Administrative law deals with the powers of the administrative authorities, the manner in which the powers exercised and the remedies which are available to the aggrieved person, when those powers are abused by these authorities.
The administrative process has come to stay and it has to be accepted as a necessary evil in the progressive societies, particularly in welfare state, where may scheme for the progress of society are prepared and Administered by the Government. The execution and implementation of this program may adversely affect the right of citizen. The actual problem is to reconcile social welfare with the rights of individual subjects.
As rightly observed by, Lord Denning:
“Properly exercised, the new powers of the executive lead to the Welfare State: but abused they least to the Totalitarian State.”
- In 1885 Albert Venn Dicey, a British jurist, rejected the whole concept of administrative law.
- Thus, the numerous statutory discretionary powers given to the executives and administrative authorities and the control exercised over them were all disregarded to be able to form a separate branch of law by the legal thinkers. Until 20th century, administrative law was not accepted as a separated branch of law.
- The Lord Donoughmore Committee, in 1929, recommended for better publication and control of subordinate legislation.
- The principle, king cannot do wrong, was abolished and the scope of Administrative Law expanded by virtue of the Crow Proceeding Act, 1947 which allowed initiation civil proceedings against the Crow as against any private person.
- In 1958, Tribunals and Inquiries Act was passed for better control and supervision of Administrative Decisions.
- First case where the existence of Administrative Law in the United Kingdom was declared:
Breen V Amalgamated Engineering Union  2 QB 175
UNITED STATES OF AMERICA
- Despite of many legal scholars lie Frank Good now and Ernst Freund had already authorized few books on Administrative law, the United States of America ignored the existence of administrative law until it grew up to become the fourth branch of the state.
- In 1933, special committee was appointed to determine, judicial control or administrative agencies.
- In 1946, the Administrative Procedure Act was passed which provided for judicial control over administrative actions.
The Mauryas and the Guptas of ancient India had a centralized administrative system.
With the coming of Britishers, India went through changes when Legislations regulating administrative actions were passed.
Post independence, India adopted to become a welfare state, which increased social actions. Eventually, when activities and powers of the government and administrative authorities increased, it lead to the introduction of :
- Rule of Law
- Judicial Review of State actions, etc.
DEVELOPMENT IN INDIA
The Law Commission in it’s XIVth Report explicitly mentions the reason why administrative law grew exponentially and its need in the current scenario:
“Society in the 20th century has become exceedingly complex and governmental functions have multiplied. The change in the scope and character of the Government from negative to positive, which is from the laissez-faire to the public service state has resulted in the concentration of considerable power in the hands of the executive branch of Government.”
Societal oriented evolutions lead an increase in interaction between citizens and administrative bodies because whether it is then or now, such interactions have evolved new processes, innovations, techniques to deal with any new nature of problems that arise, to ensure the maximum welfare of people.
Interactions outpaced the need to empower administrative agencies, through:
- Discretionary power they possess,
- Unlike legislature or judiciary, have right to change or amend unsuitable or irrelevant rules without much delay in dealing with the problems single handedly,
- There extensive and diverse character (as they make policies, provide leadership and support legislature, and execute and administer the law),
- Finally, while undergoing traditional functions, administrative agencies were needed for exercising legislative power and issue plethora of rules, bye-laws and orders of various types.
REASON OF GROWTH
There could be 2 outlooks towards reasons of growth of Administrative Law:
- On bigger picture- stages of evolution (Laissez- faire, dogma of collectivism and social welfare)
- Into the core- series of events.
On bigger picture-
In the early 20th century, political gospel of laissez-faire was preached. The principles of laissez-faire were-
- Minimum control of Government
- Free enterprise
- Law and order not counted as subjects of sate
- Power said to be concentrated in the hand of an individual
CRISES OF LAISSEZ- FAIRE
- Concentration of powers
- Which led to human misery
- Widening the inadvertent gap between the poor and the rich
- Authoritarian rule
- Economic disparity
Dogma of Collectivism:
Principle of collectivism was all about-
- Synchronization between sate and individual
- State took control over actions of individuals
- State stood up to take responsibility for the individual’s life, liberty ad property.
- State thrives on the principle of providing justice (whether social, economic or political).
- Mindset of government to interest the citizen.
- The constitution envisions to an egalitarian society.
Into the core- series of events
The negative policy of maintaining ‘law and order’ (laissez-faire), was given up. The state has not confined it’s scope to the traditional and minimum functions of defense and administration of justice but has adopted positive policy to welfare state.
Due to the emergence of Industrial Revolution in England and then factory system in our country. There arose a need for facilities, for which legislations were enacted and accordingly administrative authorities were to make schemes, lead to the growth in Administrative law.
Entertaining emergency situations:
Enacting legislations and getting assent from the President is all a lengthy process where it really comforting at administrative agency’s part to meet emergency situations, by enjoying in it’s own hands.
Inadequacy of judicial system:
Being slow, costly, complex and formalistic, judicial system was proved inadequate to decide and settle all types of disputes. It was already overburdened and it was not possible to expect speedy disposal of even very important matters. These burdening problems could not be solved by mere interpretation of provision of any statute, rather having a better approach.
Inadequate legislative process:
It had no time and technique to deal with all the deals. It was impossible for it to lay down detailed rules and procedures, and even when detailed procedures were made by the legislature, they were found to be defective at implementation. Therefore it was felt necessary to delegate some powers to the administrative authorities.
