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KLE LAW ACADEMY BELAGAVI
(Constituent Colleges: KLE Society’s Law College, Bengaluru, Gurusiddappa Kotambri Law College, Hubballi, S.A. Manvi Law College, Gadag, KLE Society’s B.V. Bellad Law College, Belagavi, KLE Law College, Chikodi, and KLE College of Law, Kalamboli, Navi Mumbai)
STUDY MATERIAL
for
ADMINISTRATIVE LAW
Prepared as per the syllabus prescribed by Karnataka State Law University (KSLU), Hubballi
Compiled by
Mr. Ayush Jha, Asst. Prof.
Ms. Tilaka N.S., Asst. Prof.
Reviewed by
Dr. Manojkumar Hiremath, Asst. Prof.
K.L.E. Society's Law College, Bengaluru
This study material is intended to be used as supplementary material to the online classes and recorded video lectures. It is prepared for the sole purpose of guiding the students in preparation for their examinations. Utmost care has been taken to ensure the accuracy of the content. However, it is stressed that this material is not meant to be used as a replacement for textbooks or commentaries on the subject. This is a compilation and the authors take no credit for the originality of the content. Acknowledgement, wherever due, has been provided.
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
Unit-V
(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 VI-
Corporates and Public Undertakings – Control of statutory corporations and public undertakings - Administrative deviance – Corruption and mal administration – Control mechanism
Ombudsman in India (Lok pal and Lokayukta) – Central Vigilance Commission – Parliamentary Committees – Commission of Enquiry
INTRODUCTION
Administrative law is a heuristic science. It is a branch of public law which is essentially anti- authoritarian. It strives to develop a rule of law society based on fairness, reasonableness and justice. Administrative law deals fundamentally with law relating to administration and basic foundation of the administration.
Principles of administrative law are not extraconstitutional, they emerged from Articles 14 and 21 of the Constitution. It is true to say with Holland and Maitland that administrative law is part of Constitutional law. The general principles are relating to the organization, powers and functions of the organs of the state legislative, executive and judicial and their relationships are interalia are dealt with in the Constitution.
Administrative law deals with other powers and the functions of the administrative authorities it also includes the matters relating to civil service, public departments, public corporations, local authorities and other statutory bodies exercising quasi-judicial functions. As Ivor Jennings rightly points out the subject matter of administrative law is public administration. Administrative law defines and determines the organization, functions, powers and the duties of administrative authorities.
The most significant and outstanding development of the twentieth century is the rapid growth of administrative law. Though administrative law has been in existence, in one form or the other, before the 20th century, it is in this century that the philosophy as to the role and function of the State has undergone a radical change. Administrative law as is separate branch of legal discipline, especially in India, came to be recognized only by the middle of the 20th century.
The governmental functions have multiplied by leaps and bounds. Today, the State is not merely a police State, exercising sovereign functions, but as a progressive democratic State, it seeks to ensure social security and social welfare for the common man, regulates the industrial relations, exercises control over the production, manufacture and distribution of essential commodities, starts many enterprises, tries to achieve equality for all and ensures equal pay for equal work.
It improves slums, looks after the health and morals of the people, provides education to children and takes all the steps which social justice demands. In short, the modern State takes care of its citizens from ‘cradle to grave’.
All these developments have widened the scope and ambit of administrative law. Today the administration is ubiquitous and impinges freely and deeply on every aspect of an individual's life. Therefore, administrative law has become a major area for study and research.
Growth of Administrative Law
Administrative law has been characterized as the most outstanding legal development of the 20th century. It does not mean, however, that there was no administrative law in any country before the 20th century. Being related to public administration, administrative law should be deemed to have been in existence in one form or another in every country having some form of government. It is as ancient as the administration itself as it is a concomitant of organized administration.
The opening statement signifies that administrative law has grown and developed tremendously, in quantity, quality and a relative significance, in the 20th century that it has become more articulate and definite as a system in Democratic countries that it has assumed a more recognizable form in the present century so much so that it has come to be identified as a branch of public law by itself, distinct and separate from Constitutional law, if its subject matter is of independent study and investigation in its own right then rapid growth of administer law in modern times is the direct result of the growth of administrative powers and functions.
Earlier the state was characterized as the law and order state and its role was conceived to be negative as its interest extended primarily to defending the country from external aggression, maintaining law and order within the country, dispensing 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.
fixing. And, therefore, it was felt necessary to delegate some powers to the administrative authorities.
- 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.
- 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 they can take a practical view of the matter to decide complex problems.
- Administrative authorities can take preventive measures, e.g. licensing, rate fixing, etc. Unlike regular courts of law, they need not wait for parties to come before them with disputes. In many cases, these preventive actions may prove to be more effective and useful than punishing a person after committing of a breach of any provision of law or law. As Freeman says, " Meat inspection and grading respond more adequately to the consumer’s needs than does the right to sue the seller after the consumer is injured."
