MODULE II

Administrative law is that branch of law that deals with powers, functions and
responsibilities of various organs of the state. There is no single universal definition of
‘administrative law’ because it means different things to different theorists. Administrative
Law is, in fact, the body of those which rules regulate, and control the administration.
Administrative Law is that branch of law that is concerned with the composition of power,
duties, rights, and liabilities of the various organs of the Government that are engaged in
public administration. Under it, we study all those rules laws, and procedures that are helpful
in properly regulating and controlling the administrative machinery. Administrative law is part
of the branch of law commonly referred to as public law, the law that regulates the
relationship between the citizen and the state and which involves the exercise of state
power. So, it is a part of the legal framework for public administration.
Mainly there are three organs of a state - legislative, executive and judiciary. The legislature is
responsible for making the laws, the executive is responsible with the implementation of the
laws and judiciary is responsible for reviewing laws and executive powers supervising justice
and settlement of disputes. But at times the legislature is unable to come up with the required
quality and quantity of legislations because of limitations of time, the technical nature of
legislation and the rigidity of their enactments. Similarly, justice through judiciary is
sometimes technical, expensive and slow. To fill this gap of legislature and judiciary states
have empowered their executives (administrative) branch with certain powers. The ambit of
administration is wide and embraces following elements:-
1. It makes policies,
2. It executes, administers and adjudicates the law
3. It exercises legislative powers and issues rules, bye- laws and orders of a general nature.

DEFINITIONS BY JURISTS

Austin has defined administrative Law.

As the law, which determines the ends and modes to which the sovereign power shall be
exercised. In his view, the sovereign power shall be exercised either directly by the monarch
or directly by the subordinate political superiors to whom portions of those are delegated or
committed in trust.

Bernard Schawartz has defined Administrative Law as “the law applicable to those
administrative agencies which possess delegated legislation and adjudicatory authority.”
Jennings has defined Administrative Law as “the law relating to the administration. It
determines the organization, powers, and duties of administrative authorities.”
Dicey in the 19th century defines it as.
Firstly, a portion of a nation’s legal system which determines the legal statues and liabilities of
all State officials.
Secondly, defines the rights and liabilities of private individuals in their dealings with public
officials. Thirdly, specifies the procedure by which those rights and liabilities are enforced.

This definition suffers from certain imperfections. It does not cover several aspects of
administrative law, e.g. it excludes the study of several administrative authorities such as
public corporations which are not included within the expression “State officials,” it
excludes the study of various powers and functions of administrative authorities and their
control. His definition is mainly concerned with one aspect of administration. Law, namely,
judicial control of public officials.

Definition by Ivor Jennings in his "The Law and the Constitution, 1959" provided the
following definition of the term "administrative law". According to him, "administrative law
is the law relating to the administrative authorities".

Ivor Jennings defined administrative law as the law relating to administration. It determines
the organization, powers, and duties of administrative authorities.
This formulation is too broad and general as it does not differentiate between
administrative and constitutional law.
It excludes the manner of exercise of powers and duties.
Administrative law is the by-product of the ever-increasing functions of the Governments.
States are no longer police states, limited to maintaining internal order and protecting from
external threats. These, no doubt continue to be the basic functions but a state that is limited to
this traditional role will de-legitimize itself. With the rise of political consciousness, the
citizens of a state are no longer satisfied with the state's provisioning of traditional services.
The modern state is, therefore, striving to be a welfare state. It has taken the task to improve
the social and economic condition of its people. It involves undertaking a large number of
complex tasks. Development produces great economic and social changes and creates
challenges in the fields of health, education, pollution, inequality, etc. These complex problems
cannot be solved except with the growth of administration. States have also taken over a
number of functions, which were previously left to private enterprises. All this has led to the
origin and the growth of administrative law.
According to K. C. Davis, "Administrative law as the law concerns the powers and procedures
of administrative agencies, including especially the law governing judicial review of
administrative action".
Definition by Prof. Wade. According to Wade (Administrative Law, 1967) any attempt to
define administrative law will create a number of difficulties. But if the powers and
authorities of the state are classified as legislative, administrative and judicial, then
administrative law might be said "the law which concerns administrative authorities as
opposed to the others".
There are some difficulties with this definition also. It fails to distinguish administrative law
from constitutional law Like Jennings's definition mentioned above; this is also a very wide
definition. It includes the entire legal field except the legislature and the Judiciary. It also
includes the law of local government. It is also said that it is not possible to divide completely
and definitely the functions of legislative, executive, and judiciary. It is very difficult to say
precisely where legislation ends and administration begins. Though enacting a law is the
functioning of the legislature the administrative authorities, legislate under the powers
delegated to them by the legislature and this delegated legislation is certainly a part of
administrative law.
As stated by Jain and Jain, “Administrative law deals with the structure, powers, and function
of the organs of administration, the limits of their powers, the methods, and procedures
followed by them in exercising their powers and functions, the method by which their powers
are controlled including the legal remedies available to a person against them when his rights
are infringed by their operation”.
This definition states that administrative law addresses the following four areas: It addresses
the nature and scope of administrative authorities; it establishes the bounds of those authorities;
it specifies the processes that these authorities must follow in the exercise of their authority;
and it exercises judicial and other forms of control over these administrative authorities.

