ADMINISTRATIVE LAW: MEANING, NATURE AND SCOPE

UNIVERSITY INSTITUTE OF LEGAL STUDIES

A PROJECT REPORT
SUBJECT: ADMINISTRATIVE LAW

TOPIC: ADMINISTRATIVE
LAW: MEANING, NATURE
AND SCOPE

SUBMITTED BY: SUBMITTED TO:

SCHEHERAZADE SANDHU DR. PURSHOTTAM

ROLL NO. 2067

SEMESTER 3 LL.M

1
 ADMINISTRATIVE LAW: MEANING, NATURE AND SCOPE

Contents
Introduction to Administrative Law...................................................................................................................3
Growth of Administrative Law..........................................................................................................................4
Rule of Law…………………………………………………………………………………………………………………………………………………….5
Significance and Definitions..............................................................................................................................6
Robson...............................................................................................................................................................8
Dicey..................................................................................................................................................................8
H.W.R. Wade....................................................................................................................................................9
Griffith and Street..............................................................................................................................................9
Garner..............................................................................................................................................................10
Red light theory and Green light theory...........................................................................................................15
Reasons for Growth of Administrative Law………………………………………………………………...…10
NATURE AND SCOPE OF ADMINISTRATIVE LAW................................................................................15
DROIT ADMINISTRATIFF............................................................................................................................19
BIBLIOGRAPHY………………………………………………………………………………………………………………………………………..23

2
 ADMINISTRATIVE LAW: MEANING, NATURE AND SCOPE

A. Introduction to Administrative Law

Administrative Law is the most outstanding legal development arising from confrontation with the
complex problems of socio-economic justice in the welfare state. The most significant and outstanding
phenomenon of the twentieth century has been the establishment of welfare state in democratic countries.
It does not, however, mean that there was no administrative law before the emergence of welfare state.
The truth is that administrative law is based on the assumption that there is a politically organised society
and from that assumption certain rules relating to the control of administration emerge, which are called
administrative law. As administrative law deals with administration. it is as old as any organised
administration. Since many years, in one form or the other, it has been in existence. But under the impact
of the philosophy of welfare state, the role and function of the government have undergone a radical
change. The result is that the governmental functions have multiplied by leaps and bounds. Now the state
is not merely a police state, exercising sovereign functions, but as a progressive democratic state, it seeks
to ensure social security and social welfare for the common man, regulates private enterprise, exercises
control over the production, manufacture and distribution of essential commodities, starts many
enterprises, seeks to achieve equality for all and ensure equal pay for equal work. It improves slums and
looks after health and morals of people. It takes all the steps which socio-ecomonicjustice demands. All
these developments have led to administrative explosion which has widened the scope and ambit of
administrative law. The concept of Administrative Law has assumed great importance. It is a branch of
law which has witnessed remarkable advances in the welfare state as it is being increasingly developed to
control abuse or misuse of governmental power and keep the executives and its various instrumentalities
and agencies within the limits of their power. Welfare state is an administrative state which exercises
public power for achievement of socio-economic purposes and performs numerous functions. In short, as
pointed out by W. Friedman in his well known book 'Law in a changing society', the state performs five
different functions and three out of these result from activities of the state as provider, as entrepreneur and
as Economic Controller. Administrative law is a part of valiant enterprise as it seeks to diminish
arbitrariness in exercise of public power. Moreover it is the most growing and complex legal phenomenon
as it is a judge made law and the judges have been changing their positions very often as they decide cases
according to the social picture. This makes an understanding of the subject a lot difficult. Moreover, recent
socio-economic policies and the ghost of environmental pollution have added new dimensions to the
subject. Statutes like the Environment (Protection), Act, 1986; the Water (Prevention and Control of
Pollution) Act, 1974; the Air (Prevention and Control of Pollution) Act, 1981; The Forest Conservation
Act, 1980; and the Wild Life Protection Act, 1970 provide for administrative control and regulation in
3
 ADMINISTRATIVE LAW: MEANING, NATURE AND SCOPE

order to protect environment and natural resources. Environment clearance has to be obtained from the
concerned authorities for the construction of dams and houses. There are new additions, such as
competition and liberalization, material on regulatory authorities which have come in existence since India
moved from command economy to market economy. It has grown not only through judicial decisions but
also new socio-economic legislation. Governance has to be transparent, participatory and accountable. In
the pursuit of globalisation, India has responded to opening up its economy, removing controls and
resorting to liberalisation. Liberalisation does not mean abdication of its functions by the state. it only
means that the administrative control of economy which was necessary earlier, was needed to be replaced
by the policy of selective control and an all pervading regulation of private enterprise with a view to
protect public interest. Such regulation protected the investors, consumers, environment and also the
democratic process and values. Private enterprise has come now to be allowed in areas, such as power,
telecom, insurance, banking and air travel. Whether the state controls or regulates, it has to exercise power
and such exercise of power has to be according to law. The state has to be accountable to the people. Its
actions therefore must be transparent and decision making should become more and more participatory.
The law which reinforces accountability, transparency and participatory character of governance, is being
dealt with in this book. Administrative law which was state centric, has come to be more and more people
centric. It is concerned with how power is used by the state to promote public interest, which is a concept,
the content of which changes according to needs of the people.

