Administrative Law notes and summarised chapters, Study notes of Law

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Saumya Bhasin

ADMINISTRATIVE

LAW

SEMEMSTER III

CONTENTS

• ADMINISTRATIVE LAW.................................................................................................
  • The Unit I- Evolution, Nature and Scope of Administrative Law................................. - 1.1 Change in the concept of state-from laissez-faire to Social Welfare state..... - 1.2 The increase of functions of the modern state............................................... - 1.3 Definition and Scope of Administrative Law................................................... - 1.4 Separation of Powers...................................................................................... - 1.5 Rule of Law.....................................................................................................
    • Unit II- Legislative Powers of Administration.........................................................
      • 2.1 Need for delegation of legislative power......................................................
      • 2.2 Constitutionality of Delegated Legislation....................................................
      • 2.3 Consultation of affected interest and public participation in rulemaking.....
      • 2.4 Publication of Delegated Legislation............................................................
      • 2.5 Legislative Control of delegated legislation..................................................
      • 2.6 Laying procedures and their efficacy...........................................................
      • 2.7 Judicial Control of delegated legislation.......................................................
      • 2.8 Sub-delegation of legislative powers............................................................
    • Unit III- Administrative Adjudication......................................................................
      • 3.1 Reasons for the growth of administrative adjudication................................
      • 3.2 Difference between quasi-judicial and administrative functions..................
      • 3.3 Principles of Natural Justice or fairness........................................................
      • 3.4 Administrative Appeal..................................................................................
      • 3.5 High Court’s superintendence over Tribunals..............................................
    • Unit IV- Administrative Discretion..........................................................................
      • 4.1 Administrative Powers..................................................................................
        • 4.2 Formulation and Execution of Policy...........................................................
      • 4.3 Need for Administrative Discretion...............................................................
      • 4.4 Limitations on exercise of discretion............................................................
    • Unit V- Remedies against Administration..............................................................
      • CERTIORARI, Prohibition, Mandamus and Quo Warranto.................................... 5.1 Writs under Art.s 32 and 226 of the Constitution of India Habeas CORPUS,
      • alternate remedies Locus Standi........................................................................ 5.2 Procedural Aspects Locus Standi, Laches, Res Judicata, Exhaustion of
      • 5.3 Exclusion of Judicial Review-Exclusionary clauses........................................

5. Thus, a need was felt that the state shall be more than a police state. It shall help in alleviating the poor, regulating individual enterprise and most importantly bringing about social justice. This led to the establishment of the social welfare state.
6. This may be seen even in case of India. Before independence, India was essentially a police state as the British were more interested in furthering their own interests rather than working for the welfare of the people.
7. However, the concept of social welfare was taken up immediately after independence especially after the adoption of the constitution.
8. The preamble to the constitution states that India shall be a socialist, secular, democratic, republic and must provide justice, equality, rights, freedom, etc. to all.
9. Other examples are that given in Part IV wherein it has been if there shall be no concentration of wealth towards the common detriment. There shall be an equitable distribution of wealth.
10. Also, right to free and compulsory education for children up to 14 years is now a fundamental right. 11.There is also the provision of equal pay for equal work under Part IV. 12.Further, various social legislation such as the Factories Act, Minimum Wages Act, etc. have come into the picture

1.2 THE INCREASE OF FUNCTIONS OF THE MODERN STATE

2. The growth of administrative law has primarily been due to the growth of administrative powers and functions which is again the result of increased state functions.
3. This has also been also attributed to the fact that the international situation in the 20th century was such that at times quick decisions required to be taken by the executive in times of emergency and thus administrative powers increased.
4. The state today has taken up functions which were earlier carried out by the private sector. It provides for transport, communication, energy, housing, banking, education, trade and commerce, etc.

5. The functions of the state today may be put into 5 broad categories, namely- as a protector, provider, entrepreneur, economic controller and arbiter.
6. A state consists of 3 organs- the legislature, executive and the judiciary. Out of the three, the executive is the most powerful these days.
7. Not only does the executive have powers of administration, it also has powers of legislation in the form of delegated legislation. Along with that, it has the power to conduct enquiries and investigations and give binding decisions as in case of administrative adjudication. Sometimes it may even exercise its discretion.
8. However, some sort of check must be exercised on such powers and the same is done with the help of administrative law. The administrative law helps in balancing public power and personal rights.
9. If exercised properly, vast administrative powers could lead to a well- functioning welfare state and if not exercised properly it would lead to despotism.
10. The administrative law provides several limitations on executive power in the form of rule of law, separation of powers, principles of natural justice, judicial and parliamentary controls, administrative appeals, ombudsman, etc.

