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Administrative Law Notes, Schemes and Mind Maps of Administrative Law

Administrative Law Notes for Third Sememster

Typology: Schemes and Mind Maps

2024/2025

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SYLLABUS
Unit-I
Definition of Administrative Law Nature and scope The impact and
implications of the Doctrine of Separation and the Rule of Law on Administrative
Law, Classification of Administrative Action the necessity
Unit-II
Legislative Power of Administration Doctrine of Vice of excessive Delegation -
Judicial and Parliamentary control over delegated legislation Advantages and
disadvantages of delegated legislation Exclusion of Judicial Review of Delegated
Legislation
Unit-III
Judicial power of Administration Tests to determine when an administrative
authority required to act judicially - Doctrine of Bias Doctrine of Audi Altrem
Partem Reasoned decision Exceptions to Natural Justice Effect of non-
compliance with rules of Natural Justice grounds on which decision of quasi-
judicial authority can be challenged before Supreme Court
Unit-IV
Administrative Discretion - Grant and exercise of discretion - Judicial review of
Administrative Discretion
Control of Administrative Action Judicial Control Public Law and Private Law
Remedies distinction Writs Theory, Practice and Procedure ouster clause
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SYLLABUS

Unit-I Definition of Administrative Law – Nature and scope – The impact and implications of the Doctrine of Separation and the Rule of Law on Administrative Law, Classification of Administrative Action – the necessity Unit-II Legislative Power of Administration – Doctrine of Vice of excessive Delegation - Judicial and Parliamentary control over delegated legislation – Advantages and disadvantages of delegated legislation – Exclusion of Judicial Review of Delegated Legislation Unit-III Judicial power of Administration – Tests to determine when an administrative authority required to act judicially - Doctrine of Bias – Doctrine of Audi Altrem Partem – Reasoned decision – Exceptions to Natural Justice – Effect of non- compliance with rules of Natural Justice – grounds on which decision of quasi- judicial authority can be challenged before Supreme Court Unit-IV Administrative Discretion - Grant and exercise of discretion - Judicial review of Administrative Discretion Control of Administrative Action – Judicial Control – Public Law and Private Law Remedies – distinction Writs – Theory, Practice and Procedure – ouster clause

Liabilities of the state in the province of Contract and Tort – Constitutional Tort Doctrine of Promissory Estoppels – Doctrine of legitimate expectation – Doctrine of proportionality Unit-V Corporates and Public Undertakings – Control of statutory corporations and public undertakings

  • Administrative deviance – Corruption and maladministration – Control mechanism Ombudsman in India (Lok pal and Lokayukta) – Central Vigilance Commission – Parliamentary Committees – Commission of Enquiry

justice to its subjects and collecting a few taxes to finance these activities. It was an era of free enterprise and minimum governmental responsibility and functions. The management of social and economic life was not regarded as government responsibility. This laissez Faire doctrine resulted in human misery. But all the things changed with the advent of independence. A conscious effort to begin to be made to transform this country into a welfare state the philosophy of welfare state has been ingrained in the preamble to Indian Constitution and the directive principles stated therein. The emergence of the social welfare concept has affected the democracies very profoundly. It has led to state activism. There has occurred a phenomenal increase in the area of state operation it has taken over a number of functions which were previously left to private enterprise. The state today provides every aspect of human life, the functions of a modern state may broadly be placed into five categories, the state as protector, provider, entrepreneur, economic controller and arbitrator. REASONS FOR GROWTH OF ADMINISTRATIVE LAW Administrative law is considered as an intensive form of government. It deals with the pathology of functions. The functions that are discharged by the administrative authorities differ from time to time depending upon the changes in socio-economic conditions in any nation. The following factors are responsible for the rapid growth and development of administrative law:

  1. Laissez Faire to Social Welfare: There is a radical change in the philosophy as to the role played by the State. The negative policy of maintaining 'law and order' and of 'laissez faire' is given up. The State has not confined its scope to the traditional and minimum functions of defense and administration of justice, but has adopted the positive policy and as a welfare State has undertaken to perform varied functions.
  2. Urbanization: Due to the Industrial Revolution in England and other countries and due 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.

