NATURE, SCOPE, AND DEFINITION OF ADMINISTRATIVE LAW

For the smooth functioning of a democratic country, there should be a society based on fairness,
reasonableness and justness. Administrative law strives to develop a rule of law. It regulates
the relationships between citizens and government & protects the common man from arbitrary
decisions of officials. It consists of all executive actions, its programs & policies, all
administrative aspects of parliament & judiciary, all actions of state, all actions of non-state
actors (private entities) exercising public functions. It is the branch of public law which ensures
the working of government at both central and state levels and also deals with the organizations
and powers of administrative and quasi- administrative bodies.

Definitions of Administrative Law

Administrative law is a law related to administration and can be defined as the law which
governs the activities of the administrative agencies of the government including actions like
rulemaking, adjudication, or the enforcement of a particular agenda. Many scholars have given
definitions of administrative law as per their understanding.

According to K.C. Devis, Administrative law is a law which is related to powers and
procedures of administrative agencies, including specially the law related to judicial review of
administrative actions.

According to Ivor Jennings, Administrative law is relating to the administration which helps
in the determination of the organization, powers and duties of the administrative authorities.

According to Austin, Administrative law is to determine the ends to and the modes in which
the sovereign powers shall be exercised. It shall be directly or by the subordinates.

According to C.K. Takwani, Administrative law is the branch of constitutional law which
deals with the powers and procedures of the administrative authorities.
 Nature of Administrative Law

Administrative law is the branch of public law which defines the relation between individuals
and state. But it is not a law in a true sense like other laws such as property law or labor law. It
is also not like private law which deals with relations of individual inter se. It is a law to
administer the administrative authorities and check them from making any arbitrary decisions.
Administrative law deals with the organization, powers and duties of the administrative
authorities and also the procedure followed by the officials while exercising the powers. It also
provides remedies in the favor of the public when the rights of the public are encroached.

In India, administrative law is almost a judge made law. Judiciary interprets law according to
the need of time and issues guidelines for such. It affects administrative law and makes it
stronger and more beneficial. It is a branch of the constitution that regulates all three branches
i.e. legislative, executive and judiciary. In the same way, administrative law regulates all
administrative authorities and protects them from corrupt practices. Its main purpose is to focus
on the judicial review of administrative actions. Administrative actions can be legislative,
executive or judiciary. Administrative law can do all of three actions when which is required
to do so. The nature of administrative law changes according to the need.

Scope of Administrative Law

Scope means an area of study or the variety of subjects that are being discussed or considered.
As administrative law is almost judge-made law so it changes according to societal needs but
in the guidance of the basic principles so the scope of this law is wider in comparison to other
laws. Administrative law determines the powers and duties of the organization and the
administrative authorities. The scope of administrative law is wide enough because, with the
requirement of time, administrative Law incorporates new rules and regulations. The scope of
administrative law revolves around -:

• Establishment, organization and powers of various administrative bodies

• Delegated legislation – the rule making power of the authorities
• Judicial functions of administrative agencies such as tribunals
• Remedies available such as Writs, Injunctions etc.
• Procedural guarantees such as the application of principles of natural justice
• Government liability in tort
• Public corporations
 Delegated Legislation

The organs of the government; the legislature, the Executive and the Judiciary are empowered
with powers by the constitution and do not interfere in the matters of others. But we have to
keep in mind that there are multifarious functions that have to be performed by the Legislature
in welfare states and it is not an easy task for the legislature to look after every matter. The
legislatures are not able to find adequate time to legislate on every minute detail. Therefore,
the need for delegation is necessary and is sought to be justified on the ground of flexibility,
adaptability, and speed. ‘Delegated legislation’ means exercising of legislative power by an
agent who is lower in rank to the Legislature, or who is subordinate to the Legislature

Although the concept of delegated legislation was not mentioned specifically in the Indian
Constitution it can be understood by interpreting Article 312 of the given Constitution. This
Article gives right to the Rajya Sabha to open a new branch of All India Service with a majority
of two-thirds majority vote. This means that some powers of legislation will be delegated to
the new recruiter of All India Service.

