STUDY MATERIAL for ADMINISTRATIVE LAW

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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.

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Important ADMINISTRATIVE LAW Question And Answer

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.”

The main object of the study of administrative law is to unravel the way in which these administrative authorities could be kept within their limits so that the discretionary powers may not be turned into arbitrary powers.

Schwartz divides Administrative Law in three parts;

1. The powers vested in administrative agencies;
2. The requirements imposed by law upon the exercise of those powers; and
3. Remedies available against unlawful administrative actions. It is a harsh fact of life that

phenomenal growth of administrative power as a byproduct of an intensive form of government, do necessary for development and growth, at the times spells negation of people’s rights and values. Though administrative law may not be concerned with the substantive law as such, yet, as Griffith and Street themselves have somewhat recognized, a study of substantial law becomes necessary for appreciating the powers of the administration and for controlling the same. For instance, whether the principles of natural justice are to be observed by an authority or not depends, to a great extent, upon the kind of action it is empowered to take, and to find this, one will need to look into the statute under which it functions. Again, whether the authority has abused its power has to be decided with reference to the substantive provisions. Here comes the need, importance and purpose of administrative law. Administrative law thus becomes Dharma which conduces to the stability and growth of society, maintenance of a just social order, and welfare of mankind by reconciling power with Liberty. It seeks to channelize administrative powers to achieve the basic aim of any civilized society, that is, growth with
Liberty. Thus, Administrative law goes beyond legalism and the presence a principled regulation of administrative space, whether domestic or global, which can be practically regulated for the expansion of human freedoms. Therefore, today, Administrative law represents the way of conceptualizing and articulating a new domestic and global social economic order. Without a good system of administrative law any society order dies because of its own administrative weight like a black hole which is a dying neutron star that collapses due to its own gravity. Administrative law, therefore, becomes that body of a reasonable limitations and affirmative action parameters which are developed and operationalized by the legislature and the courts to maintain and sustain a Rule of law Society.

The impact and Implications of the Doctrine of Separation of Power and The Rule of Law on the Administrative law.

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

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:
I. Supremacy of law
II. Equality before law
III. Predominance of legal spirit.

I. Supremacy of law
Absence of discretionary power in the hands of the government officials. By this Dicey implies that justice must be done through known principles. Discretion implies absence of rules, hence in every exercise of discretion there is room for arbitrariness. Explaining the first principle, Dicey stated that rule of law means the absolute supremacy or predominance of regular law as opposed to the influence of arbitrary power or wide discretionary power. It excludes the existence of arbitrariness, of prerogative or even wide discretionary power on the part of the Government. According to him the Englishmen were ruled by the law and law alone. A man may be punished for a breach of law, but can be punished for nothing else. As Wade says the rule of law requires that the Government should be subject to the
law, rather than the law subject to the Government.

According to this doctrine, no man can be arrested, punished or be lawfully made to suffer in body or goods except by due process of law and for a breach of law established in the ordinary legal manner before the ordinary courts of the land. Dicey described this principle as ‘the central and most characteristic feature’ of Common Law. The first principle is the recognition of Cardinal principle of Democratic governments as opposed to arbitrary and autocratic governments which lays down that no functionary of the government should have wide arbitrary or discretionary powers to interfere with the liberty and freedom of the people. But here Dicey was not referring to a wide measure or discretion which is incapable in any modern government. He was certainly indicating the position in some countries where police authorities exercised wide arbitrary or discretionary power of imprisonment and punishment outside the ordinary legal system.

II. Equality before law

Explaining the second principle of the rule of law, Dicey stated that there must be equality before the law or the equal subjection of all classes to the ordinary law of the land administered by the ordinary courts of law. According to him, in England, all persons were 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
d. 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.”

This principle, in fact, 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 people.

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.” According to Dicey, any encroachment on the jurisdiction of the courts and any restrictions on the subject’s unimpeded access to them are bound to jeopardize his rights.

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STUDY MATERIAL for ADMINISTRATIVE LAW