- Administrative authorities may take effective steps for enforcement of the aforesaid preventive measures, such as suspension, revocation and cancellation of licenses, destruction of contaminated articles, etc. which are not generally available through regular courts of law.
Today in India, the administrative process has grown so much that it will not be out of place to say that today we are not governed but administered. In this context, the Law Commission of India rightly observed the Rule of law and Judicial review acquire greater significance in a welfare state. The vast amount of legislation which has been enacted during the last three years by the union and states, a great deal of which impinges in a variety of ways on our lives and occupations. Much of it also confers large powers on the executive. The greater, therefore, is the need for ceaseless enforcement of the Rule of law, so that the executive may not, in a belief in its monopoly of wisdom and its zeal for administrative efficiency, overstep the bounds of its power and spread its tentacles into the domains, well the citizen should be free to enjoy the Liberty guaranteed to him by the Constitution.
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.
Definition of Administrative Law It is indeed difficult to evolve a scientific, precise and satisfactory definition of Administrative Law. Many jurists have made attempts to define it, but none of the definitions has completely demarcated the nature, scope and content of administrative law. Either the definitions are too broad and include much more than necessary or they are too narrow and do not include all essential ingredients. For some it is the law relating to the control of powers of the government.
The main object of this law is to protect individual rights. Others place greater emphasis upon rules which are designed to ensure that the administration effectively performs the tasks assigned to it. Yet others highlight the principal objective of Administrative Law as ensuring governmental accountability, and fostering participation by interested parties in the decision- making process.
Administrative law besides touching all branches of government, touches administrative and quasi administrative agencies that is corporations, commissions, universities and sometimes even private organizations. Furthermore, administrative law is made up of not only of legislative and executive rules and a large body of presidents but also of functional formulations, for every exercise of discretion forms a rule for future action. Early English writers did not differentiate between administrative law and Constitutional law and, therefore, the definition they attempted was too broad and general.
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.
Davis includes the study of administrative rulemaking and rule adjudication but excludes rule application which according to him, belongs to the domain of public administration. In one respect, this definition is proper as it puts emphasis on procedure followed by administrative agencies in exercising their powers. It does not include the enormous mass of substantive law produced by the agencies. An administrative agency, according to Davis, is a governmental authority, other than a code and other than a legislative body, which affects the rights of private parties through either adjudication or rulemaking.
The difficulty in accepting this definition however, is that it does not include many non- adjudicative and yet administrative functions of the administration which cannot be characterized as legislative or quasi-judicial. Another difficulty with this definition is that it puts an emphasis on the control of the administrative functions by the judiciary, but does not study other equally important controls, example parliamentary control or of delegated legislation, control through administrative appeals or revisions and the like.
Garner also adopts the American approach advocated by Casey Davis According to him, Administrative law may be described as those rules which are recognized by the courts as law and which relate to and regulate the administration of government.
According to Wade, administrative law is the law relating to the control of governmental power. According to him the primary object of administrative law is to keep the powers of the government within their legal bounds so as to protect the citizens against their abuse. The powerful engines of authority must be prevented from running amok.
Undoubtedly this definition places considerable emphasis on the object of Administrative law by touching the heart of the subject. It does not, however, define the subject. It also does not deal with the powers and duties of administrative authorities nor with the procedure required to be followed by them.
Griffith and Street, According to Griffith and Street , the main object of administrative law is the operation and control of administrative authorities. It must deal with three aspects
- What sort of power does the administration exercise?
- What are the limits of those powers?
- 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
- what are the procedures followed by the administrative authorities?
- 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.
On an analysis of the above definitions it may be submitted 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
In the UK, since there is no written Constitution, the bulk source of administrative law is derived from the decisions delivered by the superior courts, the customary practices that are followed in the course of administration and so on.
In India there is a written Constitution which is considered as a grund norm. Till today there is no legislation enacted either by the parliament or state legislature exclusively on administrative law. In the absence of legislations, the main sources of administrative law are rules, regulations, orders, notifications, bye-laws, schemes, governmental resolutions, memorandums, department circulars etc. There are also legislations which provide for the establishment of tribunals. For example, the Industrial Disputes Act, 1947 provides for the establishment of national tribunals, industrial tribunals and labour courts. There are other legislations for establishing special courts, but all these legislations provide different procedures and different powers for functioning of the tribunals. Therefore, for the purpose of attaining uniformity in maintaining procedures and for prescribing powers, there is a need for comprehensive legislation on administrative law in India.
