Administrative Law – Module 1

Nature, Scope & Foundations

Dr. Divya , NLUJ
Administrative Law
What is Administration?
• Management of government, public affairs
• derived from the Latin word administere-means to care for or to
look after people
• In administrative law- Used in broadest sense:
✔ Covers all executive actions, programmes and policies
✔ Covers all administrative aspects of Parliament and judiciary
✔ All actions of State like actors/agency or instrumentality of State
✔ All actions of non-state actors exercising public functions.
✔ Implementation of laws, policies, and public programs
✔ Includes rule-making, adjudication, and enforcement
✔ Actors: government departments, agencies, regulators
 Why administrative law?
• AL a by-product of intensive form of govt
• Intensive govt may lead to negation of people’s rights
and values
• Ensures accountability and transparency in governance
• To prevent administration from slipping into
authoritarianism
• Authority or persons in authority might not hesitate to
trample upon civil liberties-Social Justice and Access to
Remedies
• Balancing Efficiency and Rights Protection
• Rule of Law and Legality
• Separation of Powers and Accountability
• Specialization and Expertise
 Definition and Scope
• Heuristic science
• “Dharma” of the administration
• Strives to develop society based on RoL
(fairness, justness and reasonableness)
• Goes beyond legalism
• Difficult to attempt a precise definition
because of tremendous increase in
administrative process
 Upendra Baxi’s Perspective
• Calls Administrative law an awkward and fuzzy notion
• Yet- at the same time, an ever-growing doctrinal sphere
• No fixed terrain
• Principles of admin law have to be found, discovered and even
invented where allegations of arbitrary use of power raised
• Common law of Constitution- most of it is uncodified
• AL celebrates value of Rule of Law (RoL)- i.e. power must always be
rendered accountable, governance just and State be ethical
• Administrative law as a tool for social justice and accountability
• It protects ‘little man’ from arbitrary exercise of power
 Ivor Jennings
• Law relating to administration
• Determines organization, powers and duties of
administrative authorities
• Did not really try to differentiate between AL
and Constitutional Law (CL)
 FJ Fort
Administrative law is made up of all these legal
rules either formally expressed by statute or
implied in the prerogative-which have as their
ultimate object the fulfilment of public law. It
touches first the legislature, in that body usually
lays down the formally expressed rules; it touches
the judiciary, in that (a) there are rules which
govern the judicial action that may be brought by
or against the administrative person, (b)
administrative bodies are sometimes permitted to
exercise judicial powers: thirdly, it is of course
essentially concerned with the practical application
of Law
 AV Dicey
• Relates to that portion of nation’s legal system
which determines legal status and liabilities of
all state officials
• Defines rights and liabilities of pvt individuals
in dealing with public officials
Administrative Law vs Constitutional
Law
 CL AL

• Describes organs of govt at • Describes with them in motion

rest • Anti-authoritarian
• Anti-majoritarian • Deals with details
• Deals with fundamentals • Source: statutes, case laws,
• Source: constitution customs, etc
• Implementations of policies
• Fundamental rights as per public needs
• controls executive action
• Limits Constitutional powers
by fairness, reasonableness,
justness
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 OVERLAPS

AL CL

WATERSHED:- Articles 32, 136, 226, 227, 300 and 311 (control mechanism in Constitution
for admin authorities
Admin agencies- ISC, FC, PSCs, EC etc (263, 280, 315, 324)
Provisions which place fetters on admin action i.e. FRs
 Doctrine of Watershed
• refers to area where CL and AL overlap and
intersect
• Forming a crucial boundary yet not a rigid
separation
• Both are intertwined and influence each other
in structure and functions of government and
its agencies
• Both connected and interdependent
 DROIT ADMINISTRATIF
• French term
• Body of public law to determine organization and duties of
public administration
• Regulates relations of administration with citizens of State
• No statute or written code
• Established after French revolution 1789
• Before 1789- executive interfered in judicial matters,
Conseil du Roi discharged judicial functions as well (like
Privy Council)
• Conseil du Roi was to advise King in legal and
administrative matters
• Same was disliked and usurped/intruded by ordinary
courts- Power struggle between both branches
 Shift with French Revolution
• Power of executive curtailed by introducing law on
separation of powers (1790)
• Conseil du Roi abolished- King’s powers curtailed
• 1799- Conseil d’Etat (Council of State)- main aim
to resolve difficulties in course of administration.
• Gradually had powers for advisory justice, advised
ministers regarding complaints
• 1872- it got formal power to give judgement
• 1873 law gave final jurisdiction to deal with admin
matters to Conseil d’Etat
• By 1889- received direct complaints from citizens
 Three series of rules