(Need, advantages and criticism of delegated legislation to be studied from project)***

Modes of control of Delegated Legislation

There are three kinds of control given under Delegated Legislation in India -:

• Parliamentary or Legislative Control

• Judicial Control
• Executive or Administrative Control

Parliamentary or Legislative Control

In the case of Avinder Singh vs State of Punjab, it has been held that parliamentary control
over delegated legislation should be a living continuity as constitutional necessity

Under Parliamentary democracy, it is a function of the legislature to legislate, and its not only
the right but the duty of the legislature to look upon its agent, how they are working. In India,
“Parliamentary control” is an inherent constitutional function because the executive is
responsible to the legislature at two stages of control - (i) initial stage (ii) direct and indirect
stage.

In the initial stage, it is to decide how much power is to be delegated for completing the
particular task, and it is also to be observed that delegation of power is valid or not.
Now the second stage consists of two different parts, i.e. direct control and indirect control

Direct Control

Laying is an important and essential aspect under direct control and it is laid down as per the
requirement, which means that after making the rule it should be placed before the Parliament.
It includes 3 important parts as per the degree of control needs to be exercised – Simple laying,
Negative laying, and Affirmative laying.

In direct control, “test of mandatory” and “test of directory” are two main tests. Where the
laying demand is a condition pattern to guide the rule into impact, then in such a case laying
need is mandatory. Where the laying need in next to enforce the rule into operation, then it will
be directory in nature.

Indirect Control

This is a control exercised by Parliament and its committees. Another name for such type of
committee is Subordinate legislation. The main work of the committee is to examine -:

• Whether rules are according to general object of the act

• It bars the jurisdiction of the court in direct or indirect ways
• Whether it has retrospective effect or not
• Whether it safeguard or destroy the principle of natural justice
• Expenditure involved in it is from consolidated fund

Procedural or Executive Control

There is no particular procedure for it until the legislature makes it mandatory for the executive
to follow certain rules or procedure. To follow a particular format it may take a long time which
will definitely defeat the actual objective of the act. Hence, procedural control means that under
Parent act certain guidelines are given which need to be followed while whether it is mandatory
or directory to follow it or not. It includes 3 components -:

• Prior publication and consultation with an expert authority – The purpose of such
prior consultation is to avoid a clash between departmental excessive powers and the
interests most likely to be affected. Prior consultations enable us to know everyone’s
views and this minimizes the chances of objections.
In Banwarilal Agarwal vs State of Bihar, the Supreme Court held that the provision
under the Mines Act of 1952, before framing regulations was mandatory and failure to
consult the Mining Boards invalidated the regulations.
 • Publication of delegated legislation – Publicity of the proposed rules and regulations
is a procedural safeguard so that they do not go against the delegated legislation. For
example, Section 15 of Central Tea Board Act, Section 30(3) of CA Act and Section 3
of Cooperative Societies Act provide that the rules must first be published in draft form
to give an opportunity to the people to have their say in the rule making.
In Raza Buland Sugar co. vs Ram Municipality, a statutory requirement for the
municipality to publish the draft rules imposing tax on the resident of the municipality
in order to consult them has been held mandatory because the purpose of such
publication mainly is to further the democratic process and to provide a reasonableness
opportunity of being heard to those who are likely to be affected.
• Post Natal publication of delegated legislation – It is important in the rule making
process to ensure full justice to the public, as it has been said that “ignorance of law is
no excuse.” Laws should be ascertainable and clear to the persons who are likely to be
affected by it.
In Harla vs State of Rajasthan, SC held that unless the Act or any other instrument
having the force of law is duly published, it cannot be said to have any force, as
publication of the rules is essential to make them legally effective.

Judicial Control

Judicial review upgraded the rule of law. The court has to see that the power delegated is within
the ambit of the constitution as prescribed. Judicial review is more effective because court do
not recommend but it clearly strikes down the rule which is ultra vires in nature.

In Panchugopal vs Umesh Chand, SC said that if the Act is not made applicable to State by
legislative, then it cannot be made applicable by Judiciary.