B. Growth of Administrative law

DEVELOPMENTS IN BRITAIN

Dicey has reluctantly recognised the beginning of administrative law in Britain under the force of
circumstances. However since then things have changed rather demonstrably.

In 1929, the Executive, Lord Hewart made attacks on the expansion of administrative powers of
legislation and adjudication. As a result Donoughmore Committee was appointed and submitted its report
in 1932. This represented the first attempt made in Britain at systemisation of Administrative law.

In 1947, the Parliament enacted the Crown Proceedings Act to liberalise the law relating to civil
proceedings against the crown.

The committee on Administrative Tribunals and Inquiries was set up in 1955 and further the Tribunals and
Inquiries Act.

The Whyatt report in 1961 suggested the appointment of Ombudsman in Britain. Same was adopted in
1967. Administrative law has thus grown into an identifiable branch of law in Britain.

4
 ADMINISTRATIVE LAW: MEANING, NATURE AND SCOPE

A lot of development in the English law has been brought about the enforcement of the European
Conventions on Human Rights from October 2000 by the Human Rights Act 1998

RULE OF LAW INDIA

The history shows that man has always appealed to something higher than that which is his own creation.
In jurisprudence, Romans call it ‘jus naturale’, Hobbes, Lock and Rousseau call it ‘social contract’, or
‘natural law’ and the modern man calls it Rule of Law.

The term Rule of Law is derived from French phase ‘la principe de legalite’ which means the principle of
legality. It refers to a government based on principles of law and not of man. Edward Coke is said to be
the originator of this concept. The concept is invoked often to convey the sense that the administration
cannot exercise arbitrary powers and that it should function according to law.

Dicey’s concept of Rule of Law contains three principles:

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

2. Person should not be punished except for the breach of law and

3. The rights must flow from customs and traditions of people.

Administrative Law has been characterised as the most "outstanding legal development of the twentieth
Century.”1 However, it does not mean that there was no Administrative Law in any country before the
twentieth Century. Being related to public administration, Administrative should be deemed to have
been in existence in one form or another in every country having some form of Government. It is as
ancient as the administration itself as it is concomitant of organised administration.2

In India itself, Administrative Law can be traced to the well-organised and centralised administration
under the Mauryas and Guptas, several Centuries before the Christ, following through the
administrative system of the Mughals to the administration under the East India Company, the
precursor of the modern administrative system.3

What the opening statement, therefore signifies is that Administrative law has grown and developed
tremendously, in quantity, quality and relative significance, in twentieth century, that it has become
more articulate and definite as a system in democratic countries; that it has assumed a more
recognisable form in the present century so much so that it has come to be identified as a branch public

1
Vandebilt’s introduction to Schwarts, French Administrative law and the common law world 8(1954)
2
Parker ,the Historic basis of Administrative law (1958)
3
A.K.Chandra , Indian Administration (1965)

5
 ADMINISTRATIVE LAW: MEANING, NATURE AND SCOPE

law by itself distinct and separate from constitutional law, a fit subject matter of independent study and
investigation in its own right.

The rapid growth of Administrative Law in modern times is the direct result of the growth of
administrative powers and functions. This development can partly be attributed to the critical
international and internal situation creating a sense of insecurity which compels the government to
acquire vast powers to provide for the defence and internal security of the country. For example in India,
the National Security Act, 1980 confers vast discretionary powers on the administration to interfere with
personal freedom of the people. But, mainly, the growth of administrative law is to be attributed a
change of philosophy as regards the role and function of the State.

The ruling political gospel of the nineteenth century was lasses-faire which manifested itself in the
theories of individualism, individual enterprise and self helps.4 The philosophy envisaged minimum
government control, maximum free enterprise and contractual freedom.

The State was characterised as "law and order" State and its role was conceived to be negative as its
interest extended primarily to defending the country from external aggression, maintaining law and
order within the country, dispensing to its subjects and collecting a few taxes to finance these activities.
It was an era of free enterprise and minimum governmental responsibility and functions. The
management of social and economic life was not regarded as government responsibility. It was a "police
state".