1. Rules to deal with admin authorities and officials

– appointment, termination, salaries, posts,
duties, etc.
2. Rules regarding public service to meet citizen
needs
3. Rules dealing with admin adjudication
(in case of conflict between ordinary courts and
administrative courts reg. jurisdiction, matter refers
to Tribunals des Conflicts)
RULE OF LAW
• Supreme manifestation of human civilization
• Lingua franca of global moral thought
• Eternal value of constitutionalism
• Inherent attribute of democracy
• Doctrine of “state political morality”- securing
correct balance b/w rights and powers
(between indiv. And b/w indiv. & State)
• Infuses law with moral qualities
• Right reason
• LAW vs RULE OF LAW- Principle of Generality
governs RoL
• Not capable of exact definition
• Similar to jus naturale of Romans and ‘social
contract’ of Hobbes, Locke and Rousseau
• Ethical code for exercise of public power
• The basic postulates of RoL are Equality,
Freedom and Accountability
• Equality- govt obliged to create equal socio,
economic, political conditions
• Freedom- absence of arbitrary action, of
speech & expression, personal liberty
• Accountability
Dicey’s formulation of Rule of Law
• Absence of Discretionary power in hands of govt
officials
• No person be deprived of his body or property except
for Breach of law as determined by ordinary courts
• No special privileges for govt official
• All persons subjected to same court
• It means, in the first place, the absolute supremacy or
predominance of regular law as opposed to the
influence of arbitrary power, and excludes the
existence of arbitrariness, of prerogative, or even of
wide discretionary authority on the part of the
government.
SEPARATION OF POWERS- based on 4
principles
• Exclusivity principle- structural division
• Functional – NO amalgamation and
usurpation, interaction allowed
• Check and Balance principle
• Mutuality Principle- cooperation not
confrontation, engagement not estrangement
 Does Constitution recognize it?
• Only in Article 50
• SC in Ram Jawaya Kapur vs State of Punjab- No
rigid separation of powers, functions have
been sufficiently differentiated, so
Constitution does not allow assumption by
one organ of functions of other organ
• Functional as well as Personnel overlap
• Basic structure
• Indira Gandhi vs Raj Narain
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Separation of Powers – US vs
India
Using Amy Coney Barrett's hearing to
understand the doctrine
 What’s Happening in the Video?
• US President nominates a Supreme Court
judge (Executive)
• Senate Judiciary Committee questions
nominee (Legislature)
• Nominee demonstrates impartiality and
commitment to Constitution (Judiciary)
• Barrett avoids political answers to signal
judicial independence
 Concept – Separation of Powers
• Government power divided among
Legislature, Executive, and Judiciary
• Each branch has distinct functions and checks
the others
• In US clip: Legislature checks Executive’s
appointment power
• Scrutiny ensures judiciary’s independence
before appointment
US vs India – Judicial Appointments
US System Indian System

President nominates; Senate confirms in Collegium recommends; President

public hearings appoints (no public hearings)
Public scrutiny of nominee’s philosophy Closed-door process; no direct public
scrutiny
Visible interaction among all three Legislature has no formal role; Executive
branches can delay names
Nominee reaffirms independence publicly Independence presumed from collegium
process
 Advantages & Drawbacks
• US Advantages: Public accountability,
transparency
• US Drawbacks: Politicisation of process
• India Advantages: Keeps politics at a distance,
preserves dignity
• India Drawbacks: Lack of transparency,
minimal public scrutiny
• US – Preventive check before appointment
• India – Corrective check after appointment
• Both aim to preserve judiciary’s ability to
check Executive and Legislature
 Key Takeaway
• US hearings = separation of powers in action
• India uses different structure, same goal:
independent judiciary
• Doctrine adapts to context, but core aim
remains constant
Separation of Powers: UK & India
– A Comparative Reflection
Focusing on Similarities and Shared
Institutional DNA
 Common Historical Foundations