  1. Emergency Situations : Enacting legislations, getting assent from the President is all a lengthy process, whereas it is very easy and quick to frame schemes and rules to meet any exigency 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.
  2. Speedy Disposal : 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 Labor Courts were established, which possessed the techniques and expertise to handle these complex problems.
  3. Pressure on Legislature : The legislative process was also inadequate. It 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.
  4. Experimental : 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.
  5. Technicalities : The administrative authorities can avoid technicalities. Administrative law represents functional rather than a theoretical and legalistic approach. The traditional 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

Observations of Law Commission are no less relevant today when India has adopted the policy of liberalization, privatization and globalization in which administrative law has developed international dimensions. Though state is now withdrawing from business, yet its functions as a facilitator, enabler and regulator are bound to increase. Growth of new centers of economic power which often exercise power in total disregard of the fundamental rights of people, especially of the disadvantaged Sections of society, will put emphasis on the development of knew norms of Rule of law and judicial review for reconciling economic growth with social justice. In recent times a new branch of administrative law is emerging, which is popularly called as 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 re look into the reasons for growth of administrative law

DEFINITONS

IVOR JENNINGS

Administrative law as the law relating to administration. It determines the organization, powers and duties of administrative authorities. This formulation does not differentiate between Administrative and Constitutional law. It lays entire emphasis on the organization, power and duties to the exclusion of the manner of their exercise. For example, administrative law is not concerned with how a minister is appointed but only with how a minister discharges his functions in relation to an individual or a group. How the minister of housing and rehabilitation is appointed is not the concern of administrative law, but when this minister approves a scheme for a new township, which involves the acquisition of houses and lands of persons living in that area, questions of administrative law arise. Sir Ivor Jennings formulation also leaves many aspects of administrative law untouched, especially the control mechanism. DICEY He did not recognize the independent existence of administrative law. He defined administrative law as denoting that portion of a nation's legal system which determines the legal status and liabilities of all state officials, which defines the rights and liabilities of private individuals in their dealings with public officials, and which specifies the procedure by which those rights and liabilities are enforced. The definition is narrow and restrictive in so far as it leaves out of consideration many aspects of administrative law, Dicey opposed the French droit administratiff and therefore his formulation mainly concentrated on judicial remedies against state officials. Therefore, this definition excludes the study of every other aspect of administrative law. The American approach is significantly different from the early English approach, in that it recognized administrative law as an independent branch of the legal discipline.

  1. What are the limits of those powers?
  2. what are the ways in which the administration is contained within those Limits? According to the Indian law Institute , the following two aspects must be added to have a complete idea of present-day administrative law
  3. what are the procedures followed by the administrative authorities?
  4. What are the remedies available to a person affected by administration? According to Jain and 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. Administrative law, according to this definition, deals with four aspects. Firstly, it deals with composition and the powers of administrative authorities Secondly, it fixes the limits of the powers of those authorities. Thirdly, it prescribes the procedure to be followed by these authorities in exercising such powers Fourthly, it controls these administrative authorities through judicial and other means. The unenviable diversity in definitions of the term administrative law is also due to the fact that a vary Administrative law specialist tries to lay more emphasis on any one particular aspect of the whole administrative process, which according to his own evolution desires singular attention. Professor Upendra Bakshi of India lays special stress on the protection of the little man from the arbitrary exercise of public power. According to him administrative law is a study of the pathology of power in a developing society. He defines administrative law as that portion of law which controls the abuse of powers by the administrative authorities so as to protect the rights of individuals.

Mindmap of Defintions on Administrative Law On an analysis of the above definitions it may be understood that there is no comprehensive and universally accepted definition of administrative law. for our purposes, we may define administrative law 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 arranged and revealed in relation to individual liberty and freedom.

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 not in the realist sense of the term which includes statute law, administrative rulemaking, 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, memorandum 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, it remains a judge made law and, thus, suffers from the frailties and benefits from the strength of judicial lawmaking. Consequently, personal and institutional constraints make the growth of administrative law vulnerable to judicial meanderings and tentativeness. Administrative law is a branch of public law in contradiction to private law which deals with the relationships of individual’s inter-se. Therefore, Administrative law primarily deals with the relationship of individuals with the organized power.