However laissez faire doctrine resulted in human misery. It came to be realised that bargaining position
of every person was not equal and uncontrolled contractual freedom - led to exploitation of the weaker
by the stronger, e.g., of the labour by the management in industries. On the one hand, slums, unhealthy
and dangerous conditions of work, child labour, wide spread poverty and exploitation of masses, but on
the other hand concentration of wealth in a few hands, became order of the day. It came to be realised
that the state should take active interest in ameliorating the conditions of the poor. This approach gave
rise to the political dogma of "collectivism" which favored state intervention in, and social control and
regulation of individual enterprise. The State started to act in the interests of social justice, assumed a
positive role. In course of time, out of the dogma of collectivism emerged the concept of "social welfare
state" which lays emphasis on the role of the state as a vehicle of socio-economic regeneration and
welfare of the people.5

The establishment of Supreme Court in Calcutta had inaugurated an era of independent judicial
administration but it came to an end with the passage of the Act of Settlement, 1781. After the Battle of

4
Dicey, Law and Public opinion in Britain 126-210 (1962)
5
Maclver, the Web of govt.236(1965)

6
 ADMINISTRATIVE LAW: MEANING, NATURE AND SCOPE

Plassey 1757 a centralised administrative system was formed to make laws. Thereafter many regulations

were passed to take care of administrative justice system, one among them is Cornwallis Code, 1793.
The other one is Section 108 of Regulation Act 1822 which required administrative agencies to record
facts, evidence and decision. The court had power to control administrative actions but it payed great
respect and attention to the administrative decision. Till the end of British rule the Indian Government
was concerned with the more primary duties only. The Indian Constitution was adopted on the policy of
welfare state. Various sections in the constitution such as Article 39 require the state to direct its policy
towards adequate means of livelihood. Article 47 talks about rising of the level of nutrition and standard of
living of its people, article 32 and 226 confers the power to High courts and Supreme Courts to issue
writs. Moreover the constitution itself provides for establishment of administrative agencies. Article 315
talks about Public Service Commission in India and article 329 talks about Election Commissions.

The philosophy of welfare state has been ingrained in the Preamble to Indian Constitution and directive
principles of state policy. The Constitution aims at establishing a sovereign socialist secular democratic
republic in India so as to secure to all its citizens, inter alia, social, economic and political justice. 6 The
State is put under an obligation to strive to secure social order in which social, economic and political
justice shall inform all the institutions of national life [Article 38]. The State is required to direct its policy
towards securing that the citizens have equal rights to an adequate means of livelihood; that the ownership
and control of material resources of are so distributed as best to subserve the common good, that there is
no concentration of wealth and means of production to the common detriment; and that there is equal pay
for equal work [Article 39].

The State is obligated to provide for education and assistance in old age, in unemployment and other
contingencies [Article 41]. The State is provide for free and compulsory education for children up to the
age of 14 years [Articles 45 and 21A].

Further, in interpretation of the law and the Constitution, judiciary does at times take note of the ideals
of a social welfare state even though some of the ideals may not be expressly incorporated in the
Constitution.

For instance, the Supreme Court has observed as regard the basic tenor of the Indian Constitutional:7

"The Constitution envisions to establish an egalitarian social order rendering to every citizen, social,
economic and political justice in a social and economic democracy."

Again the Supreme Court has stated in PaschimBangalKhetMazdoorSamity v. State of West Bengal8:
6
Preamble to the constitution
7
Samantha vs State of AP AIR 1977 SC
8
AIR 1996 SC 2426

7
 ADMINISTRATIVE LAW: MEANING, NATURE AND SCOPE

"The Constitution envisages the establishment of a welfare state at the federal level as well as the state
level. In a welfare state the primary duty of the government is to secure the welfare of the people."

The emergence of the social welfare concept has affected the democracies very profoundly. It has led to
state activism. There has occurred a phenomenal increase in the area of state operation; it has taken over
a number of functions which were previously left to private enterprise. The State today pervades every
aspect of human life, it runs buses, railways and postal services; it undertakes planning of social and
economic life of the community with a view to raise the living standards of the people and reduce
concentration of wealth; it improves slums, plans urban and rural life, looks after health, morals, and
education of the people, it generates electricity, works mines and operates key and important industries.
It acts as an active instrument of socio-economic policy, regulates individual life and freedom to a great
extent, provides many benefits to its citizens, and imposes social control and regulation over private
enterprise.

The functions of modern state may broadly be placed into five categories, viz the state as protector,
provider, entrepreneur, economic controller and arbiter.9

The administration has acquired powers of adjudication over disputes between itself and private
individuals inter se, and, thus have emerged a plethora of tribunals, diversified in structure, jurisdiction,
procedures, and powers, connected with the administration in varying degrees and pronouncing binding
decisions like the courts whose powers have been diluted or excluded in several areas. The
administration has secured extensive powers to grant, refuse or revoke licenses, impose sanctions and
take actions of various kinds in its discretion or subjective satisfaction, to enable the administration to
discharge effectively its rule-making, adjudicatory and other discretionary and regulatory investigation,
search and functions. It has been churn vast powers inquiry and inspection"' seizure, and supervision.

Another advantage of administrative process is that it can evolve new techniques processes and
instrumentalities and acquire expertise and specialisation, to meet and handle new complex problems of
modern society. Administration has become a highly complicated job needing a good deal of technical
knowledge, expertise and know-how. Continuous experimentation and adjustment of detail has become
an essential requisite of modern administration.

