Introduction:

• Administrative authority - governmental agency that adopts or enforces regulations and

guidelines. Is the branch’s scope only limited to the Executive?
• Administrative law looks into the aspects of power and accountability
• Lord Acton said “Power tends to corrupt, and absolute power corrupts absolutely”
• Broadly looks at laws relating to administration and those made by the administration.
• Comes under Public law.

Administrative law deals with

• the powers and functions of the administrative authorities,
• the manner in which the powers are to be exercised and
• remedies which are available to the aggrieved persons when those powers are abused
by these authorities.
Challenges:

• Essentially Unwritten, Uncodified or “judge-made” Law. It is also called as a law

developed by the judiciary; thereby reduced to a set of rules/guidelines/principles.

• The aim of administrative law is not to take away the discretionary powers of the
Executive but to bring them in consonance with the 'Rule of law’.

• Limitations to Judge-made law:

• Volatility: depends on the judge, context

• Reactive: Responding to a issue at hand

• All pervasive: Close link between Administrative law and every other area of law
Reasons for growth of administrative law:

1. Radical change in the philosophy of the role played by the State: Laissez faire (minimum
government control, maximum free enterprise and contractual freedom) to Social welfare
state (state as a vehicle of socio-economic regeneration and welfare of the people).

2. The legislative process was inadequate. It had no time and technique to deal with all the
details.

3. Legislative process is rigid in character, while the administrative process is flexible.

There is scope for experiments in administrative process.

4. The judicial system was proved to be an inadequate to decide and settle all types of
disputes. It was slow, costly, inept, complex and formalistic.
5. The traditional judiciary is conservative, rigid and technical. It is impossible for courts to

decide cases without formality and technicality.

6. Administrative authorities can take preventive measures. Unlike regular courts of law,

they do not have to wait for parties to come before them with disputes.

7. Administrative authorities can take effective steps for the enforcement of the aforesaid

preventive measures e.g. suspension, revocation and cancellation of license, destruction of

contaminated articles etc., which are not generally available through regular courts of law.
Parens Patriae:
• The Doctrine of Parens Patriae, means "parent of the nation" is a legal principle that grants
the state the inherent power and authority to act as the guardian for those who are unable to
care for themselves.
• In India, this doctrine reflects the nation's commitment to protect the welfare and interests of
its citizens.
• The doctrine developed in England from the common law, concept of the royal prerogative.
The Sovereign was "the general guardian of all infants, idiots, and lunatics" and represented
their interest as Parens Patriae.
Parens Patriae:
English law required the following four elements before granting the sovereign Parens
Patriae representation:
1. The party is legally incapable of securing his rights;
2. The sovereign or his representative is the only alternative;
3. The sovereign has a duty to protect the subject's welfare; and
4. The sovereign has no personal interest and acts on someone else's behalf.

• Hadiya case (Kerala HC 2017): Love Jihad case

Modern functions of the State:
• The functions of a modern state may broadly be placed into five categories, viz., the state as
protector, provider, entrepreneur, regulator, and arbiter.
• As protector, the state protects the country against external aggression and internal
disorder.
• As provider, the state provides social security, social welfare and a minimum standard of
living to all.
• As regulator, the state regulates and controls various activities of the community. Urban
and town planning, environmental control, regulation of economic activities etc.
• As entrepreneur, the state engages in public enterprise.
• As an arbiter/umpire, the state arbitrates between competing social interests in the society.
Rule of Law:
According to Dicey, wherever there is discretion, there is room for arbitrariness. He attributed
three meanings to the doctrine:
1. Supremacy of law: Absolute supremacy of law and no man is punishable or can lawfully be
made to suffer in body or goods except for a distinct breach of law established in the ordinary
legal manner before the courts of the land. Dicey was of the view that all individuals whether
if he is a common man or government authority are bound to obey the law. He is of the view
that no man can be punished for any thing else than a breach of law which is already
established. Also, that the alleged offence is required to be proved before the ordinary courts
in accordance with ordinary procedure.
2. Equality before law: Equality of law or equal subjection of all classes of people to the
ordinary law of the land which is administered by the ordinary law courts. In this sense rule of
law conveys that no man is above the law. Even the Government Officials are under a duty to
obey the same law and there can be no other special courts for dealing specifically with their
matters.
3. Judge-made Constitution/Predominance of Legal Spirit: The courts are the enforcers of
the rule of law and they must be both impartial and free from all external influences. Thus, the
freedom of the judicial becomes an important pillar to the rule of law.
Dicey’s criticism of French framework:
• Droit Administratif; administrative tribunals (tribunaux administratifs)
• Counseil d’Etat: Established in 1799, Prior to 1873, it was not an independent court, but an
appendage to the executive. A minister was the judge, and it merely administered advisory
justice. It did not receive direct complaints from the public but through ministers. It did not hold
open sessions.
• He found a similarity between the system of French administrative law of his days and the
institutions of ancient autocratic monarchy.
• Was dubious whether the administrative courts could give protection to the individual against
the administration.
Criticisms:
• Equating discretionary power with arbitrary power.
• Didn’t conceive administrative law in its entirety, but was limited to administrative adjudication.
• His perception of “In England, we know nothing about administrative law and we wish to know
nothing”. Special courts in England like Ecclesiastical and admiralty courts; King can do no
wrong
Rule of Law:
Davis gives seven principal meanings of the term 'Rule of Law’:
1. Law and order;
2. Fixed rules;
3. Elimination of discretion;
4. Due process of law or fairness;
5. Natural law or observance of the principles of natural justice;
6. Preference for judges and ordinary courts of law to executive authorities and administrative
tribunals; and
7. Judicial review of administrative actions.
Separation of Powers:
According to the theory of separation of powers, the three powers and functions of the
government must, in a free democracy always be kept separate and be exercised by three separate
organs of the government.