SCOPE OF ADMINISTRATIVE LAW

The scope of Administrative law can be narrated as under: -
The methods and procedures of these Administrative organs are also studied by this new
branch of law.
It covers the nature of the structure, powers, and functions of all these administrative organs.
It also makes available all the relevant remedies to the persons whose rights are infringed by
the operations of these organs during the course of Administration.
Why and How the Administrative Organs are to be controlled is also viewed by the
Administrative law.
Public Law/Private Law Divide
The boundaries of administrative law extend only when administrative agencies and public
officials exercise statutory or public powers, or when performing public duties. In both
civil and common-law countries, these types of functions are sometimes called ―public law
functions to distinguish them from ―private law functions.
The former governs the relationship between the state and the individual, whereas the later
governs the relationship between individual citizens and some forms of relationships with
the state, like relationships based on government contracts. For example, if a citizen works
in a state-owned factory and is dismissed, he or she would sue as a ―private law function.
However, if he is a civil servant, he or she would sue as a ―public law function. Similarly, if
residents of the surrounding community were concerned about a decision to enlarge the state-
owned factory because of environmental pollution, the legality of the decision could be
reviewed by the courts as a ―public law function. The point here is that the rules and
principles of administrative law are applicable in a relationship between citizens and the
state; they do not extend to cases where the nature of the relationship is characterized by
a private law function.

Administrative law is a branch of public law in contradiction with private law, which
deals with the relationship of individuals inter se. Therefore, admin law is primarily
concerned with the relationship of individuals with the organized power.

Substance vs. Procedure

Many of the definitions and approaches to administrative law are limited to procedural aspects
of the subject. The focus of administrative law is mainly on the manner and procedure of
exercising power granted to administrative agencies by the legislature. Fox describes the
trend and interaction between substance and procedure as it is the unifying force of the
administrative process – in dramatic contrast to the wide variety of substantive problems with
which agencies deal- that has persuaded most administrative law professors to concentrate
on agency procedure rather than agency substance. Hence, to a wider extent, the study of
administrative law has been limited to analyzing how matters move through an agency, rather
than the wisdom of the matters themselves. Concerning judicial review, the basic question
asked is not whether a particular decision is ―right, or whether the judge, or a Minister, or
officials have come to a different decision. The questions are what is the legal limit of power
or reasonable limit of discretion the law has conferred on the official? That power been
exceeded, or otherwise unlawfully exercised? Therefore, administrative law is not concerned
with the merits of the decision, but with the decision-making process

SOURCES OF ADMINISTRATIVE LAW

Constitution of India: It is the primary source of administrative law. Article 73 of the

Constitution provides that the executive power of the Union shall extend to matters with respect
to which the Parliament has the power to make laws. Similar powers are provided to States
under Article 62. Indian Constitution has not recognized the doctrine of separation of powers
in its absolute rigidity. The Constitution also envisages tribunals, public sector, and government
liability which are important aspects of administrative law.
Acts/ Statutes: Acts passed by the central and state governments for the maintenance of peace
and order, tax collection, economic and social growth empower the administrative organs to
carry on various tasks necessary for it. These Acts list the responsibilities of the administration,
limit their power in certain respects and provide for grievance redressal mechanism for the
people affected by the administrative action.
Ordinances, Administrative directions, notifications and Circulars: Ordinances are issued
when there are unforeseen developments and the legislature is not in session and therefore
cannot make laws. The ordinances allow the administration to take necessary steps to deal with
such developments. Administrative directions, notifications and circulars are issued by the
executive in the exercise of power granted under various Acts.
Judicial decisions: The Judiciary is the final arbiter in case of any dispute between various
wings of government or between the citizen and the administration. The courts through their
various decisions on the exercise of power by the administration, and the liability of the
government in case of breach of contract or tortuous acts of government servants lay down
administrative law that guide their future conduct.