If a certain rule is found to be unsuitable in practice, a new rule incorporating the lessons learned from
experience has to be supplied. Even a well-tested rule may have to be changed because of the rapidly
changing situations in a developing or a developed society. The administration can change an unsuitable
rule without much ado and delay. Legislature takes time to enact a law. Even if the administration is

9
Friedmann, the state and the rule of in a mixed economy (1971)

8
 ADMINISTRATIVE LAW: MEANING, NATURE AND SCOPE

dealing with a problem case by case (as does a court) it could change its approach according to the
exigencies of the situation and the demands of justice. Such a flexibility of approach is not possible in
the case of the legislative or judicial process.

against the needs of social control?

Therefore, the objections of Administrative law are to ensure legal control of the administrative power and
to provide protection to the individual against abuse of such power. "The powerful engines of authority
must be prevented from running amok". 10 Administrative law seeks to adjust relationship between public
power and personal rights.

The modern concept of Rule of Law is fairly wide. This concept was developed by International
Commission of Jurists. This concept implies that the function of government in the society should be so
exercised as to create conditions in which the dignity of man as an individual is upheld. During the last
few years the Supreme Court of India has developed some fine principles of third world jurisprudence.
This could be seen by the extension of the Rule of Law to the poor and the downtrodden, the ignorant and
the illiterate who form the bulk of humanity in India. This ruling was provided by the court in response to
a letter drawing attention to unjustified and illegal detention of certain prisoners in jail for almost two to
three decades in the case of Veena Seth v. State of Bihar ((1982) 2 SCC 583).

The Courts in India have established Rule of Law society. The public administration has effectively
implemented rule of law. Today the administrative process has grown so much that we are not governed
but administered. The negative side of it is that respect for law degenerates into legalism which from its
very rigidity works as an injury to the nation.

Administrative law is considered as an intensive form of government. It deals with the pathology of
functions. The functions that are discharged by the administrative authorities differ from time to time
depending upon the changes in socio-economic conditions in any nation.11

C. Reasons for the Growth of Administrative Law

1. Changed relations of Authorities and Citizens

It can be seen from the present set up of the Administration that relations of the public authorities with the
citizens have been deeply changed. Citizens were not directly involved in the administration in the earlier
days. They were some what isolated from the sphere of Administration. There was a wide gap between the
Administrative organs and the then citizens. This is not the case today. Today in most of the states there is
10
Wade, Administrative law (1977)
11
http://www.manupatrafast.com/articles/PopOpenArticle.aspx?ID=61fb07af-8c80-4868-b707-
b9939e9dae87&txtsearch=Subject:%20Administrative%20Law

9
 ADMINISTRATIVE LAW: MEANING, NATURE AND SCOPE

a democratic Administration of either type. It is therefore, the association of the people is found to be
integral. The citizens are closely associated with the state Administration. In view of these changing
relations, the basic structure of the legal set up needs to be rearranged. The Administrative law, has
therefore, developed.

2. Origin of Welfare State Concept

During the period of 19th and 20th Century the concept of state was developed. According to the doctrine
of welfare the basic objective of the State Administration is to achieve maximum Welfare of the masses.
Each and every policy of the state should aim at maximum welfare of the people. It obviously added to the
functions of state. The theory of increasing functions of the state has been accepted by almost all. Increase
in functions of the states created several problems and complications. It was, therefore, thought necessary
to solve the problems to enact separate Branch of Law and hence the branch known as the Administrative
Law has been developed.

There is a radical change in the philosophy as to the role played by the State. The negative policy of
maintaining 'law and order' and of 'laissez faire' is given up. The State has not confined its scope to the
traditional and minimum functions of defence and administration of justice, but has adopted the positive
policy and as a welfare State has undertaken to perform varied functions.

3. Inadequacy of the Legislations

At present there are several drawbacks in the present Legislations. It would have been, therefore, found
very difficult to accommodate the new Administrative machinery in the existing legislations. In order to
meet the expanding needs of changed social, economic characterised problems, the new branch of law, i.e.
Administrative Law was necessary.

4. Inadequacy of Courts

As it is quite known to us that the present courts are overburdened with the huge work, it is almost
impossible for the present set of courts to solve the ever crowded problems of Administration along with
its own. It is therefore, proposed that there should be separate Branch of Law for the problems of
Administration and hence this new Branch has been developed.

5. Technical Experts are with Administrative Organs

At present all the technical experts are with the Administrative organs. In case it is attempted to shift the
legal job of Administration to the present judiciary and the present legislations, the same will be
handicapped due to lack of technical knowledge.

10
 ADMINISTRATIVE LAW: MEANING, NATURE AND SCOPE

Thus in order to utilize and use the talent of the technical experts which are at present with the
Administrative organs it is really wise creating new and coordinating branch of law i.e. Administrative
law.

And lastly, we can say that they act as an impartial arbitrator, and hence there is a need of separate
Administrative Law.

6. Union of both Administrative & Judicial Function

As per the Principle of separation of powers these organs of Administration have been proposed and
created. The Executive, the Legislative and Judiciary are these three organs which are functioning
separately. But in order to co-ordinate both Administrative Law for Administrative Organs.