Constitutional Law and Administrative Law Sometimes, a question is asked as to whether there is any distinction between Constitutional law and Administrative law. Till recently, the subject of administrative law was dealt with and discussed in the books of Constitutional law and no separate and independent treatment was given to it. In many definitions of Administrative law, it was included in Constitutional law.
Though in essence Constitutional law does not differ from administrative law in as much as both are concerned with functions of the Government and both are a part of public law in the modern State and the sources of both are the same and they are thus inter-related and complementary to each other belonging to one and the same family. Strict demarcation, therefore, is not possible, yet there is a distinction between the two. According to Maitland, while Constitutional law deals with structure and the broader rules which regulate the functions, the details of the functions are left to Administrative law.
According to Hood Phillips , “Constitutional law is concerned with the organization and functions of Government at rest while administrative law is concerned with that organization and those functions in motion.”
But the opinion of English and American authors is that the distinction between constitutional law and administrative law is one of degree, convenience and custom rather than that of logic and principle. It is not essential and fundamental in character. Keith rightly remarks: “It is logically impossible to distinguish administrative law from Constitutional law and all attempts to do so are artificial.”
India has a written Constitution. While 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 citizen. Administrative law is that part of 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, while Constitutional law is concerned with Constitutional status of ministers and civil servants, administrative law is concerned with the organization of the service and the proper working of various departments of the Government.
Nature & Scope of Administrative Law Administrative 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 by these authorities.
As discussed above, the administrative process has come to stay and it has to be accepted as a necessary evil in all progressive societies, particularly in a welfare state, where many schemes for the progress of society are prepared and administered by the government. The execution and implementation of this programme may adversely affect the rights of citizens. The actual problem is to reconcile social welfare with the rights of individual subjects. As has been rightly observed by Lord Denning: “Properly exercised, the new powers of the executive lead to the Welfare State; but abused they lead to the Totalitarian State.”
Thus, four basic bricks of the foundation of any administrative law may be identified as
- Checking abuse of administrative power
- Ensuring citizens an impartial determination of their disputes by officials
- Protecting citizens from an unauthorized encroachment on their rights and interest
- Making those who exercise public power accountable to the people
- 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 individuals 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 itself 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.
- 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 re consolation of power with liberty. When the administrative process started rising after the death of laissez 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 administrative powers.
A satisfactory and a proper formulation to define the scope, content and ambit of administrative law appears to be as follows:
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.
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 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. It is a modern name for natural law. 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 define law rather than the law defining the Rule of law.
The doctrine of separation of powers is an animation of the rule of law and its roots also lie in the concept of natural law because both aim at progressive diminution of the exercise of arbitrary power necessary for protecting the life, liberty and dignity of the individual. It is an organic flexible doctrine which can be molded to suit the requirements of governance, but it’s inherent fundamentals and the rationality must not be compromised. That is accumulation of power is a definition of tyranny.
According to Jain and Jain, “If the ‘Rule of Law’, as enunciated by Dicey, affected the growth of Administrative Law in Britain, the doctrine of ‘Separation of Powers’ had an intimate impact on the development of Administrative Law in USA.” Davis also stated, “Probably, the principal doctrinal barrier to the development of the administrative process has been the theory of separation of powers."
DOCTRINE OF RULE OF LAW
One of the basic principles of the English Constitution is the Rule of law. This doctrine is accepted in the US and Indian Constitution. The entire basis of administrative law is the doctrine of rule of law. Sir Edward Coke, Chief Justice in James I's reign, was the originator of this concept. In a battle against the King, he maintained successfully that the King should be under God and the Law, and he established the supremacy of the law against the executive. Dicey developed this theory of Coke in his classic work the Law and the Constitution published in the year 1885.
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” is to be understood neither as a “rule” nor a “law”. It is generally understood as a doctrine of “State political morality” which concentrates on the rule of law in securing a “correct balance” between “rights” and “powers”, between individuals and the state in any free and civil society. This balance may be drawn by “law” based on freedom, justice, equality, and accountability. Therefore, it infuses law with moral qualities. “Rule of proper law balances the needs of the society and the individual.”
The term “rule of law” is derived from the French Phrase la principe de legalite (the principle of legality) which refers to a government based on principles of law and not of men. In this sense la principe de legalite was opposed to arbitrary powers.
Rule of law is the supreme manifestation of human civilization and culture and is a new ' Lingua franca’ of global moral thought. It is an eternal value of Constitutionalism and an inherent attribute of democracy and good governance.
Rule of law Embodies the doctrine of supremacy of law. It is a basic and fundamental necessity for a disciplined and organized community.
The concept of the rule of law is an animation of natural law and remains as a historical ideal which makes a powerful appeal even today to be ruled by law not by a powerful man.
Dicey’s Concept of Rule of Law
