administrative
decisions and actions. In the study of such topics as tribunals and enquiries the emphasis is
likely to be between these institutions and the courts as alternative methods of controlling
administrative action. These specialists rarely into administrative process itself to consider how
government departments and other administrative agencies actually operate or how and why
their procedures and structures differ from the judicial mode of decision-making or how the
administrative process could be made more effective and efficient by reform from within.

Friedman, therefore, felt concerned with the legitimacy of administrative process rather than
the legitimacy of judicial review of administrative action. In his study of administrative law he
includes his concern for:

1. Failure of the administrative agencies to conform to the constitutional parameters:

2. Public ambivalence towards the substantive policies sought to be achieved by some
agencies;
3. Departure made from judicial procedure in decision-making;
4. Skepticism about administrative expertise and bureaucratic expansion;
5. Apparent absence of direct political accountability; and
6. Problems created by the broad delegation of legislative powers.

Viewed against this perspective, administrative law becomes an all pervasive legal discipline.
Principles of administrative law emerge and develop whenever and wherever any person
becomes the victim of the arbitrary exercise of public power.
Today, the emerging patterns of global governance as a consequence of globalized
interdependence in such fields like trade, development, environment, communication, banking,
migration and security has thrown new challenges before this discipline of law which requires
an organized action for research and practice.

This transnational administrative and regulatory regime which has consequences for the people
of the world, especially those living in the developing countries. Needs a strong system of
International Administrative Law to reconcile growth with justice and free competition with
fair competition. Certainly growth for the sake of growth is no growth; it is cancerous growth,
unless it is tempered with social justice. Only a good body of administrative law can fill this
growing space at the national and transnational level with advantage by enforcing probity,
responsibility and accountability within the area of administrative process. Development of the
new norms of administrative law jurisprudence still remains the unfinished agenda of
globalization. This makes administrative law an excellent area of study, research and practice.

Administrative law is not a branch of philosophy of law but a sociology of law

Philosophy of law deals with the cosmos of law, its object being a formulate features which
every established legal order must necessary possess, and which were derived by the sheer
force of logic and deduction or through divine ordination. The jurisprudence thus developed
assigned a mechanistic role to a judge based on neutral principle. Sociology of law, on the other
hand, is a science of practical application which requires an analysis of diverse functions of
law in the application to particular situations. Thus, the spirit of law becomes experience and
not logic which runs close to the rule of life. In this realm law cannot afford to become divorced
from the socio-economic realities of society. It must become people oriented, weighted in
favour of the weaker sections of society. In this context,, administrative law and its utility and
vitality depends on its capacity to solve the just expectations of the neglected segments of the
society. Against this backdrop administrative law must run very close to the lives which we
daily live.
 Conclusion
The administrative law has growing importance and interest and the administrative law 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. 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 problems presented.” Administrative law is essentially
Judge made law. It is a branch of public law as compared 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 people’s Rights Principles of administrative law emerge and
development whenever any person becomes 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 and statutory 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 ensures
transparent, open and honest governance, which is more people-friendly. Inadequacy of the
traditional Court to respond to new challenges has led to the growth of 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 and powers quasi-administrative agencies. Administrative law primarily
concerns with official action and the procedure by which the official action is reached.
Administrative law includes the control mechanism (judicial review) by which administrative
authorities are kept within bounds and made effective.