7. The Judicial System Proved Inadequate

To decide and settle all the disputes. It was slow, costly inexpert, complex and formalistic. It was already
over-burndened, and it was not possible to expect speedy disposal of even very important matters. e.g.
Disputes between employers and employees, lock-outs, strikes etc. Therefore industrial tribunals and
labour courts were established which possessed the techniques and experts to handle these complex
problems.

8. Industrial Revolution and Urbanization

Industrial Revolution and technological development has contributed a great deal in adding to the
importance of administrative law. The individuals feel helpless in the wake of large-scale factory
production resulting in the concentration of means of production in few wealthy hands and causing
numerous hazards to life and health of over crowded cities where such factories exist. Therefore a lot
many individual can feel secure only if large scale organization based on sound principles of
administration caters to his interest. The said mean of transfer of communication have made the existent
go large scale of administration possible.

Due to the Industrial Revolution in world and due to the emergence of the factory system in our country,
people migrated from the countryside to the urban areas in search of employment in factories and large
scale industries. As a result of which there arose a need for increase in providing housing, roads, parks,
effective drainage system etc. Legislations were enacted to provide all these basic facilities and
accordingly administrative authorities were required to make rules and regulations, frame schemes for
effective infrastructure and facilities which ultimately lead to the growth of administrative law.

9) Emergency Situation

11
 ADMINISTRATIVE LAW: MEANING, NATURE AND SCOPE

In order to meet emergency situation the administration is usually to be armed with power for quick
responses and meeting the unforeseen calamity. It is only administrative adjudication which could meet
the emergency situations. So it is preferred to the regular courts.

10. Socio Political Arena

The Administration has to keep constant visual on the socio-political development. The policy changes
accommodation and adjust efforts are refined and applied by the administrative machinery which is never
outside the purview of judicial scrutiny.

11. Scope for experimentations:

There is scope for experiments in administrative process. Here, unlike legislation, it is not necessary to
continue a rule until commencement of the next session of the legislature. Here a rule can be made, tried
for some time and if it is found defective, it can be altered or modified within a short period. Thus,
legislation is rigid in character while the administrative process is flexible.

12. Can avoid technicalities:

The administrative authorities can avoid technicalities. Administrative law represents functional rather
than a theoretical and legalistic approach. The traditional judiciary is conservative, rigid and technical. It is
not possible for the courts to decide the cases without formality and technicality. The administrative
tribunals are not bound by the rules of evidence and procedure and they can take a practical view of the
matter to decide complex problems.

13. Can take preventive measures:

Administrative authorities can take preventive measures, e.g. licensing, rate fixing, etc. Unlike regular
courts of law, they have not to wait for parties to come before them with disputes. In many cases, these
preventive actions may prove to be more effective and useful than punishing a person after he has
committed a breach of any provision or law. As Freeman says, "Inspection and grading of meat answers
the consumer's need more adequately than does a right to sue the seller after the consumer is injured."

14. Can take effective steps:  

Administrative authorities can take effective steps for enforcement of the aforesaid preventive measures;
e.g. suspension, revocation and cancellation of licenses, destruction of contaminated articles, etc. which
are not generally available through regular courts of law

15. New Processes

12
 ADMINISTRATIVE LAW: MEANING, NATURE AND SCOPE

Another reason for the growth of administrative law is that it could evolve new techniques, processes,
instrumentalities and acquire expertise and specialization to meet complex problems of relationship
between the administration and citizens.

Final Glance

In simple words, the reason behind the growing importance of Administrative law is the assumption by the
Administrative authorities of very wide powers including legislative and judicial which was the result of
the social welfare state. Since Administrative law is primarily concerned with the control over the exercise
of their powers, i.e. to prevent Administrative authorities from abuse and misuse of powers, it has become
a subject of growing interest.12

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.13

D. Definition of Administrative Law

It‟s a tricky task to define administrative law. So far, it has not been defined in any substantial or
procedural law which governs the sovereign country, but certainly there are some aspects defined on
which entire base of administrative law is functioning. Administrative law is a body of law that governs
the administrative agencies like rule making, adjudication and enforcement of law in the government.
Administrative activities are mainly concerned with implementation of law and keeping eye on the bodies
which are governing or executing the country. Administrative laws deal with better functioning of
organization of legislatures and judiciary. It‟s a Judges made Law. It derives power from legislature to
rule which enriches the implementation of law. In a simple and vernacular sense, administrative law is
nothing but managing the ongoing activities of state with certain powers bestowed by legislatures.
Constitutional law defines the laws to be imposed and administrative law administers those laws in the
society and mainly concerned with proper functioning of various wings of government. Core of this
concept is, to impose the law enacted in such a manner that is derives benefits to each citizen of the
country. These are some definitions given by eminent personalities.