• Both inherited the Westminster model – fusion of executive and

legislature.
• UK: PM and Cabinet are MPs.
• India: PM and Council of Ministers are MPs (Articles 74–75).
• Functional, not strict, separation.
 Parliamentary Sovereignty vs.
Constitutional Supremacy
• UK: Parliament legally supreme – courts cannot strike down primary
legislation.
• India: Constitution is supreme – Parliament bound by constitutional
limits.
• Similarity: Strong judicial review of executive action.
 Judicial Independence

• UK: Constitutional Reform Act 2005 – separated judiciary from

House of Lords.
• India: Secured via Constitution (Articles 124–147) and
collegium system.
• Similarity: Judicial independence as a democratic safeguard.
 Executive Accountability

• UK: Political accountability via Question Time, Select Committees,

no-confidence motions.
• India: Parliamentary questions, debates, and no-confidence under
Article 75(3).
• Similarity: Executive survives only with legislative confidence.
 Flexible vs. Written Frameworks

• UK: Unwritten constitution – evolves via statutes, conventions,

judgments.
• India: Written constitution – rigid but amendable.
• Similarity: Pragmatic adaptation blending rules with conventions.
 Rule of Law as Common Anchor

• UK: A.V. Dicey's principle guides judicial review, ministerial

accountability.
• India: Rule of Law via Articles 14, 21 – part of basic structure
doctrine.
• Similarity: Rule of Law limits governmental power.
 Key Takeaways

• Neither follows pure separation – overlap exists.