In Re Delhi Laws Act case, the SC held that the enabling act was ultra vires, for it had exceeded
the constitutional limits in permitting the executive to repeal a law existing in the area.
 RULE OF FAIR HEARING (AUDI ALTERAM PARTEM)

The rule of fair hearing is derived from the maxim “audi alteram partem.” It means “hear the
other side” or no man should be unheard, both the parties have an opportunity of being heard.
This is a very strong rule which means no one will be judged without fair hearing. The motive
of this maxim is to provide an opportunity to other party to respond to the evidence against
him. This maxim has been applied to ensure fair play and justice to the person who is affected.
It is mainly applicable in the field of administrative action. The procedure which is adopted
should be just and fair. The person should be given an opportunity so that he can defend himself
before the court of law. A person will not suffer unless and until he had an opportunity of being
heard. This is the primary rule of humanized statute and is acknowledged by the laws of men
and God. Before any order is passed against any individual person, sensible chance of being
heard must be given to him. In this maxim two principles are considered that is fundamental
justice and equity.

Essential Elements

The essential elements of this maxim are as follows -:

1. Notice

Before any action is taken against the party who is affected, a notice must be provided to them
in order to present a cause against the proposed action and pursue his application. If any order
is passed without giving notice, then it is against the principle of natural justice and is void ab
initio which means void from the beginning.

It is a right of person to know about the facts before any action is taken and without knowing
the proper facts, a person cannot protect himself. The right to notice means right to be known.
The facts should be known by the party before the hearing of the case. Notice is essential to
begin any hearing. Notice must contain the date, time, place of hearing and also the jurisdiction
under which a case is filed. It must also contain the charges and proposed against the person.
If any of the thing is missing in the notice then notice will be considered invalid. Non issuance
of notice does not affect the jurisdiction but affects the rules of natural justice.

In the case of Punjab National Bank vs All India Bank Employees Federation, the notice
which was given to the party consisted of certain charges, but it was not mentioned anywhere
that penalty was imposed on the charges. Hence, the charges on which penalty was imposed
was not served as a notice to the parties concerned. The notice was not proper and thus, the
penalty which was imposed was invalid.
2. Hearing

The second most essential element of audi alteram partem is fair hearing. If the order is passed
by the authority without hearing the party or without giving him an opportunity of being heard,
then it will be considered as an invalid order.

In the case of National Central Co-operative Bank vs Ajay Kumar, it was observed that it
is well settled that no adverse orders can be passed against a party without giving it opportunity
to place its case.

3. Evidence

Evidence is considered as a very significant part which is presented before the court when both
the parties are present there; and the judicial or quasi-judicial authority shall act upon the
evidence which is produced before the court.

In the case of Stafford vs Minister of Health , it was held that no evidence should be received
in the absence of the other party, and if any such evidence is recorded, then it is the duty of the
authority to make it available to the other party.

4. Cross Examination

Section 33 of the Indian Evidence Act, 1972, provides for the rights of the parties to cross-
examine. The cross-examination of the witnesses is not regarded as an obligatory part of natural
justice. Whether the opportunity of cross examination is to be give or not depends upon the
circumstances of the case and statute under which hearing is held.

In Hira Nath Mishra v. Rajendra Medical College, Ranchi, some male students of medical
college entered the girls’ hostel and misbehaved with the girls. An inquiry committee was set
up against whom the complaints were made. The complainants were examined but not in
presence of the boys. On the report of the committee, four students were expelled from the
college. They challenged the decision of the committee on the ground of violation of the natural
justice. The court rejected the plea and held that in presence of the boys, the girls cannot be
cross-examined that may expose them to the harassment.
5. Legal Representation

It is to be said that the lawyers should be kept away from the administrative adjudication, as it
saves time and expense. But the right to be heard would be of little avail if the counsel were
not allowed to appear, as everyone is not articulate enough to present his case.

In the case of JJ Modi vs State of Bombay, it was held that refusal of legal representation
amounts to the violation of natural justice because the party was not able to understand the
rules of law effectively and they should get a chance of being heard once again.

RULE AGAINST BIAS (NEMO JUDEX IN CAUSA SUA)

The rule against bias is derived from the maxim “nemo judex in causa sua”, which means that
“no one should be a judge in his own case” because it leads to rule of biases. Bias means an act
which leads to unfair activity whether in a conscious or unconscious stage in relation to the
party or a particular case. Therefore, the necessity of this rule is to make the judge impartial
and given judgement on the basis of evidence recorded as per the case.