12
Jain, M.P. and Jain, S.N.Principles of Administrative Law, 5th Ed. 2007 Wadhwa and Co. Delhi, page no. 9
13
http://publicadministrationtheone.blogspot.in/2012/08/administrative-law-meaning-scope

13
 ADMINISTRATIVE LAW: MEANING, NATURE AND SCOPE

Government was construed as, Protector- who used to protect from fatal circumstances, a regulator-
who enact law and regulate functioning of the same, entrepreneur- encouraging business and transition
for generating income and lastly umpire- who adjudicates the matter of dispute prevailing between
parties.

William Wade said that, administrative law is required to control governmental power.5

For clarifying the concept of administrative law, a few definitions are being given here as follows :

Robson
As expressed by this English writer, "Administrative law should be regarded as the law relating to public
administration, in the same way as commercial law consists of the law relating to commerce or land law
the law relating to land".14

Robson defines administrative law as the law of public administration. Administrative lawyer abdicates
the law of public administration leaving its development almost entirely to the political scientist. Robson
does not differentiate between administrative law and law of public administration and therefore the
definition he attempted is too broad and general.

Dicey

Dicey defines it as denoting that portion of the national legal system which determines legal status and
liabilities of all state officials, which defines rights and liabilities of private individuals on their dealing
with public officials which specifies the procedure by which those rights and liabilities are enforced.15

Thus, he rejected the idea of Administrative Law that 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. 16 

The reason for this is that while analysing the concept of Administrative Law Dicey was always thinking
of French administrative law/rights system/Le DroitAdmanistratif that existed under Napoleon's
Bonaparte's rule. 17

H.W.R. Wade
According to Wade, Administrative Law is "the law relating to the control of governmental power." His
view is that the primary object of administrative law is to keep the powers of the government within

14
Robson “Administrative law in England” (1950)
15
Robson “Administrative law in Englang” in British Government since 1918, 88(1950)
16
Law of the Constitution 329-333 8th edition
17
http://publicadministrationtheone.blogspot.in/2012/08/administrative-law-meaning-scope

14
 ADMINISTRATIVE LAW: MEANING, NATURE AND SCOPE

their legal bounds, so as to protect the citizens against their abuse. This definition places emphasis on
the object of administrative law by touching the 'heart of subject'. It does not, however, define the
subject. Further, it also does not deal with the powers and duties of administrative authorities nor with
the procedure required to be followed by them.

E. NATURE AND SCOPE OF ADMINISTRATIVE LAW

It is difficult to evolve a satisfactory definition of Administrative law so as to demarcate articulately its

nature, scope and content. There are many formulations in the field but none of them is completely
satisfactory; either they are too broad or too narrow; either they include much more than what properly
shall be included within the scope of the subject, or else, they leave out some essential aspect or element
of Administrative Law.

The American approach to Administrative Law is denoted by the definition of Administrative Law as
propounded by the leading scholar, Kenneth Culp Davis. According to him, Administrative Law is the
law concerning the powers and procedures of administrative agencies, including especially the law
governing judicial review of administrative action. It does not include the enormous mass of substantive
law produced by the agencies. An administrative agency, according to Davis, is a governmental
authority, other than a court and other than a legislative body, which affects the rights of private parties
through either adjudication or rule-making.

According to Sir Ivor Jennings, Administrative law is the law relating to the Administration. It
determines the organization, powers and duties of administrative authorities.

The difficulty in this formulation of Administrative Law is that, on the face of it, it does not include the
consideration of purely discretionary functions (which may be called administrative) not falling within
the category of legislative or quasi-judicial. In modern Administrative Law, discretionary administrative
functions are vast in scope and range. The control-mechanism of these functions constitutes an important
subject for study in Administrative Law.

The emergence of social welfare concept has affected the democracies very profoundly. It has led to
state activism. There is phenomenal increase in the area of state operation. A number of functions which
were previously left to private enterprise have been taken over by the state. it runs buses, railways and
postal services. It undertakes planning of social and economic life of the community with a view to raise
the living standards of the people and reduce concentration of wealth. It grants, refuses and revokes
licences. The functions of modern state may broadly be placed into five categories, viz., the State as
protector, provider, entrepreneur, economic controller and arbiter.18 The ideal of social welfare state is

18
Friedmann, The State and Rule of law in mixed economy(1971)

15
 ADMINISTRATIVE LAW: MEANING, NATURE AND SCOPE

sought to be translated into reality through State planning of economic resources and social control of
private enterprise with a view to create a socialistic pattern of society, which involves improving the
economic conditions of people keeping in view the demands of social justice. All resources of the
community are organised and husbanded with that end in view.

Expanding horizons of administrative jurisdiction.—As there is unprecedented increase in state

activities, the executive exercises very wide powers. Apart from pure administrative and executive
functions, by way of delegated legislation it exercises legislative functions and makes a plethora of rules,
regulations, bye-laws, notifications, etc. substantially affecting the rights of public at large. Similarly,
administrative agencies also exercise powers of adjudication of disputes by establishing a number of
administrative tribunals. Provisions have been made in various socio-economic statutes taking away
jurisdiction of competent courts and virtually conferring blanket powers on these tribunals. Over and
above quasi-legislative and - quasi-judicial powers, administrative agencies also possess wide
discretionary powers. There are various preventive detention laws under which they can detain and put
behind bars citizens and subjects even without regular trial by depriving of their freedom and liberty.
There is a tendency of abuse and misuse of discretionary power on the part of officers.