Scope for experiment:
Unlike legislature it is not necessary to continue a rule until commencement of the next session of the legislature. But in administrative process, 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, which is no doubt comparatively flexible character.
Technicalities, can be avoided:
Administrative law represents functional rather the theoretical and legalistic approach. The traditional judiciary is conservative, rigid and technical. It was not possible for courts to decide the cases without formalities and technicalities. 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.
Authorities with preventive measures:
Unlike regular courts of law, they don’t have to wait for parties to come before them with disputes. In many case, these preventive actions may prove to be more effective and useful than punishing a person after he has committed a breach of any provision or law. As Freeman says, “Inspection and grading of meat answers the consumer’s need more adequately than does a right to sue the seller after the consumer is injured.
Administrative authorities can take effective steps for enforcement of the aforesaid preventive measures; like suspension, revocation and cancellation of license, destruction of contaminated articles, etc., which are not generally available through regular courts of law.
In consonance with to modern beliefs of man, the attainment of socio- economic justice being a conscious goal of state policy there is a vast and inevitable increase in the frequency with which ordinary citizens come into relationship of direct encounter with state power holder.
The administrative law is an important weapon for bringing about harmony between power and justice. The emergence of the social welfare has:
- Led to state activism,
- Phenomenal increase in the area of state operation
- Has taken over number of functions, which were previously left to private enterprise,
- State today pervades every aspect of human life.
- Modern state to function as-
- economic controller and
CONSTITUTION AND ADMINISTRATIVE LAW
- Whether there is any distinction between constitution law and administrative law.
- The subject of administrative law was dealt with and discussed in the books of constitutional law.
- No separate and independent treatment was given to it, as in many definitions of administrative law, it was included in constitution law.
Both are considered to be same as-
- Sources of both are same and
- Interrelated and complimentary to each other belonging to one and the same family.
Despite of no strict demarcation, still distinct from each other. According to Maitland,
‘While constitutional law deals of the functions are left to administrative law’.
- According to Hood Phillips, “Constitutional law is concerned is concerned with the organization and functions of government at rest whilst administrative law is concerned with that organization and those functions in motion”.
- Opinion of English and American authors is that the distinction between constitutional law and administration 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 remarked:“It is logically impossible to distinguish administrative law from constitutional law and all attempts to do so are artificial”.
Indian Administrative Law-
In Indian, The Constitution is supreme with discretionary powers at the other side in England the parliament is supreme. Law enacted but the parliament is authoritative and fully admired. No person can challenge the validity of such law but only Ultra Vires statute can challenge under which it was taken.
Beside, Law enacted by the British parliament is the highest form of law and prevails over every other form of Law. In our India on the other hand by the written Constitution, power of Judicial Review is on Supreme Court and High Court, which can even be challenged as Ultra Vires.
Testimonies of the validity of such challenges are also defined as:
- The action must be taken in accordance with rules and regulations,
- Rules regulation and parent acts are also to be consonance to the constitution,.
- Rules must be in accordance, relevant with statute,
- If challenge converted and accepted in amendment, such amendment should be conformity with Basic structure.
So, the undertaking of Ultra Vires phenomenon is itself a signal of delegated powers among some accountable authorities for it’s assigned power, which are administrative agencies running under administrative law.
ADMINISTRATIVE LAW VERSUS CONSTITUTIONAL LAW
- Influence – The constitution is the superlative law of the state of which all other laws of the land are subject to it.
- Establishment- Primarily, concerned with the exercise of powers by administrative bodies or executive actions.
- Working-Establishes the general rights including basic human rights and duties.
- Dependency-Derive the authoritative principles from the constitutional law like separation of powers, independence of the judiciary, nature justice and reasonableness of administrative actions.
- Influence –Administrative law, rules and regulations are subject to the constitution, where administrative law is inconsistent with the Constitution, the former will easily be declared unconstitutional.
- Establishment– Establishes the supreme power of the state, executive, judiciary and parliament and set general principles for the operations.
- Working-Set the mechanism and procedures on how the rights are to be administered both at the supreme level and by the delegated authorities.
- Dependency-Lays down the foundation for administrative law principles of natural justice.
Generally, both regulate the powers of the legislature, executive and the judiciary, the operation of the supreme powers of the state depends on the constitution, and administrative law draws the equilibrium on the exercise of powers. The laws complement each other, thus there is not an easy application of constitutional law without administrative law and vice-versa.
Droit administrative is the French Administrative law which is considered widely popular and old. Through which many administrative provisions in other countries have been influenced from.
Napoleon Bonaparte founded the “Droit Administratif” and formed the Conseil d’Etat.He also passed a law restricting the jurisdiction of courts on administrative subjects.
Waline’s, three main features of the Droit Administratif are as follows-
- The power of administration to act suo moto and impose those powers directly on the subject duty to obey it’s discretion,
- The power of the administration to take decisions and to execute them suo moto may be exercised only within the ‘ambit of law’, which protects individual liberty against administrative arbitrariness and
- The existence of specialized administrative jurisdiction.
Dicey was critic of the Droit Administratif due to two reasons-
- Firstly, because the government and every servant of it is a representative of the nation and holds some special rights, privileges that are not the same as every citizen of the country.( thus, unlike French law, an individual’s relation with the state is not on the same level as the interaction between two ordinary individuals)
- Secondly, that the government should not be bound by restrictions by the ordinary courts and must be free of their jurisdiction. Therefore, Dicey sought that such a system is inapplicable to English Law.