Administrative Discretion − It is nearly impossible for government to function without giving

some discretion to its officials considering the different situations and circumstances. But since
such discretion is prone to be abused therefore it is necessary to have a system in place to
ensure the fair exercise of such discretion. − Administrative Discretion means the freedom of
an administrative authority to choose from amongst various alternatives but with reference to
rules of reason and justice and not according to personal whims. The exercise of discretion
should not be arbitrary, vague, and fanciful, but legal and regular.
Judicial Control over Administrative Actions − Public administration exercises a large
volume of power to meet the citizen's need in the modern democratic welfare state. Due to this
there is a number of chances of them becoming arbitrary. So it is very necessary to control
them through Judicial Control. − The underlying object of judicial control is to ensure that the
authority does not abuse (misuse) its power and that the individual receives just and fair
treatment.
 MODULE III

Globalisation, which has integrated the whole world into a unit by a vast range of regulatory
regimes has led to the emergence of a global state through international institutions. These
institutions regulate the social, economic, and political life of states. Therefore it has led to
the emergence of the concept of Global Governance. This concept of Global Governance has
led to the development of the concept of Global Administrative Law.
This GAL concept is based on the idea of understanding global governance as administration,
which can be organized and shaped by principles of an administrative character. In this way,
GAL is related to trans-governmental regulation and administration designed to address
the consequences of globalized interdependence in fields such as security, trade conditions on
development and financial assistance, banking and financial regulations, Intellectual Property
Rights, Labour standards, and cross-border movements of populations, including refugees.

RULE OF LAW
The term is derived from the French Phrase “la principle de legalite” which refers to a
government based on principles of law and not of men. It implies a State of Affairs where
there is the absence of arbitrary powers, and where law is observed by everyone including
the government and its officers. Where the actions of the administration are backed by law,
where everyone is equal before the law and is assured that will not be punished except for
violation of the law. The rule of law is a system in which the 4 universal principles are upheld:
i. The government and its officials and agents are accountable under the law.
ii. The laws are clear, publicized, stable, and fair and protect the FR’s, including the
peace and security of persons and property.
iii. The process by which the laws are enacted, administered, and enforced is
accessible, efficient, and fair.
iv. Justice is delivered by competent, ethical, and independent representatives and
neutrals who are of sufficient no., have adequate resources, and reflect the makeup
of the communities they serve.

ALBERT VENN DICEY’S RULE OF LAW

Rule of law means “the absolute supremacy of predominance of regular law as

opposed to the influence of arbitrary power and excludes the existence of
arbitrariness or prerogative, or even wide discretionary authority on the part of the
government”.

It contains three principles:

1. Absence of discretionary power in the hands of the government officials.

2. No person should be made to suffer in body or deprived of his property except
for a breach of law established in the ordinary legal manner before the courts of
the land.
 3. The right of the people must flow from the customs and traditions of the people
recognized by the courts in the administration.

According to Prof. Dicey, the Rule of law contains essential elements:

1. Supremacy of Law: The First meaning of the Rule of Law is that '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 ordinary courts of the land”. That law
rules over all people including the persons administering the law. The lawmakers need to
give reasons that can be justified under the law while exercising their powers to make and
administer the law.

2. Equality before Law: The second meaning of the Rule of Law is no man is above the
law. While the principle of supremacy of law sets in place the checks and balances over
the government in making and administering the law, the principle of equality before the
law seeks to ensure that the law is administered and enforced in a just manner. It is not
sufficient to have a fair law but the law must be applied in a just manner as well.

3. Predominance of Legal Spirit: In including this as a requirement for the Rule of Law
Dicey’s belief was that it was insufficient to simply include the above two principles in the
Constitution of the country or in its other laws for the State to be one in which the principles
of ROL are being followed. There must be an enforcing authority and Dicey believed that
this authority could be found in the courts. The courts are the enforcers of the Rule of Law
and they must be both impartial and free from all the external influences.