In view of wide discretionary powers of the executive, Lord Denning has rightly observed, "Properly
exercised the new powers of the executive lead to the welfare state, but abused they lead to Totalitarian
State.19

As regards India, the administrative process has grown so much that it will not be out of place to say that
we are not governed but administered. The philosophy of welfare state has been specifically embodied in
the Constitution. In this context the Law Commission of India rightly observed :

"Society in the twentieth century has become exceedingly complex and governmental functions have
multiplied. The change in the scope and character of government from negative to positive, that is, from
the laissez faire to the public service state, has resulted in the concentration of considerable power in the
hands of the executive branch of government. The direct result of this has been the growth of
Administrative Law. The problem before us thus is to prevent the potential threat to justice and freedom
from greatly extended powers and functions of the modern state. Welfare schemes are planned and
introduced by the government in all progressive democratic states. To devise and carry out any general
welfare scheme, it is always necessary to affect adversely some private rights of property and personal
liberty. These facts have to be faced by all those who live in a welfare state. The trend is the same in all
countries whether it is in the United Kingdom, United States of America, France or India. The real

19
Freedom under the law,126 (1949)

16
 ADMINISTRATIVE LAW: MEANING, NATURE AND SCOPE

problem therefore, is to reconcile freedom and justice for the private citizen with the necessities of modern
government charged with the promotion of far reaching social or economic policies".20

In view of these circumstances, a study of administrative law is indispensable. In spite of written

Constitution, guarantee of fundamental rights and the doctrine of judicial review, individual liberty and
personal freedom is interfered with by the executive according to the sweet will of the officers. This is so
because there are a number of preventive detention laws.

Judicial review too has been considerably restricted. Limitations have been imposed upon it, such as in
the field of subjective satisfaction. In many statutes and even in the Constitution, provisions have been
made taking away the jurisdiction of competent courts including High Courts. In this way, the judiciary is
being rendered less effective. It is, therefore, necessary to check the executive and government from
abusing and misusing the powers which have been conferred on it and provide remedies to those who are
affected and aggrieved by the administrative actions. According to Schwartz, there is basic inequality
between the private party and the government agency and the goal of administrative law is to ensure that
the individual and the state are placed on a plane of equality before the bar of justice.21

Administrative law is essentially Judge made law. It is a branch of public law as compared to private law-
relations inter-se. Administrative law is an ever-expanding subject in developing society and is bound to
grow in size as well as quality in coming the decades. We need an efficient regulatory system, which
ensures adequate protection of the people’s Rights. Principles of administrative law emerge and
development whenever any person becomes victim of arbitrary exercise of public power. Therefore
administrative law deals with relationship of individual with power.

The administrative agencies derive their authority from constitutional law and statutory law. The laws
made by such agencies in exercise of the powers conferred on them also regulate their action. The
principle features are: (a) transfer of power by legislature to administrative authorities, (b) exercise of
power by such agencies, and (c) judicial review of administrative decisions. Administrative law relates to
individual rights as well as public needs and ensures transparent, open and honest governance, which is
more people-friendly.

Inadequacy of the traditional Court to respond to new challenges has led to the growth of administrative
adjudicatory process. The traditional administration of justice is technical, expensive and dilatory and is
not keeping pace with the dynamics of ever increasing subject matter. Because of limitation of time, the
technical nature of legislation, the need for flexibility, experimentations and quick action resulted in the
inevitable growth of administrative legislative process.

20
The law commission of India (1958) 14th report
21
Administrative law, (1977)

17
 ADMINISTRATIVE LAW: MEANING, NATURE AND SCOPE

Administrative law deals with the organization and powers of administrative and powers quasi-
administrative agencies

Administrative law primarily concerns with official action and the procedure by which the official action
is reached.

Administrative law includes the control mechanism (judicial review) by which administrative authorities
are kept within bounds and made effective.22

F. DROIT ADMINISTRATIFF

Meaning of Droit administratiff: French administrative law is known as Droit Administratif which
means a body of rules which determine the organization, powers and duties of public administration and
regulate the relation of the administration with the citizen of the country. Droit Administrative does not
represent the rules and principles enacted by Parliament. It contains the rules developed by administrative
courts.

Napoleon Bonaparte was the founder of the Droit administrative. It was he who established the Conseil
d’Etat. He passed an ordinance depriving the law courts of their jurisdiction on administrative matters and
another ordinance that such matters could be determined only by the Conseil d’Etat.

Waline, the French jurist, propounds three basic principles of Droit administrative:

1. the power of administration to act suo motu and impose directly on the subject the duty to obey its
decision;

2. the power of the administration to take decisions and to execute them suo motu may be exercised only
within the ambit of law which protects individual liberties against administrative arbitrariness;

3. the existence of a specialized administrative jurisdiction.