• Judicial oversight is vital safeguard.
• Executive accountable to legislature in both.
• Rule of Law is a constant limiting principle.
• Main difference: UK – Parliamentary sovereignty; India –
Constitutional supremacy.
Rai Sahib Ram Jawaya Kapur vs
State of Punjab (1955)
Landmark judgment on Executive
Power and Separation of Powers
 Background & Facts
• Pre-1950 practice: multiple publishers/authors submitted textbooks; state
used lists for approvals.
• Post-1950 actions: State prepared/approved official textbooks and
imposed terms (e.g., royalty, selection).
• Petitioners (publishers/authors) challenged the State’s measures as
unconstitutional and beyond executive power.
 Legal Issues
• Whether the Executive could carry on trade/business (textbook publishing)
without specific legislative sanction.
• Whether Article 19(1)(g) (freedom to carry on business/profession) was
infringed.
• Whether executive actions were ultra vires and violated fundamental
rights.
 Petitioners' Arguments
• Executive exceeded its constitutional authority without legislative backing.
• Rights under Article 19(1)(g) and property-related rights were infringed.
• State action was arbitrary and violated separation of powers.
 State of Punjab's Arguments
• Actions aimed at public welfare and standardization of education.
• Executive power permits administrative measures to ensure educational
standards.
• No absolute prohibition on private publishers; State merely prescribed
official textbooks.
 Supreme Court Judgment
• Petition dismissed — Court held the Executive could act in
publishing/selection of textbooks in exercise of its functions.
• No violation of Article 19(1)(g) as there was no inherent right to have
books prescribed by the State.
• Separation of powers in India recognised as flexible; overlap between
functions permissible when constitutionally justified.
 Separation of Powers — Court's
Holding
• The Court recognised that the separation of
powers in India is not an absolute or rigid
doctrine.
• Functional overlap between the Executive and
Legislature is constitutionally permissible in
certain situations.
• Executive action that advances public welfare
may be valid even if it touches on areas
typically associated with legislation.
• The Court looked at the nature and purpose of
 Separation of Powers — Implications
• Affirms a pragmatic, functional approach:
focus on substance and purpose of executive
action rather than formal labels.
• Sets precedent that executive involvement in
certain commercial/welfare activities won't
automatically violate separation of powers.
• Reinforces the need to balance individual
commercial interests with broader public
interest objectives.
 Significance
• Clarified the scope of Executive authority in
absence of explicit legislation.
• Affirmed that welfare-oriented executive
action can be constitutionally valid.
• Provided precedent for balancing executive
flexibility with protection of individual rights.
• Establishes that separation of powers is
functional and flexible, not an absolute bar
between branches.
• Affirms that the substance and purpose of
executive action (public welfare/education)
 Key Takeaways
• Executive powers include implied and ancillary powers necessary for
functions.
• No inherent right of private publishers to be included in official
prescriptions.
• Separation of powers is functional rather than absolutely rigid in Indian
constitutional practice.
 Conclusion
• Rai Sahib Ram Jawaya Kapur v. State of Punjab
remains a landmark on executive power.
• The judgment emphasises constitutional
allowance for executive measures serving
public welfare.
Asif Hameed v. State of J & K (1989)
Landmark Judgment on Separation of Powers and Judicial Review
 Background & Facts
• Petitions challenged the selection process for admissions to medical colleges
in J&K.
• In Jyotsana Sharma vs State, 1987:- HC directed the State to entrust the
selection process of the two medical colleges to a statutory independent
body, and till that was done, to entrust the process of selection to such a
body which was to be free from executive influence
• Instead of following it, State issued Executive Order prescribing a detailed
procedure for selection of candidates for admission to first year
MBBS/BDS course and other professional courses
• Order provided for the constitution of a Competent Authority for the
purpose of making selections to the professional courses.
• Other order provided qualifications, functions, conditions of service and
powers and duties of the Competent Authority.
• Petition against appointment of Dr Raina as CA and for not following the
verdict in Jyotsana judgment in HC
• HC was told by petitioners that CA would constitute 2 more persons.
However, later CA was not widened but a committee of 3 academicians was
constituted to assist the CA
 Legal Issues
• Whether the selection process violated principles of fairness and
equality under Article 14.
• Extent to which the judiciary can interfere in matters of policy and
executive discretion.
• Scope of separation of powers in relation to judicial review.
 Arguments – Petitioners
• Selection process arbitrary and violative of equality principles.
• Executive acted without proper guidelines, leading to discrimination.
• Court should direct a fair and transparent procedure for admissions.
 Arguments – State of J&K
• Admission policy falls within the domain of executive and legislative
policy-making.
• Courts should not interfere unless there is clear violation of
constitutional provisions.
• Selection procedure was framed keeping in mind local needs and
constraints.
 Supreme Court Judgment
• Petitions dismissed; Court upheld the selection process as within
executive competence.
• Reaffirmed that judiciary cannot direct how executive should
exercise its policy discretion.
• Separation of powers requires each branch to respect domain of the
other.
• Judicial review limited to ensuring constitutionality and absence of
arbitrariness.
 Separation of Powers – Court’s
Observations
• Doctrine is part of the basic structure of the Constitution.
• Courts must refrain from encroaching upon functions of
executive/legislature.
• Judicial review ensures that executive acts within constitutional
bounds, but does not replace policy-making.
• Balance between independence of branches and checks & balances.
• “While exercising power of judicial review of administrative action,
the court is not an appellate authority. The Constitution does not
permit the court to direct or advise the executive in matters of
policy or to sermonize qua any matter which under the
Constitution lies within the sphere of legislature or executive,
provided these authorities do not transgress their constitutional
limits or statutory powers.”
• “legislature is supreme in its own sphere
under the Constitution. It is solely for the
legislature to consider as to when and in
respect of what subject matter the laws are
to be enacted. No directions in this regard can
be issued to the legislature by the courts.”
• “procedure for selection laid down by the
executive as well as the selection are always
open to judicial review on the ground of
unreasonableness or on any other
constitutional or legal infirmity”
 Significance
• Clarified judicial limits in matters involving policy discretion.
• Strengthened principle of functional separation among
branches of government.
• Affirmed that judicial activism must be balanced with respect
for executive domain.
 Key Takeaways
• Judiciary ensures legality, not the merits, of policy choices.
• Functional separation prevents overreach while allowing
accountability.
• Case is a leading authority on judicial restraint in policy matters.
 Conclusion
• Asif Hameed v. State of J&K reinforces the functional application of
separation of powers in India.
• Emphasises judicial self-restraint in executive policy decisions.
• Enduring precedent for limits of judicial review.
 SOP in a nutshell
• Check and balance?
• Absolute separation?
• Restraint?
• We can’t chose- today it is a “Community of
powers” to be exercised by each branch with a
spirit of cooperation in people’s best interest
 ROL and SOP
• Conceptual objections against AL growth?