Types of Bias

Bias manifests itself variously and affects a decision in a variety of ways. It can broadly be
classified into 6 ways -:

• Personal Bias
• Pecuniary Bias
• Subject Matter Bias
• Departmental Bias
• Preconceived Notion Bias
• Bias on account of Obstinacy

1. Personal Bias

It arises out of the personal or professional relationship of friendship or hostility between the
authority and the parties. It’s the human nature that we try to give favorable decision to our
friends or relatives, whereas use the same as a weapon against the enemies. In order to
challenge an administrative action on the ground of personal bias, it is necessary to give a
reasonable reason for bias.
In the case of Mineral Development Corporation Ltd. vs State of Bihar, the petitioners were
granted a mining lease for 99 years in 1947. But in 1955, government quashed the license. The
petitioners brought an action against the minister passing this order on the behalf of
government, on the ground that the petitioner in 1952 opposed the minister in General election.
Therefore, on the account of political rivalry, the minister passed such an order, and hence the
order was suffered from personal bias. Supreme Court found the allegation to be true and thus
quashed the said order.

2. Pecuniary Bias

Any financial interest, howsoever small it may be, is bound to vitiate the administrative action.
In Jeejeebhoy vs Asst. Collector, Thana, the bench was reconstituted when it was found that
one of the members of the bench was the member of the cooperative society for which the kand
has been acquired.

But this rule is not applicable where the judge, though having financial interest, has no direct
financial interest in the outcome of the case. This is evident from the Court of Appeal decision
in R v. Mulvhill, where the court refused to set aside the conviction of an accused on a charge
of robbery in a bank on the ground that the trial judge had shares in that bank. In such cases
unless there is a likelihood of bias administrative action will not be quashed.

3. Subject matter Bias

Subject matter bias comes into play where the deciding officer is directly or indirectly involved
in the subject matter of the case. In R v. Deal Justices ex p. Curling, the magistrate was not
declared disqualified to try a case of cruelty to an animal on the ground that he was a member
of the royal society for the prevention of cruelty to animals as this did not prove a real likelihood
of bias.

4. Departmental Bias

The problem of departmental bias is something which is inherent in the administrative process,
and if it is not effectively checked, it may negate the very concept of fairness in the
administrative proceeding.

In the case of Gullapalli Nageswara Rao v. APSRTC the order of the government
nationalizing road transport was challenged. One of the grounds for challenge was that the
Secretary of the Transport Department who gave the hearing was biased, being the person who
initiated the scheme and also being the head of the department whose responsibility it was to
execute it. The court quashed the order on the ground that, under the circumstances, the
Secretary was biased, and hence no fair hearing could be expected.

5. Preconceived Notion Bias

Bias arising out of preconceived notions is a very delicate problem of administrative law. On
one hand, no judge as a human being is expected to sit as a blank sheet of paper, on the other
hand, preconceived notions would vitiate a fair trial.

In the case of T Govindaraja Mudaliar v. State of T.N, the government decided in principle
to nationalize road transport and appointed a committee to frame the scheme. The Home
Secretary was made a member of this committee. Later on, the scheme of nationalization was
finalized, published and objections were heard by the Home Secretary. It was contended that
the hearing was vitiated by the rule against bias because the Secretary had already made up his
mind on the question of nationalization as he was a member of the committee which took this
policy decision. The court rejected the challenge on the ground that the Secretary as a member
of the committee did not finally determine any issue as to foreclose his mind. He simply helped
the government in framing the scheme.