One good result of this is that an independent body reviews every administrative action The Conseil
d’Etat is composed of eminent civil servants, deals with a variety of matters like claim of damages for
wrongful acts of Government servants, income-tax, pensions, disputed elections, personal claims of civil
servants against the State for wrongful dismissal or suspension and so on. It has interfered with
administrative orders on the ground of error of law, lack of jurisdiction, irregularity of procedure and
detournement depouvior (misapplication of power). It has exercised its jurisdiction liberally.

22
http://persmin.gov.in/otraining/UNDPProject/undp_modules/Administrative%20Law%20N%20DLM.pdf, last
visited 9th February, 2016

18
 ADMINISTRATIVE LAW: MEANING, NATURE AND SCOPE

Main characteristic features of droit administratif. The following characteristic features are of the Droit
Administratif in France:-

1. Those matters concerning the State and administrative litigation falls within the jurisdiction of
administrative courts and cannot be decided by the land of the ordinary courts.

2. Those deciding matters concerning the State and administrative litigation, rules as developed by the
administrative courts are applied.

3. If there is any conflict of jurisdiction between ordinary courts and administrative court, it is decided
by the tribunal des conflicts.

4. Conseil d’Etat is the highest administrative court.

Despite the obvious merits of the French administrative law system, Prof. Dicey was of the opinion that
there was no rule of law in France nor was the system so satisfactory as it was in England. He believed
that the review of administrative action is better administered in England than in France.

The system of Droit Administratif according to Dicey, is based on the following two ordinary principles
which are alien to English law—

Firstly, that the government and every servant of the government possess, as representative of the nation,
a whole body of special rights, privileges or prerogatives as against private citizens, and the extent of
rights, privileges or considerations which fix the legal rights and duties of one citizen towards another.
An individual in his dealings with the State does not, according to French law; stand on the same footing
as that on which he stands in dealing with his neighbor.

Secondly, the government and its officials should be independent of and free from the jurisdiction of
ordinary courts.

It was on the basis of these two principles that Dicey observed that Droit Administratif is opposed to
rule of law and, therefore, administrative law is alien to English system. But this conclusion of Dicey
was misconceived. Droit Administratif, that is, administrative law was as much there in England as it
was in France but with a difference that the French Droit Administratif was based on a system, which
was unknown to English law. In his later days after examining the things closely, Dicey seems to have
perceptibly modified his stand.

Merits: In France the organ of the review of administrative decisions is itself a part of the administration,
as the work is undertaken by the Conseil d’Etat, assisted since 1954 by the local administrative Courts.
Inspite of this intimate link between the supervising or reviewing tribunals and the administration, the

19
 ADMINISTRATIVE LAW: MEANING, NATURE AND SCOPE

onus of proof in the French System is always on the administration. The administrative agencies must be
prepared to justify their acts. “Paradoxically” observe Ridley and Blondel, “it(Conseil d’Etat) was able
to scruitinize administrative decisions more thoroughly than the ordinary courts ever had done.23

Despite its overall superiority, the French administrative law cannot be characterized with perfection. Its
glories have been marked by the persistent slowness in the judicial reviews at the administrative courts
and by the difficulties of ensuring the execution of its last judgment. Moreover, judicial control is the
only one method of controlling administrative action in French administrative law, whereas, in England,
a vigilant public opinion, a watchful Parliament, a self-disciplined civil service and the jurisdiction of
administrative process serve as the additional modes of control over administrative action. By contrast, it
has to be conceded that the French system still excels its counterpart in the common law countries of the
world.24

23
Upadhayaya, Dr. J.J.R., Administrative Law, Central Law Agency, 9 th edition 2014, page no. 20
24
Supra 9

20
 ADMINISTRATIVE LAW: MEANING, NATURE AND SCOPE

Bibliography

 Cann, Steven J, Administrative Law 3rd Ed., 2002

 Kesari, U.P.D, Lectures on Administrative Law, 15th Ed, 2005, Central
Massey, I.P., Administrative Law, 5th Ed. 2003, Eastern Book
Company,Lucknow
 Jain, M.P. and Jain, S.N.Principles of Administrative Law, 5th Ed.
2007Wadhwa and Co. Delhi
 Upadhya , JJR, Administrative Law, Central Law Agency, 2012

Webliography

 http://www.academia.edu/5498367/Administrative_Law_in_India, last
visited on feb 2nd, 2016
 http://www.manupatrafast.com/articles/PopOpenArticle.aspx?ID=61fb07af-
8c80-4868-b707-b9939e9dae87&txtsearch=Subject:%20Administrative
%20Law, last visited on feb 9th, 2016
 http://publicadministrationtheone.blogspot.in/2012/08/administrative-law-
meaning-scope-and.html, last visited on feb 9th ,2016
 LawAgency, Allahabad

21
ADMINISTRATIVE LAW: MEANING, NATURE AND SCOPE

22