Professional Documents
Culture Documents
Administrative Law - Unit I
Administrative Law - Unit I
SIGNIFICANCE:
It is very significant because if it did not exist then the very concept of having a democracy
and a government to work for the people would be self defeating because then there would be
no responsibility or accountability of the public officials to anybody and the administration
would run arbitrarily thus creating a huge monster that would eat up the very system. There
would be an upset in the balance in areas such as police law, international trade,
manufacturing, environmental, taxation, broadcasting, immigration, and transportation,etc.
was akin to Droit Administratif or that which was being practised in France and other
European countries where there are seperate rules for administrative officials as he believed
that such an arrangement would lead to a perpetual risk of excessive application of authority
with people having no window to their grievance redressal.
The reason for this is that while analysing the concept of Administrative Law Dicey was
always thinking of French administrative law/rights system/Le Droit Admanistratif that
existed under Napoleon's Bonaparte's rule.
Modern day concept of rule of law has been given a very broad meaning by providing
opportunities to unequal people in order to equal themselves with the others like
reservation,etc. Law is created by the legislature or other legal institutions and is not to
differentiate but enable unequals to become equals and the last word on the law would be that
of the Independent judiciary.
be a judge of a High Court or should have acted as a two years vice-chairman of the central
administrative tribunal.
The vice chairman of the CAT should be a secretary of govt of India or any other post with
equivalent pay for two years or otherwise additional secretary or post with equivalent pay for
a period of not less than 5 years.
For members of the CAT the person should be additional secretary of govt of India or
equivalent pay for 2 years or joint secretary or with an equivalent pay post for a period not
less than 5 years.
The members can only be removed on grounds of proven misbehaviour by the president.
For the chairman and vice chairman are given secure tenure of 5 years or retirement on 65
years whichever is earlier.
For administrative members 5 years or retirement upon 65 years whichever is earlier.
For the judicial member of the CAT he should be 1st class magistrate.
An aggrieved person can approach high court appealing against the decision of CAT.
RISKS IN ADMINISTRATIVE TRIBUNAL SETUP:
1) They lack in legal expertise.
2) It is a kind of Martial Law where law makers here implement it also and the legal
procedures are ignored which is violative of the principle of Natural Justice. Here the
administration is both the litigant and judge in its own case as mostly the cases are against or
relating to the very administrators who are sitting as judges there.
3) Lack of autonomy for lower tribunal officers.
4) Huge delay happens in this system too.
SAFEGUARDS AGAINST NEGATIVES OF ADMINISTRATIVE TRIBUNALS:
1) More legal expertise and officers should be brought in.
2) Principle of natural justice should be followed and the judge who is party to the dispute
should be excluded from the hearing of the case.
3) More autonomy should be given.
4) Members of civil society should also be included.
5) People with high integrity should only be appointed.
6) Political interference should be minimized in the appointment procedure of tribunals and
transparent procedures and rules should be established and followed.
7) Rule of tested evidence should be followed.
8) Decision making should be based on merit of the cases brought forward.
9) The parties to the dispute shall be given to present their cases and no judgement shall be
delivered without giving full chance to defend one's cause.
10) Appeals in courts of law should be permissible.
1.1 From a Laissez Faire to a Social Welfare State; State as regulator of privateinterest;
State as provider of services; Other functions of Modern State; Relief; Welfare
Administrative law meaning and development
According to the definition of Sir Ivon Jennings Administrative Law can be defined as a law
relating to administration. It determines the organization, powers and duties of administrative
authorities.
With the advent of time the definition and meaning of administrative law has gone through a
great deal of transition .From early 19th century to todays era the functions of the administration
has increased manifold leading to a transformation in the meaning of the term administrative
Law in accordance with the changes in the society.
Evolution
The term administrative law is not a newly coined term. The traces of administrative law can
be seen in almost every legalsystem of the world. In India, from Mauryas to Guptas, Guptas to
Mughals, from Mughals to the East India Company : in all the mentioned periods administrative
law was one of the most developing branches of law. Administrative Law can be said to be the
most remarkable development of the 20th Century. The development of administrative law goes
hand-in-hand with the development of the society. Administrative law can more rightly be said to
be the sociology of law and not the philosophy of law.
The three main stages led to the expansion of the meaning of the term Administrative law1. Laissez Faire 2. Dogma of Collectivism 3. Social-Welfare State
1. Laissez Faire : In the early 20th century the political gospel of laissez-faire was preached.
The principles on which the theory of laissez-faire works are as follows- Minimum control of
government Free enterprise Law and order not counted as subjects of state Power said to be
concentrated in the hands of the individual The theory of Laissez faire met with the following
pitfalls- Concentration of powers Which led to human misery Widening the inadvertent gap
between the poor and the rich
Administrative law The consequence of giving the powers in the hands of the individuals and
the minimum government control proved catastrophic .By this the vital power was concentrated
in the hands of the rich people and the balance of economy got terribily shaken which only paved
way to a debacle that is the increasing economic disparity where the rich became richer and the
poor became poorer.
2. Dogma Of Collectivism: After the miserable consequences that the police state suffered
because of the terrible failure of Laissez-Faire, the principle of collectivism evolved which said
that the state and individuals shall work in proper synchronization. The state had proper control
over the actions of the individuals and the state also stood up to take the responsibility for the
individuals life .liberty and property.
3. Social Welfare State: The Dogma of collectivism gave birth to the being of a social-welfare
state. India is a socialistic republic as the Preamble of the Constitution articulates. The social
welfare state thrives on the principle of providing justice of all kinds be it social, economic or
political and all laws and actions of the government to be taken keeping in mind the interests of
the citizens. The Constitution envisions to have an egalitarian society.