1.3 DEFINITION AND SCOPE OF ADMINISTRATIVE LAW

2. According to KC Davis, ‘administrative law is the law concerning the powers and procedures of the administrative agencies including especially the law governing judicial review of administrative action.’ This explains the American approach to the subject.
3. As per Davis, an administrative agency is a governmental body other than a court or a legislature which affects the rights of private parties through adjudication and rulemaking.
4. However, this definition cannot be accepted in totality as even though it emphasizes on the procedure followed by administrative authorities, it does not talk about certain other functions of the executive which are non-adjudicatory in nature and do not at the same time fall within the scope of the legislative or quasi-judicial function. Also, it lays too much emphasis on judicial control and does not mention about other means of control such as parliamentary control, etc.

13.Thus, administrative law is required to exercise a system of checks and balances against such power. 14.The similarity between administrative law and constitutional law is to the extent that both deals with functions of the government and both form a part of the modern public law. 15.Differences may be discussed as follows CONSTITUTIONAL LAW ADMINISTRATIVE LAW It deals with the organs and functions of the state at rest. It deals with the organs and such functions in motion. It deals with the structure of the various organs of the state and regulates their relationship with each other and with individuals. It deals with the functions of various organs of the state and controls the exercise of powers by the executive. It lays down fundamental and basic principles. It fills in the details. It is based on a written constitution. It is based on statutes, precedent, etc. 16.However, there are similarities between the two such as availability of constitutional remedies, concern with affected rights of individuals or fundamental rights, etc. 17.As per several American and English authors, the difference between the two is more of degree, convenience and custom rather than that of logic and principle.

1.4 SEPARATION OF POWERS

1. The doctrine of separation of powers was given by French jurist and philosopher Montesquieu.
2. This doctrine has 3 meanings, namely a. The same person cannot be a member of more than one organ of the government.

b. One organ of the government cannot control or interfere with the functions of the other. c. One organ of the government cannot perform the functions of another.

3. This doctrine was theoretically very sound but posed certain practical problems such as (a) Its historical basis which describes the separation of powers as thriving in England is faulty. (b) It assumes that all 3organs of the government have completely distinct powers. This is wrong as anyone organ of the government performs at least some of the functions of the other two. (c) Also, complete separation is neither practical nor desirable. If the legislature were only to legislate, it could not punish anyone for its contempt. (d) The modern state is a welfare state characterized by complex socio- economic problems and the same cannot be solved with complete separation. (e) The primary aim of this doctrine was to ensure greater freedom for the people and strict separation may not necessarily ensure the same.
4. This doctrine is used more in the form of a system of checks and balances these days wherein every organ of the government performs some functions of the other 2 organs, thereby exercising a check on the arbitrary use of power.
5. This doctrine may be unreasonable and impractical, but it has helped in building a system of checks and balances
6. This doctrine has been used in a strict sense in the US wherein legislative powers rest with the Congress, executive powers with the President and judicial powers with the Supreme Court and the subordinate courts. All three organs exercise a system of checks and balances on each other and no one organ can encroach upon the power of another.
7. Although Montesquieu developed his theory based on the British constitution, at no point of time has there been a strict separation in the UK despite there being three different organs having three different functions which may even overlap at times. An example may be given of the Lord Chancellor who is the head of the judiciary, is the chairman of the House of Lords which is the legislature, is a member of the executive and is generally part of the cabinet.

Thus, the constitution is not the source but only a consequence of legal rights. It was emphasized that for rights to be secured, enforcement by courts was required rather than a mere declaration whereby such rights could easily be trampled upon. He used the example of the various Habeas Corpus Acts which went ahead to talk of the enforcement of rights rather than defining them.

8. One of the merits of Dicey’s theory was that it helped exercise a check on executive powers and kept administrative authorities within their limits. It became a touchstone to judge administrative acts.
9. However, even during Dicey’s time in 1885, there were several acts which conferred wide discretionary powers on the executive without allowing any sort of judicial review, thereby contravening this doctrine. 10.One of the major drawbacks of this theory lies in the fact that discretionary powers are regarded as being arbitrary and in a modern welfare state, administrative discretion is indispensable. 11.Another drawback is a presumption made by Dicey about the judiciary being the solution to all suits. His mistrust over the system of Droit Administration in France was wrong as this system exercised checks in a much better manner than the judiciary. The Conseil d’ Etat which exercised judicial control over the administration was, in fact, a part of the administration itself while being a court. 12.Dicey’s rule of law, however, has been identified in democracies across the world with rights of the people. The International Commission of Jurists in their Delhi Declaration, 1959 accepted the idea of rule of law as the modern form of the law of nature. 13.Though Dicey’s original rule of law cannot be accepted in totality, the modern rule of law as given by Davis has the following 7 connotations (a) Law and order (b) Fixed rules (c) Due process or fairness (d) Elimination of discretion (e) Principles of natural justice (f) Preference to ordinary courts over administrative tribunals (g) Judicial review of administrative actions 14.Rule of law is a part of the basic structure of the Indian constitution. A few examples of where it may be seen in the constitution are as follows (a) The preamble talks about justice, liberty and equality.