Judiciary and Rule of Law:

The Indian Judiciary has played an instrumental role in shaping the Rule of Law in
India. By adopting a positive approach and dynamically interpreting the
constitutional provisions, the courts have ensured that the Rule of Law and respect
for citizens’ rights do not remain only on paper but are incorporated in spirit too.

In the case of A.D.M. Jabalpur v. Shiv Kant Shukla, KHANNA, J. observed:

“Rule of Law is the antithesis of arbitrariness……..Rule of Law is now the accepted

norm of all civilized societies……Everywhere it is identified with the liberty of the
individual. It seeks to maintain a balance between the opposing notions of individual
liberty and public order.”

In Bachhan Singh v. State of Punjab, it was held that the Rule of Law has three basic
and fundamental assumptions. They are:-
1) Law making must be essentially in the hands of a democratically elected
legislature;

2) Even in the hands of the democratically elected legislature, there should not be
unfettered legislative power; and
3) There must be independent judiciary to protect the citizens against excesses of
executive and legislative power.

The Rule of Law, in its most basic form, is the principle that no one is above the law. The
rule follows logically from the idea that truth, and therefore law, is based upon fundamental
principles which can be discovered, but which cannot be created through an act of will. I
Keshvananda Bharati Case, the SC states:

“Our Constitution postulates Rule of Law in the sense of the supremacy of the Constitution
and the laws as opposed to arbitrariness”. The 13 judges bench also laid down that ROL is
an “aspect of the basic structure of the Constitution”.

In the case of Indira Nehru Gandhi v. Raj Narayan, the Apex Court held that Rule
of Law embodied in Article 14 of the Constitution is the “basic feature” of the
Indian Constitution and hence it cannot be destroyed even by an amendment
of the Constitution under Article 368 of the Constitution.

In the case of Maneka Gandhi v. Union of India, the Hon’ble Supreme Court
established the Rule of Law that no person can be deprived of his life and personal
liberty except procedure establish by law under Article 21 of the Constitution. Thus,
Article 21 requires the following conditions to be fulfilled before a person is
deprived to his life and liberty:
1. That there must be a valid law.
2. The law must provide procedure.
3. The procedure must be just, fair and reasonable.
4. The law must satisfy the requirement of Article 14 and 19.

The Supreme Court observed in Som Raj v. State of Haryana, that the absence of
arbitrary power is the primary postulate of the Rule of Law upon which the whole
constitutional edifice is dependant. Discretion being exercised without any rule is a
concept that is the antithesis of the concept.

Another facet of the Rule of Law in India is the independence of the judiciary and
power to judicial review. The Supreme Court in the case Union of
India v. Raghubir Singh that it is not a matter of doubt that a considerable degree
of principles that govern the lives of the people and regulate the State functions flows
from the decision of the superior courts. Rule of Law as has been discussed
postulates control on power. Judicial review is an effective mechanism to ensure
checks and balances in the system. Thus, any provision which takes away the right
to judicial review is seen to go against the very fiber of the Rule of Law. In the case
of S.P. Sampath Kumar v. Union of India, the courts have reiterated that judicial
review is part of the basic structure of the Constitution.

In India, the meaning of the rule of law has been expanded. It is regarded as a part
of the basic structure of the Constitution and, therefore, it cannot be abrogated or
destroyed even by Parliament. The ideals of the Constitution- liberty, equality, and
fraternity have been enshrined in the preamble. Constitution makes the supreme law
of the land and every law enacted should conform to it. Any violation makes the law
ultra vires. Rule of Law is also reflected in the independence of the judiciary.

SEPARATION OF POWER

The purpose of the doctrine is to ensure that there is no concentration of power with one organ
or with one individual and that the principles of democracy are respected. The doctrine of
separation of power is an idea that talks about the functioning of government at its best when
the powers are not solely given to a single authority but are subdivided into different branches.
The doctrine states that powers and functions must be divided among different organs, and no
one shall infringe upon the territory of others. It is essential to keep a check on and maintain
balance in the functioning of others.

