• Administrative law is not a law in the sense of what we perceive

• It is so intertwined with Constitution and Constitutional Law that

both overlap each other

• Sir Ivor Jennies, famous jurist, in his book, “Law and the

Constitution” defines Administrative Law as “ the law relating to

administration. It determines the organisation, powers and duties of

administrative authorities.”

• The main criticism against this definition is that, Constitution or

Constitutional Law also does the same. Then what is the difference

between the Administrative Law and Constitutional law?

• This definition lays entire emphasis on the organization, power and

duties to the exclusion of the manner of their exercise

• For example a student of Administrative Law is not concerned with

how a Minister is appointed; but with only how a Minister discharges

his functions in relation to individual or a group

• Keith in ‘Constitutional History of England’, also supported the same

view by saying, “it is logically impossible to distinguish Administrative

Law from Constitutional Law and all attempts to do so are artificial”

• However, famous jurist, Holland, in his book ‘Jurisprudence’ tried to

reconcile this dichotomy by saying, “the Constitutional Law describes

the various organs of the Government at rest, while the

Administrative Law describes them in motion”

For our purposes, we may define Administrative Law in Four ways:

1.Firstly, it is a branch of Public Law which deals with the contradistinction

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

Whereas the Administrative Law primarily deals with the relationship of

individuals with the organised power

2.Secondly, it deals with the organisation and powers of administrative and

quasi-administrative agencies and but alos quasi administrative agencies like

Public Sector undertakings

3.Thirdly, Administrative Law includes the study of the existing principles and

also of the development of certain new principles which administrative and

quasi-administrative agencies follow while exercising their powers

Contd….

• 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 can not be just. There is a bewildering variety in the

procedure which the administrative agencies follow in reaching action. Such

procedure may be laid down:

• In the statue itself under which the administrative agency has been

created

• In the separate procedure code which every administrative agency is

bound to follow, i.e., Administrative Act, 1946 in USA and Tribunals and

Enquiries Act, 1958 in England

• However, in many more cases either the administrative agency is left

free to develop it’s own procedure or it’s own procedure or it is required

to render it’s actions according to the minimum procedure of the

principles of natural justice

Contd….

4. Fourthly, Administrative law includes within it’s 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

declaratory actions

• Higher administrative authorities

• The institutions of ombudsman and other investigative agencies such as

Vigilance Commissions 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 inherent

potentialities of providing effective , though indirect, in providing check on

administrative behaviour

Contd….

• The focal point of the study of Administrative Law is the reconciliation of

power with liberty

• When the administrative process started raising after the death of Lassiez-

Faire at the birth of the 20th 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 the administrative powers

• The paradox of the 20th Century in the form of Government is the prolific

growth in the powers of the State which on the one hand necessary for the

promotion of human liberty and freedom, but on the other hand, threatens to

endanger individual freedom. Therefore, the main task of the students of

Administrative Law is to evolve certain principles and rules by which an ideal

equilibrium between the powers of the administration and dictates of the

individual liberty can be sustained

• Though there are constitutional provisions like Articles

14,15,16,19,21 & 22 which guarantee various human rights

and rule of Law.

•But, in India, finer points of this branch of jurisprudence

have emerged out of various court judgments only.

• Being a judge-made law, it suffers from “the frailties and

benefits, from the strengths and weaknesses of judicial law

making”. Consequently, personal and institutional

constraints make the growth of Administrative Law

vulnerable to judicial meanings and tentativeness

Contd..

•Prof. Upender Bakshi, Professor of Law, Delhi University has

written “ What we rightly or wrongly named as Administrative Law

is nothing more or less then a grand meta-narrative. It is a story

about all stories of Law in the making and unmaking.”

• In India, Administrative Law as a separate branch of legal

discipline came to be recognized only by the middle of 20th Century

• The First seminar on Administrative Law was organised by the

Indian Law Institute, New Delhi, in December, 1857. Today, the

administration is ubiquitous and impinges freely and deeply on

every aspect of an individual’s life

Contd..

Four basic bricks of the foundation of the Administrative Law may be identified as

i. To check abuse or detournment of administrative power;

ii. To ensure to citizens an impartial determination of their dispute by

officials;

iii. To protect from unauthorized encroachment on their rights and interests;

and

iv. To make those who exercise public power accountable to the people.

From the above. It should be clear the generally Laws make enabling

provisions for the executive to do certain things. But, Administrative

Law is in the nature of restricting provisions i.e., ways and means to

restrict the arbitrary exercise of power by the executive

Firstly let us try to understand the administrative exercise power in

Three ways:

i. Rule making power which is also called quasi-legislative action or

delegated legislation

ii. Adjudicatory functions and

iii. Rule application action

Besides these main actions, the actions which are

incidental to the main action are also covered within it’s

study. Such actions may be investigatory, supervisory,

advisory, declaratory or prosecutory

• With all the pervasive nature of governance, today, it is

not possible for the legislature to provide for every small

detail in the Act and hence the legislature only provides

the broad frame work of the policy and leaves the

details to be filled up by the executive in form of rules,

regulations, etc.,

• The Indian Parliament enacted from the period 1973 to

1977 a total of 302 laws: as against this the total number

of statutory orders and rules passed in the same period

was approximately 25414. Similar figures for the State

legislatures may be mind blogging

• Administrative legislation is ultra-virus the

enabling act either in policy or in procedure;

• excessively delegates or

• manifestly unjust

• It is not possible for the Courts to take up all the adjudication

of all the disputes. Hence, most of the enactments provide for

their own mechanism or primary or secondary level of

adjudication in form of department appeals, review or revisions

• For over some Three or Four Hundred years the Anglo-

American courts have applied Two Principles of Natural Justice,

i.e.,

Nemo judex in causa---No one can be judge in his own

case or in other words rule against bias

Audi alterm partem ------- Hear the other party or the

rule that no one should be condemned unnoticed

Contd….

However, Indian Courts have very active in the cause of Natural

Justice and the main principles which have emerged out of the

Court ruling are:

i. Only competent authority can pass an order

ii. Rule against dictation or in other words the authority

making an order should exercise his independent mind

and should not be dictated by others

iii. No body can be judge in his own cause.

iv. The authority should not suffer from bias either

personal bias or departmental bias

v. a person must be given an opportunity to defend

himself or in other words nobody should be condemned

without being heard

vi. The order should be reasoned or in other words it

should be speaking order Contd….

Contd….

Rule of audi alterm partem of being heard includes:--

a)Right to notice giving time and place of nature of

hearing;

b)Right to present case by adducing evidence;

c)Right to rebut adverse evidence;

d)No evidence to be taken at the back of the party;

e)Report of the enquiry to be shown to the party; and

f)Reason of the decision or the speaking order.

Contd….

• Exclusion in the case of emergency

• Exclusion in the case of confidentiality

• Exclusion in the case of routine matter

• Exclusion based on impracticality

• Exclusion in the case of interium preventive action

• Exclusion in the case of legislature action