(b) There is provision for judicial review by the SC and the HC s for the enforcement of fundamental rights. (c) If there is any abuse of power by the executive, the same may be challenged on the grounds of malafide, etc. before a court of law. (d) Art. 21 provides that no person shall be deprived of his life or personal liberty except in accordance with the procedure established by law. This brings in the principles of natural justice, especially after the Maneka Gandhi case. (e) Art. 13 provides that all rules, ordinances, by-laws, orders, etc. would be regarded as ‘law’ and could thus be subjected to judicial review. (f) The Constitution is supreme, and all three organs of the government are below the constitution. (g) In India there is no rule of the King can do no wrong. (h) Art. 14 talks about equality before the law and equal protection of the law. Even the state and its officials are liable for torts and contracts and if any wrong is committed by an employee of the state, the state may be made liable for such actions. 15.However, in several areas, there exists a great deal of executive interference. This is primarily due to excessive delegation of powers by the legislature and the judiciary to the executive. Also, the executive has been given wide discretionary powers. Further, it is not just the executive but even the legislature which by passing demonic acts such as the Prevent Detention Act or the Maintenance of Internal Security Act encroaches upon the rights of the people. 16.In Chief Commissioner, Punjab v. Om Prakash, it was held that the rule of law is a characteristic feature of the constitution by which the judiciary may question any administrative action on the ground of legality especially when there is a violation of fundamental rights. 17.In ADM Jabalpur v. Shivkant Shukla (Habeas Corpus case), the freedoms under Art. 19 were suspended and enforceability of Art.s 14, 21 and 22 was suspended during emergency. Several persons were detained, and they approached the courts by filing writ petitions asking the courts to issue writs of habeas corpus. The majority held in this case that Art. 21 of the

(d) (d) Differences between legislative and non-legislative functions also come to the forefront when questions about sub-delegation arise.

6. However, it has been stated by the Committee on Ministers’ Powers that the test to differentiate between the two is that the power to formulate general laws, rules, etc. is legislative while the power to apply such rules and make orders with respect to specific cases is administrative.
7. This has been stated in the Generality and Prospectivity test as given in Union of India v. Cyanamide India Ltd. wherein an order of the Central Government fixing the maximum prices for the sale of certain bulk drugs was challenged on the grounds of violating the principles of natural justice as it was an administrative action. The HC, on the other hand, held that fixing prices here affects the rights of the public and not just particular drug manufacturers and hence it was a piece of delegated legislation and the principles of natural justice would not apply.
8. In K.I. Shepherd v. Union of India, the application of this rule was rejected. Herein the rights of bank employees were affected due to termination of services caused by the merger of certain banks.

2.1 NEED FOR DELEGATION OF LEGISLATIVE POWER

1. Factors leading to the growth of delegated legislation a. Increase in state functions owing to the creation of a welfare state in place of a laissez-faire state. b. It helps in saving the time of the legislature which is generally overburdened these days. c. It reduces the burden of the legislature. d. If each piece of legislation were to consist of all possible details, it would become too complex for the common man to understand. e. It would be better to leave such tasks to specialists who shall be in a better position to make such technical rules, regulations, etc. f. At times, it might become necessary to hold consultations with persons going to be affected by schemes and the same may be done by the administration which works at the grass-root level. g. Delegated legislation involves a lot of flexibility and opportunity for experimentation. h. It might not be possible for the legislature to foresee the possible effects of an act each time owing to the changing circumstances. i. Such legislation is required especially during times of emergency such as war, armed aggression, natural disasters, etc. wherein it might not be possible to the extensively lengthy and complex process of legislation.
2. Drawbacks of delegated legislation

(a) It has often been criticized as being an abdication of its powers/duties by the legislature. Many times, only the skeleton of the legislation is laid down, leaving even the policies and principles to be formulated by the executive. (b) It leads to arbitrariness as many times no guidelines are laid down using which the delegate may exercise his functions and thus he gets complete authority to do whatever he likes. (c) Delegated legislation has been criticized as being undemocratic as it is not discussed or criticized in parliament as is the case with any statute. It may not reflect the public opinion.