Montesquieu pointed out as early as in the sixteenth century that placing power in the hands of
only one organ or group in a government entails tyranny. Thus, to check this problem he felt that
the solution would be to vest power in three distinct organs of the government, namely, the
legislature, the executive and the judiciary. This would allow each organ to be independent of the
other such that no encroachment or overlapping of powers may exist and a harmony may be
reached which would aid the smooth running of the government.
The separation of powers doctrine, in theory, aims at separating power and disseminating it such
that tyranny by the government may be prevented entirely as equal power vests in three separate
organs which act as a check and balance for each other. Thus, assigning a different function to
each organ and creating exclusive functions for them counters the concentration of powers and
makes this doctrine a success.
Functions of Administrative Law:
The primary function is to keep governmental powers within the limits of law and to protect
private rights and individual interests.

Notion of Traffic light theories used by Harlow and Rawlings in 1948.

Red light theory (Interventionist approach): According to this, the primary object of
administrative law is to control governmental power as it has emerged from a fear of State
absolutism. It seeks to protect private rights and individual interests. Its object is to keep
governmental agencies and administrative authorities within the bounds of law through judicial
control.
Whereas the red light favors judicial control, the Green light theory (Functionalist approach)
puts emphasis on the political process. Control of administrative agencies under this theory is
direct and internal rather than indirect and external. The in-built mechanism within, can be
achieved through active involvement, effective consultation, positive deliberation, creative
contribution, decentralization of power etc.
In most legal systems, it is a combination of the two theories and have been termed as Amber
light theory.
Definition:
• Ivor Jennings in his book "The Law and the Constitution, 1959" provided the following
definition of the term "administrative law“:
“Administrative law is the law relating to the administrative authorities. It determines the
organization, powers and the duties of administrative authorities”.
• Does not differentiate between Constitutional law and Administrative law.
• Many aspects of administrative law untouched particularly the control mechanism.
• According to K. C. Davis, "Administrative law is a law concerns the powers and procedures of
administrative agencies, including especially the law governing judicial review of
administrative action".
• It reflects control aspect of administrative law .
• It tilts towards the judiciary as a source of administrative law
• It do not reflect the transparency and accountability aspect, but it can be said that
judicial control may lead towards transparency and accountability.
Definition:

• Prof. Wade:

“Administrative law is the law relating to the control of the governmental powers.”

• According to him the primary object of the administrative law is to limit the powers of
Government and to prevent citizens against their abuse.

• It does not deal with the powers and duties of administrative authorities nor with the procedure
required to be followed by them.
• Definition by Griffith and Street:
• According to Griffith and Street, (Principles of administrative law, 1963), the main object of
Administrative law is the operation and control of administrative authorities, it must deal with
the following three aspects: -
▪ What sort of power does the administration exercise?
▪ What are the limits of those powers?
▪ What are the ways in which the administrative is kept within those limits?
Improvement to Griffith and Street's Definition:
• According to the Indian Law Institute, the following two aspects must be added to have a
complete idea of the present-day administrative law: -
▪ What are the procedures followed by the administrative authorities?
▪ What are the remedies available to a person affected by administration?
• Definition by Garner
• According to Garner, administrative law may be described as "Those rules which are recognized
by the court as law and which relates to and regulate the administration of government."
• Thus, Administrative law can be said to be science of power of Administrative authorities, and
the nature of their powers can be studied under the three heads:
▪ Legislative or Rule making,
▪ Judicial or Adjudicative,
▪ Purely Executive.
• Definition by I. P. Massey:
• Administrative Law is that branch of public law which deals with the organization and powers
of administrative and quasi-administrative agencies (e.g. Corporation, Boards, Universities
etc.) and prescribes principles and rules by which an official action is reached and reviewed in
relation to individual liberty and freedom.
• Prof. Upendra Baxi 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 pathology of power
in a developing society.

“The basic expectation in a rule of law society is that holders of public power and authority
must be able to publicly justify their action as a legally valid and socially wise and just.
Administrative law is one part of this valiant enterprise of accountability. In any rule of law
society, general forms of accountability do exist. Legislators go to polls periodically, errant
judges could be impeached, bureaucrats are responsible to the elected politicians. These
forms of general accountability become very feeble in any developing society because of
poverty, illiteracy and ignorance of the masses. Consequently, the study of administrative law
assumes special significance in any developing society for the development of more specific
forms of accountability”.
Constitutional Law and Administrative Law:
• Logically difficult to distinguish between administrative law from constitutional law, and all
attempts to do so are artificial.
• According to Holland, Constitutional law describes the various organs of the government at
rest while Administrative law describes them in motion. Therefore, according to this view,
the structure of the legislative and executive comes within the purview of Constitutional law
but their functioning comes within the sphere of Administrative law.
 Constitutional Law Administrative Law
• The ultimate law of any nation-state is • Administrative law is ancillary to the ultimate
constitutional law. law.

• Deals with the organs of the State and its • Deals with the actual functioning of the organs
structure. of the State.

• It has a wide scope and deals with the powers of

• It has a narrow scope and only deals with the
the State, general principles of governance, and
powers and functioning of the administrative
the relationship between the citizens and the
bodies.
State.

• It is codified into a single text in countries with

• It is not codified.
a written constitution.

• Administrative law defines its legal roles and

• Constitutional law establishes an administrative
limitations. Therefore, it can be seen as the
body.
action arm of constitutional law.
Case Laws:

1. Rai Sahib Ram Jawaya Kapur v. State of Punjab, AIR 1955 SC 549.

2. Asif Hameed v. State of J. & K., AIR 1989 SC 1899.

3. State of M.P. v Bharat Singh, AIR 1967 SC 1170.