Conclusion: From Laissez faire to a social welfare state the meaning and definition of
administrative law has developed tremendously. After turning into a social-welfare state the
function ofstate shifted from setting the parameters or for deciding the administrative functions
to following the principles of natural justice and reasonableness. Administrative Law today is an
all-pervading feature existing in almost all parts of the society and its functions.
According to I.P. Massey Administrative Law now includes- 1. The powers and functions of the
administrative and quasi-administrative agencies. 2. The procedures these powers to be
exercised, prescribed and reviewed. 3. The review by individuals and how the aggrieved persons
whose powers have been abused and can seek a remedy. In a nutshell, Administrative Law is all
about the organization of powers and individual liberty, the procedures how individuals can
exercise there powers and the remedies for the individuals if there power is abused by
administrative authorities.
1.2 Evolution of Administration as the fourth branch of government; Necessity for
delegation of powers on administration
Administrative agencies
The administrative agencies that are funded from public money may exercise powers granted by
Congress. Without appropriate controls and oversight this practice may result in abureaucracy (in
the original literal sense). Some critics have argued that a central paradox at the heart of the
American political system is democracy's reliance on the what the critics view as undemocratic
bureaucratic institutions that characterize the administrative agencies of government.[4] An
argument made for calling administrative agencies a "fourth branch" of government is the fact
that such agencies typically exercise all three constitutionally divided powers within a single
bureaucratic body: That is, agencies legislate (a power vested solely in the legislature by the
Constitution)[5] through delegated rulemaking authority; investigate, execute, and enforce such
rules (via the executive power these agencies are typically organized under); and apply, interpret,
and enforce compliance with such rules (a power separately vested in the judicial branch).
[6]
branch of government, as they create rules with the effect of law, yet may be comprised at least
partially of private, non-governmental actors.
b. Present Position:
Though, our constitution was based on the principal of separation of powers, a complete
separation of powers was not possible hence it maintained the sanctity of the doctrine in the
modern sense. The Indian Constitution does not prohibit the delegation of powers. On the other
hand there are several provisions where the executive has been granted the legislative powers.
For example the legislative powers of the president under the Indian Constitution are
conspicuous. Under Article 123 the president has the power to promulgate the ordinances and
unrestricted power to frame regulations for peace progress and good government of the union
territory under Article 240. The Supreme Court of India has also upheld the delegation of
legislative powers by the legislative to the legislative to the executive in the case of Raj Narayan
allowing specific audit of rules by those for whose consumption they are made. Procedural
control mechanism operates in three components:
1. Drafting 2. Antenatal publicity 3. Consultation 4. Postnatal publicity
In India the judicial review of administrative rule making is subject to the normal rules
governing the review of administration action. This judicial review of administrative rule making
cannot be foreclosed in any manner by the enabling act. In State of Kerala v. K.M.C. Abdullah &
Co. the S.C. held that the validity ofsuch a phrase as shall not be called in question in any court
in the enabling act. In the same manner in G.O.C. v. Subash Chandra Yadav the S.C. held that an
act providing that rules made there under on publication in official gazette would be as if
enacted in the act. Cannot take away judicial review. Grounds of invalidity may arise on the
following counts:
1. That the Enabling Act is Ultra-vires the Constitution
2. The Administration Legislation is ultra-vires the Constitution
3. That the Administrative Legislation is ultra-vires the Enabling Act
Limitations to Delegated Legislation:
It is now settled by majority judgments in Delhi Laws Act, 1912, Re, that there is a limit beyond
which delegation may not go. The limit is that essential powers of legislation cannot be
delegated. The essential legislative power consists of the determination or choice of the
legislative policy and of formally enacting that policy into a binding rule of conduct. The
legislature, therefore, may not delegate its function of laying down legislative policy to an
outside authority in respect of a measure and its formulation as a rule of conduct. So long as a
policy is laid down and a standard or limit established by statue no unconstitutional delegation of
legislative power is involved in leaving to the executive the making of subordinate rules within
the prescribed limits and the determination of facts to which the legislation is to apply.
The next question arises as to what is the constitutional basis on which prohibition of delegation
of law making powers rests. There is no specific provision in the constitution prohibiting the
delegation. The Constitution of U.S.A embodies the doctrine of separation of powers, which
prohibits the executive being given law making powers.
In Edward Mills Co. v. State of Ajmer it was explained where a legislature is given plenary
powers to legislate on a particular subject there must also be an implied power to make laws
incidental to the exercise on such power. It exercise of a power is included in the grant of power.
In Devi Das Gopal Krishnan v. State of Punjab, Subba Rao, C.J. provided another justification
for delegated legislation that the Constitution confers a power and imposes a duty on the
legislature to make laws, but in view of the multifarious activities of a welfare State, it cannot
presumably work out all the details to suit varying aspects of a complex situation. The legislature
must necessarily delegate the working out of details to the executive or any other agency
1.3.1
Federal Aviation Administration (FAA): regulates and promotes air transportation safety,
including airports and pilot licensing
Federal Reserve System (the FED): regulates banking; manages the money supply
Federal Trade Commission (FTC): ensures free and fair competition and protects
consumers from unfair or deceptive practices
Food and Drug Administration (FDA): administers federal food purity laws, drug testing
and safety, and cosmetics
National Labor Relations Board (NLRB): prevents or corrects unfair labor practices by
either employers or unions
Occupational Safety and Health Administration (OSHA): develops and enforces federal
standards and regulations ensuring working conditions
Securities and Exchange Commission (SEC): administers federal laws concerning the
buying and selling of securities