MONTESQUIEU’S CONTRIBUTION

The idea behind this doctrine is that no man should be empowered with all these three
powers. These should be divided; accordingly in that the law should be made by the legislative,
the administration of law should be done by the executive, and the judiciary should uphold the
law and provide justice. Montesquieu believed that the decentralization of power should be
done or else justice becomes capricious. The three organs Legislative, executive, and judiciary
should work independently and there should be no overlap between the powers of these organs.
According to him the basic assumption behind this principle is that if all the power is given in
the hands of one body, it can be dangerous for the citizens because then the law becomes
arbitrary and flawed.

MEANING OF SEPARATION OF POWER

The doctrine of separation of powers follows the principles tries politics. The concept of this
doctrine is to remove the abuse of power by the authorities. This doctrine says that no organ of
the government can exercise power other than what is given to them. There are three principles
on which this doctrine is based:
• Exclusivity Principle which has divided the government into three structural organs.
• Functional Principle which gives the boundaries of the organs, and that one organ shall not
perform the functions of the other.
• The check and Balance Principle suggests that checks should be made on each other by
these organs to ensure that the functions and duties performed are within the constitutional
bounds.

The doctrine divides power into two kinds, i.e., essential powers and incidental powers.
Essential powers constitute the core power of that organ; in this case, the other organs
cannot interfere with the core power of an organ, and incidental powers are the secondary
powers; in this case, the other organs can exercise the incidental powers of an organ.
 RAM JAWAYA KAPUR VS. STATE OF PUNJAB
(1955) 2 SCR 225
MUKHERJEA, C.J.

A similar question was raised in the Motilal case, where the question was whether the state
Government has the power to carry on the trade and business of running a bus service.

The Court held that the executive power is more than just merely executing laws; it includes
express and implied as well as incidental and ancillary powers too, so the act of running a
transport service was not outside the scope of the state. The Indian Constitution does not
state the powers of the executive, so neither the restrictions of the Australian Constitution
nor the restrictions of legislation can be put on the executive. (Motilal v. Government of
the State of Uttar Pradesh [AIR 1951 Allah. 257)

Article 73 of the Constitution relates to the executive powers of the Union, while the
corresponding provision in regard to the executive powers of a State is contained in Article
162. The provisions of these articles are analogous to those of Sections 8 and 49(2) respectively
of the Government of India Act, 1935 and lay down the rule of distribution of executive powers
between the Union and the States, following, the same analogy as is provided in regard to the
distribution of legislative powers between them.

It may not be possible to frame an exhaustive definition of what executive function means and
implies. Ordinarily the executive power connotes the residue of governmental functions
that remain after legislative and judicial functions are taken away. The Indian
Constitution has not indeed recognised the doctrine of separation of powers in its absolute
rigidity but the functions of the different parts or branches of the Government have been
sufficiently differentiated and consequently it can very well be said that our Constitution
does not contemplate assumption, by one organ or part of the State, of functions that
essentially belong to another.

The limits within which the executive Government can function under the Indian
Constitution can be ascertained without much difficulty by reference to the form of the
executive which our Constitution has set up. Our Constitution, though federal in its structure,
is modelled on the British parliamentary system where the executive is deemed to have the
primary responsibility for the formulation of governmental policy and its transmission
into law though the condition precedent to the exercise of this responsibility is its
retaining the confidence of the legislative branch of the State. The executive function
comprises both the determination of the policy as well as carrying it into execution. This
evidently includes the initiation of legislation, the maintenance of order, the promotion of
social and economic welfare, the direction of foreign policy, in fact the carrying on or
supervision of the general administration of the State.

Under Article 53(1) of our Constitution, the executive power of the Union is vested in the
President but under Article 75 there is to be a Council of Ministers with the Prime
Minister at the head to aid and advise the President in the exercise of his functions. The
President has thus been made a formal or constitutional head of the executive and the
real executive powers are vested in the Ministers or the Cabinet.
The executive Government are bound to conform not only to the law of the land but also to the
provisions of the Constitution. The Indian Constitution is a written Constitution and even the
legislature cannot override the fundamental rights guaranteed by it to the citizens.
Consequently, even if the acts of the executive are deemed to be sanctioned by the
legislature, yet they can be declared to be void and inoperative if they infringe any of the
fundamental rights of the petitioners guaranteed under Part III of the Constitution. On
the other hand, even if the acts of the executive are illegal in the sense that they are not
warranted by law, but no fundamental rights of the petitioners have been infringed
thereby, the latter would obviously have no right to complain under Article 32 of the
Constitution though they may have remedies elsewhere if other heads of rights are
infringed.