3. Thus, an effective system of checks and balances must be developed both at the legislative level by not allowing for excessive delegation and at the executive level by avoiding arbitrary use of power and application of mind.
4. Restraints on delegated legislation (a) In Britain, due to the prevalence of the principle of Parliamentary sovereignty, delegated legislation is also controlled by the Parliament. There is no restriction on the capacity of the Parliament to delegate and thus the courts cannot question such power. However, controls may be exercised by the Parliament if it so pleases and it cannot be compelled by any external agency to do so. (b) In the United States due to the presence of a written constitution and the principle of separation of powers, the Congress cannot delegate excessive amount of power as the same may be struck down by courts as being unconstitutional. Also, the US Supreme Court has evolved the doctrine of ‘Delegata Potestas Non-Potest Delegari’ by which, the Congress cannot delegate as it is technically the delegate of the people. However, keeping in mind practical considerations, it has been stated that the Congress may delegate provided it lays down discernible standards and policies which the executive must follow while exercising such powers. (c) In India, (i) The first important case concerning the limits of delegated legislation was that of Jatinder Nath v. Province of Bihar where it was held that there can be no delegation beyond conditional legislation. As per the principle of conditional legislation, the general piece of legislation is made by the legislature and it is to be enforced by the executive subject to the fulfilment of a condition. Whether or not the law shall take effect will depend upon whether such condition has been fulfilled by the administration. However, this principle was followed only at the time of independence.

statute after conferring such power as most present- day executives exercise almost complete power over the legislature as they themselves enjoy a majority in the legislature.

2.2 CONSTITUTIONALITY OF DELEGATED LEGISLATION

2.2.1 SKELETON LEGISLATION

1. Skeleton Legislation refers to such a legislation wherein the legislature provides for merely the basic skeleton and the gaps are filled in or the flesh and blood are provided by the Executive. In many cases, the judiciary has upheld the validity of such legislation.
2. 2. In Bagla v. Madhya Pradesh, it Ss. 3, 4 and 6 of the Essential Supplies Act, 1946 was challenged. S.3 laid down that the Central Government may lay down rules for the regulation of production, distribution and prices of essential commodities. This was challenged on the ground of excessive delegation stating that the legislature had not laid down any policy or standards. But, the SC held otherwise and stated that the basic policy has been provided in the form of maintenance or increase in supply and maintenance of prices in public interest. S.4 stated that the Central Government may further delegate its powers to its subordinate officers or such officers working under the State Government. This was challenged because a delegate may not sub-delegate. However, the SC held that as the officers to whom power may be sub-delegated have been mentioned in a list under S.4, there is in fact delegation by the legislature and not the executive as the latter cannot merely appoint anyone to perform the duty. S.6 provides that orders made by Centre under S.3 would have an effect even if they were inconsistent with any other act in force. This amounted to repeal of such other act or its provisions. It was thus challenged on the ground of repeal of a legislative act by way of delegated legislation (as discussed in the Delhi Laws Act case). However, the SC upheld the validity of this section and stated that it was provided only to by-pass any other law in force and not to repeal it. Also, even if any act gets repealed in the process, it is due to an act of the legislature and not of the delegate as S.6 was declared by the legislature itself.
3. In Bhatnagar and Company v. Union of India, it was held that the power of the Central Government under the Imports and Exports Act to restrict or prohibit the import or export of products of a specific category is valid even if no guidelines for deciding as to how such commodities are to be chosen is provided in the parent legislation. This is because the policy has been laid down in a preceding legislation- the Defense of India Act. Also, owing to the dynamic nature of imports or exports, it becomes impossible for the legislature to predict as to which goods need to be put into such category.
4. In DS Garewal v. Punjab, the provisions of the All India Services Act which empowered the Centre to make rules to regulate conditions of service was challenged as amounting to the excessive delegation. However, it was also

stated that the rules which would have already been in existence at the time of enactment of the statute would be deemed to be part of the act itself. Thus, the rules were held to be valid as they were adopted by the act itself and thus the underlying policy was established. 2.2.2 POWER OF INCLUSION AND EXCLUSION