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 and the control mechanism provided therein. The study includes not only administrative agencies but also the quasi administrative agencies such as corporations, autonomous agencies, individuals, and civil society institutions, both national and global, and the like operating in public space and exercising public functions. 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 that is the principles of natural justice, reasonableness and fairness. Administrative Law primarily concerns itself with the official action which may be a. Rulemaking or quasi legislative action b. Quasi-judicial action c. Ministerial action or pure administrative action. One of the main thrusts of the study of administrative law is on the procedure by which the official action is original. If the means 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. a. In the statute itself under which the administrative agency has been created b. In the statute it under which the administrative agency has been created in the separate procedure code which a very administrative agency is bound to follow that is Administrative Procedure Act, 1946 in the USA and Tribunals and Inquiries Act, 1958 in England. However, in many more cases either the administrative agency is left free to develop its own procedure or it is required to render its actions according to the minimum procedure of the principles of natural justice. 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.

significant component of administrative process today and in many situations, codes apply the concept of fairness. The fourth limb refers to the control of the administration through judicial and other means. Under this head would fall judicial as well as extra judicial means of controlling the administration, example Tribunals, Ombudsman etc. It also includes a redressal of individual grievances against the administration. This aspect of administrative law is based on two basic postulates, namely a. Power is conferred on the administration by law b. No power is absolute and uncontrolled howsoever broad the power conferred.

RULE OF LAW

Rule of Law is a weapon in the armory of Justice. It embodies the doctrine of Supremacy; it is a basic and fundamental necessity for a disciplined and organized community. It is an antithesis to autocratic and arbitrary exercise of power by men. The concept of Rule of Law can be traced from the time of the Romans, who called it ‘Just Law’- Jus Naturale , to the Medieval period where it was called the ‘Law of God.’ The social contractualists, such as Hobbes, Locke and Rousseau, called the Rule of Law as the Contract law or Natural Law and the modern man calls it as Rule of law. Rule of Law means to the absolute supremacy or predominance of regular law as opposed to the Influence of arbitrary power and excludes the existence of arbitrariness of prerogative or even wide discretionary authority on the part of the government. The rule of law is a viable and dynamic concept and, like many other such concepts, is not capable of any exact definition. This, however, does not mean that there is no agreement on the basic values which it represents. The term rule of law is used in contradiction to “Rule of man and Rule according to the law”. Even in the most autocratic forms of government there is some law according to which the powers of the government are exercised, but it does not mean that there is the rule of law. Therefore, rule of law means that the law rules, which is based on the principles of freedom, equality, non-discrimination, fraternity, accountability and non-arbitrariness, and is certain,

regular and predictable, using the word law in the sense of just and Lex both. In this sense the rule of law is an idea. In history, man has always appealed to something higher than that which is his own creation the basic idea behind accountability is that the ruler’s rule without difference of the people and, therefore, must be accountable to them in the ultimate analysis. Forms of accountability may differ, but the basic idea must remain the same that the holders of public power must be able to publicly to justify the exercise of public power not only as legally valid but also socially just, proper and reasonable. In this manner the concept of the rule of law represents values and not institutions and connotes a climate of legal order which is just and reasonable, where in a very exercise of public power is chiefly designed to add something more to the quality of life of the people. Every legislative, executive and judicial exercise of power must, therefore, depend on this ideal for its validity. Consequently, it is the rule of law which defines law rather than the law defining the Rule of law. Dicey attributed the concept of rule of law was equality before the law or the equal subjection of all classes to the ordinary law of the land administered by the ordinary law courts. Dicey Claimed that Englishmen were ruled by law and law alone; he denied that in Britain the government was based on exercise by persons in authority of wide, arbitrary or discretionary powers. In many countries the executive exercised wide discretionary powers. It was very clear that wherever there was discretion there was room for arbitrariness which led to insecurity of legal freedom of the citizens. Equality before the law or the equal subjection of all classes to the ordinary law of the land administered by the ordinary courts, thesis of dicey had a tremendous impact on the growth of the administrative law in Britain where people were not ready to accept till very long that had come in to being there. Dicey misunderstood the real nature of French ‘Droit Administratiff’ he thought that the system was to protect the officials from the liability for their acts and such was inferior to the British court. Droit Adminstratiff is in certain respects more effective in controlling the administration than the common law system. According to Dicey, the Rule of Law is one of the fundamental principles of the English Legal System. In his book, ‘ The Law of the Constitution’ , he attributed the following three meanings to the said doctrine:

subject to one and the same law, and there were no separate tribunals or special courts for officers of the Government and other authorities. No person should be made to suffer in body or deprived of office, property except for a breach of law established in the ordinary legal manner before the ordinary courts of the land. In this sense, the rule of law implies a. Absence of special privileges for a government official or any other person b. All the persons irrespective of status must be subjected to the ordinary courts of the land c. Everyone should be governed by the law passed by the ordinary legislative organs of the state The rights of the people must flow from the customs and traditions of the people recognized by the courts in the administration of justice. This principle enunciates Democratic principle of equal subjection of all persons to the ordinary law of the land as administered by the ordinary courts. This does not mean that the law must be the same for everybody irrespective of functions or service. Dicey’s insistence was that a government officer must be under the same liability for acts done without legal justification as a private individual. Does he contrast the English legal system with that of France where government officials were protected by special rules in special administrative tribunals.

III. PREDOMINANCE OF LEGAL SPIRIT

Judge made Constitution explaining the third principle, Dicey stated that in many countries rights such as the right to personal liberty, freedom from arrest, freedom to hold public meetings, etc. are guaranteed by a written Constitution; in England, it is not so. Those rights are the result of judicial decisions in concrete cases which have actually arisen between the parties. Thus, Dicey emphasized the role of the courts of law as guarantors of liberty and suggested that the rights would be secured more adequately if they were enforceable in the courts of law than by mere declaration of those rights in a document, as in the latter case, they can be ignored, curtailed or trampled upon. He stated: “ The Law of the Constitution, the rules which in foreign countries naturally form part of a Constitutional Code, are not the

source but the consequences of the rights of individuals, as defined and enforced by the courts .” it does not lay down any legal rule but merely explains one aspect of the British Constitutional system where common law is a source of fundamental freedoms of the people. He does distinguish the British system from that of many other countries which had written Constitutions with a chapter on individual rights. Dicey feared that if the source of the fundamental rights of the people was any document, the right could be abrogated at any time by Amending the Constitution this is what happened in India during 1975 emergency. When the Supreme Court ruled that even illegal acts of the government could not be challenged in a court because it was found that the source of personal liberty in India was Article 21 of the Constitution, which had been suspended by the presidential proclamation, and not any common law of the people1. This principle puts emphasis on the role of judiciary in enforcing individual rights and personal freedoms irrespective of their inclusion in a written Constitution. Dicey feared that mere declaration of such rights in any statute or in Constitution would be futile if they could not be enforced. He was right when he said that a statute or even Constitution can be amended and ‘Fundamental Rights’ can be abrogated. We have witnessed such a situation during the emergency in 1975 and realized that in absence of strong and powerful judiciary, a written Constitution is meaningless. He criticized the French legal system of droit-administratif in which there were distinct administrative tribunals for deciding cases between the officials of the State and the citizens. According to him, exemption of the civil servants from the jurisdiction of the ordinary courts of law and providing them with the special tribunals was the negation of equality. Of course, Dicey himself saw that administrative authorities were exercising ‘judicial’ functions though they were not ‘courts’. He, therefore, asserted: “ Such transference of authority slaps the foundation of the rule of law which has been for generations a leading feature of the English Constitution .” ANALYSIS ON DICEY’S RULE OF LAW Administrative law Dicey mean only a single aspect of the French droit administratif, namely administrative jurisdiction to the exclusion of ordinary civil and criminal process Dicey admitted after 1901, that he concealed his idea of the nature and existence of administrative law from De Tocqueville, Who himself later admitted his ignorance about the actual working