6. Bias on account of Obstinacy

The word Obstinacy implies unreasonable and unwavering persistence and the deciding officer
would not take no for an answer. This new category of bias was discovered in a situation where
a judge of the Calcutta High Court upheld his own judgment while sitting in appeal against his
own judgment. Of course, a direct violation of the rule that no judge can sit in appeal against
his own judgment is not possible, therefore, this rule can only be violated indirectly. In this
case in a fresh writ petition the judge validated his own order in an earlier writ petition which
had been overruled by the Division Bench. What applies to judicial process can be applied to
administrative process as well.
 SEPARATION OF POWERS

The concept of separation of powers refers to a system of government in which the powers are
divided among multiple branches of the government, each branch controlling different facet of
government. In most of the democratic countries, it is accepted that the three branches are the
legislature, the executive and the judiciary. According to this theory, the powers and the
functions of these branches must be distinct and separated in a free democracy. These organs
work and perform their functions independently without the interference of one into others in
order to avoid any kind of conflict. It means that the executive cannot exercise legislative and
judicial powers, the legislature cannot exercise executive and judicial powers and the judiciary
cannot exercise legislative and executive powers. The following are the fundamental objectives
of the doctrine of separation of powers -:

• It aims to eliminate arbitrariness, totalitarianism and tyranny and promote an

accountable and democratic form of government.
• It prevents the misuse of powers within the different organs of the government. The
Indian Constitution provides certain limits and boundaries for each domain of the
government and they are supposed to perform their function within such limits. In India,
the Constitution is the ultimate sovereign and if anything goes beyond the provisions
of the constitution, it will automatically be considered as null, void and
unconstitutional.
• It keeps a check on all the branches of the government by making them accountable for
themselves.
• Separation of powers maintains a balance among the three organs of government by
dividing the powers among them so that powers do not concentrate on any one branch
leading to arbitrariness.
• This principle allows all the branches to specialize themselves in their respective field
with an intention to enhance and improve the efficiency of the government.
 Separation of Power under Indian Constitution

Like the United Kingdom, India also practices the parliamentary form of government in which
executive and legislature are linked to each other. So, the doctrine of separation of powers is
not implemented in its strict sense. However, the composition of our constitution creates no
doubt that the Indian Constitution is bound by the separation of powers. There are various
provisions under the Indian Constitution that clearly demonstrate the existence of the doctrine
of separation of powers. This principle is followed both at the centre and the state level.
Following are the provisions that substantiate separation of powers -:

• Article 53(1) and Article 154 of the Indian Constitution clearly say that the Executive
powers of the Union and the States are vest in the President and Governor respectively
and shall only be exercised directly by him or through his subordinate officers.
• Article 122 and Article 212 of the Indian Constitution state that the courts cannot
inquire in the proceedings of Parliament and the State Legislature. This ensures that
there will be no interference of the judiciary in the legislature.
• Article 105 and Article 194 of the Indian Constitution specify that the MPs and MLAs
cannot be called by the court for whatever they speak in the session.
• Article 50 of the Indian Constitution encourages the separation of judiciary from the
executive in the states.
• Article 245 of the Indian Constitution gives authority to Parliament and State
Legislature for making laws for the whole country and the states respectively.
• Article 121 and Article 211 of the Indian Constitution state that the judicial conduct of
any judge of the Supreme Court or High Court shall not be discussed in Parliament or
State Legislature.
• Article 361 of the Indian Constitution specifies that the President and the Governor are
not accountable to any court for exercising their powers and performance of duties in
his office.
 OMBUDSMAN

An ombudsman is a public advocate who is usually appointed by the government, with a

significant degree of independence, and is charged with representing the interests of the public
by investigating and addressing complaints of maladministration or a violation of rights. The
duties of an ombudsman are to investigate complaints and attempt to resolve them, usually
through recommendations or mediation. In the Indian context this role is played by the Lokpal.

The issue concerning the ombudsman was for the first time raised in the Parliament in the year
1963. The idea of ombudsman came to India in the year 1959. Mr C.D. Deshmukh was the
Chairman of the University Grants Commission and he made possible the establishment of a
tribunal which would be completely impartial and would look into the matters and make proper
reports on the complaints filed by the public in general. From this incident there have been
continuous demands for the establishment of such a mechanism like an ombudsman in all the
strata of the Indian society.

A crucial change with reference to the Lokpal Bill came in the year 2011 and it was in this year
that the Lokpal Bill was passed and it eventually led to the establishment of the institution of
Lokpal at the Centre and Lokayukta at State level. Another important feature of this Bill is that
the form of the current Bill has been arrived at after it went through numerous recurring rounds
of consultations and discussions with all the interested parties which also included the society
at large. And it was only after such numerous deliberations and proper consultations that this
Act eventually came into force on the 1st January 2014.