1. This is a common legislative practice which provides that certain individuals, organizations, commodities, etc. be excluded or included from the purview of the Act by way of adding or omitting such names from a schedule annexed to the Act by the executive.
2. In Edward Mills Company v., the State of Ajmer, it was held that inclusion or exclusion of any sort of employment under the Minimum Wages Act so that such group of persons may or may not be entitled to the wages fixed under the act does NOT amount to the excessive delegation. This is because the policy is already laid down in the act which entitles such persons to minimum wages who do not receive the same due to unfair practices, unorganized labor, etc.
3. In Jalan Trading Company v. Mill Mazdoor Union, it was held that the government may decide to exempt certain establishments from the ambit of the Payment of Bonus Act taking into consideration their financial capacity, etc. and the same shall not amount to being excessive delegation as the policy has already been laid down by the statute.
4. In Hamdard Dawakhana v. Union of India, for the first time after the Delhi Laws Act case, a Central Act was held to be ultra vires. Herein, S.3 of the Drug and Magic Remedies (Objectionable Advertisements) Act was challenged. This section contained a list of drugs whose advertisement was prohibited and entitled the government to add to or remove from such list. This provision was held to be unconstitutional as there was no specific standard or guideline laid down to be considered by the executive while adding or removing names of such drugs. 2.2.3 POWER OF MODIFICATION OF THE STATUTE
5. This is also known as the power to remove difficulties or the Henry VIII Clause.
6. This power is given so that the executive in times of need might change any provision of the parent statute.

2. However, the executive may be asked to specify the rates of tax available provided the maximum and minimum rates have been provided in the statute itself.
3. The executive may also exempt certain persons or commodities from such taxation.
4. In Orient Weaver Mills v. India, it was held that the provision empowering the executive from exempting certain excisable goods from duties leviable on such goods does not amount to the excessive delegation.
5. Refer to Gwalior Rayon Company case as well. (mentioned previously) 6. Power to impose taxes or duties may even be extended to municipal bodies taking into consideration the nature of the body to whom such authority is being delegated.

2.3 CONSULTATION OF AFFECTED INTEREST AND PUBLIC PARTICIPATION IN

RULEMAKING

1. Public participation leads to the democratization of the process of delegated legislation. It helps in getting the views of affected parties to make a better piece of legislation. It also helps the persons affected as their grievances are heard and suggestions are taken into consideration.
2. It has been on the rise these days due to the involvement of several organizations which help in eliciting public opinion and bringing them before the government.
3. However, in order that such participation is allowed, a provision with respect to the same must be made in the parent act.
4. In Tulsipur Sugar Company v. Notified Area Committee, Tulsipur, the plaintiff challenged an order made by the government which extended the limits of the municipal boundaries without making a prior publication thereby not giving anyone affected a reasonable opportunity to be heard. The court held that the statute did not provide for any prior publication of such rules and hence the government is under no obligation to do the same. Also, a reasonable opportunity of being heard cannot be claimed as it is a legislative function whereby principles of natural justice need not be followed.
5. As per the General Clauses Act, for the term ‘previous publication’ the draft of proposed rules must be published by the concerned authority in a manner it deems fit. It must specify the time and date of such consideration and must keep in mind the objections/suggestions while finalizing the rules.

6. One of the major issues concerned with such pre-publication of draft rules is that there is no time lag specified which is to be maintained between the publication of draft rules and final publication. This may allow the authorities to keep a very small-time gap thereby making the entire process a sham.
7. Also, the publication is to be made by the rulemaking authority in the manner it deems fit and thus too much is dependent on executive discretion.
8. Further, publication of the rules in the Gazette is conclusive proof of the fact that the rules have been duly made.
9. In Lachmi Narain, at least a 3 months’ notice to give effect to a modification to a schedule in the sales tax act was considered a matter of legislative policy and necessary for taking into consideration of affected interests. 10.In Raza Buland Sugar Company v. Rampur Municipality, the act stipulated that publication be made in a newspaper published in Hindi, but the municipality published it in an Urdu daily. The court held the same to be valid claiming there has been substantial compliance with the provisions of the statute as the Urdu daily had a much wider circulation in the area.
10. In England, there is no statutory mention of consultation of interests but never the less the same is followed as a general departmental practice.
11. In the US, pre-publication is made mandatory under S.553 of the Administrative Procedure Act unless the authority feels that the use of such procedure would be impracticable, unnecessary or contrary to public interest.

2.4 PUBLICATION OF DELEGATED LEGISLATION

1. In England, the Statutory Instruments Act requires the publication of delegated legislation.
2. In the US, only after the Panama case in 1935 was such need felt. Thus, the Federal Register Act and the Administrative Procedure Act came into force.
3. In India, the publication must be done is provided in the parent act. But, as a matter of practice rules are published in the Gazette of India.
4. In 1960, the Central Government commenced the publication of various orders under the title of ‘statutory rules and orders’.
5. In Harla v. Rajasthan, it was held that promulgation or publication of some sort is required so that people understand what they are required to do or not do.