OR

• Constitutional Basis of Administrative Law?

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 HOW CONCEPTUAL OBJECTIONS?
• administrative institutions concentrate
rule-making, adjudication and enforcement in
the executive sphere- it seems to clash with
idea of ROL
• Core ideal of ROL: Non-arbitrariness, executive
and legislature acting within statutory ambit,
equality, freedom, accountability
• Core ideal of SOP: functional and structural
separation, no overlaps
 How AL is threat to ROL and SOP?
❑ Discretionary Power
❑ Delegated rule making
❑ Multiple sources of rules
❑ Quasi Judicial processes
❑ Risk of arbitrariness
Administrative growth risks turning law into governance-by-officials rather than
governance-by-law
❑ Rule-making by executive = legislative function.
❑ Administrative adjudication = judicial function.
❑ Executive enforcement of its own rulings = fusion of powers.
❑ Risk of arbitrariness
❑ Administrative agencies perform law‑making, adjudication, and enforcement — blurring
functions.
❑ Concentration of these powers in the executive risks weakening checks & balances.
❑ This creates a single body that makes, applies, and enforces norms — the very
concentration the separation doctrine warns against
Administrative agencies blur institutional boundaries and thereby risk weakening
checks that prevent abuse.
 Rule of Law & Separation of Powers — how they justify and
constrain administrative law or provide Constitutional basis

• Rule of Law supplies normative constraints

(legality, non-arbitrariness, fairness).
• Separation of Powers supplies institutional
architecture and checks.
• Together they justify delegation to agencies
while demanding legal limits and review.
 Rule of Law — Core Demands
• Legality: agencies act only under law (ultra vires control).
• Non-arbitrariness & Rationality: decisions must be reasonable
and based on relevant considerations.
• Predictability & Publicity: rules should be clear and accessible.
• Procedural Fairness: right to be heard, impartial
decision-making, reasoned orders.
 Rule of Law — Practical Effects
• Doctrines: ultra vires, legitimate expectation, natural justice.
• Judicial review enforces standards (legality, reasonableness,
fairness).
• Requirements for reasons, notices, appeals, and transparency.
 Separation of Powers — Institutional
Foundations
• Division of roles: Legislature sets standards;
Executive implements; Judiciary reviews.
• Delegation with limits: statutes must provide
principles and standards for delegation.
• Checks & balances: judicial review, legislative
oversight, judicial restraint
 Separation of Powers — Practical
Effects
• Statutory frameworks that define agency powers and limits.
• Independent adjudicatory bodies and appeal mechanisms to
avoid self‑policing.
• Legislative oversight (affirmative/negative procedures) and
parliamentary control.
 Synthesis — How They Work Together
• Legitimacy (who) + Containment (how):
separation defines institutions; rule of law
defines constraints.
• Enabling + Restricting: Constitution permits
delegation, Rule of Law and separation impose
limits.
• Remedy architecture: Judiciary enforces Rule
of Law.
 Doctrinal Toolkit
• Ultra vires / legality review
• Reasonableness / proportionality review
• Natural justice & fair hearing requirements
• Legitimate expectation; transparency;
requirement of reasons
• Remedies: certiorari, mandamus, prohibition,
declarations
 Key Takeaways
• Administrative Law enables modern
governance while using Rule of Law and
Separation of Powers as constitutional brakes.
• AL is NOT to sanctify executive arbitrariness,
but to check it and protect rights of people
against any excesses.
• Central theme of AL is to reconcile liberty with
power.
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