Administrative law

1. What is administrative law? and reason for its growth?

Answer:
Definition
Branch of law governing the creation and operation of administrative agencies.
Of special importance are the powers granted to administrative agencies, the
substantive rules that such agencies make, and the legal relationships between
such agencies, other government bodies, and the public at larger
Administrative law is a branch of public law. It deals with the relationship of
individuals with the government. It determines the organisation and power
structure of administrative and quasi-judicial authorities to enforce the law. It
is primarily concerned with official actions and procedures and puts in place a
control mechanism by which administrative agencies stay within bounds.
The growth of Administrative Law.
ENGLAND
In 1885 Albert Venn Dicey, a British jurist, rejected the whole concept of
Administrative law. Hence, the numerous statutory discretionary powers given
to the executives and administrative authorities and control exercised over
them were all disregarded to be able to form a separate branch of law by the
legal thinkers. Until the 20th Century, Administrative law was not accepted as
a separate branch of law. It was only later that the existence of Administrative
law came to be recognised.
The Lord Donoughmore Committee, in 1929, recommended for better
publication and control of subordinate legislation. The principle, King can do no
wrong, was abolished and the scope of Administrative law expanded by virtue
of the Crown Proceeding Act in 1947 which allowed initiating civil proceedings
against the Crown as against any private person.
In 1958, Tribunals and Inquiries Act was passed for better control and
supervision of Administrative Decisions.
Breen v Amalgamated Engineering Union [1971] 2 QB 175 was the first case
wherein the existence of Administrative law in the United Kingdom was
declared.
UNITED STATES OF AMERICA
In the United States of America, the existence of administrative law and its
growth was ignored until it grew up to become the fourth branch of the State.
By then many legal scholars like Frank Goodnow and Ernst Freund had already
authored a few books on Administrative law.
It was in 1933 that a special committee was appointed to determine how
judicial control over administrative agencies could be exercised. Thereafter, in
1946 The Administrative Procedure Act was passed which provided for judicial
control over administrative actions.
INDIA
The Mauryans and the Guptas of ancient India had a centralised administrative
system. It was with the coming of the British that Administrative law in India
went through a few changes. Legislations regulating administrative actions
were passed in British India.
After independence, India adopted to become a welfare state, which
henceforth increased the state activities. As the activities and powers of the
Government and administrative authorities increased so did the need for ‘Rule
of Law’ and ‘Judicial Review of State actions’.
Henceforth, if rules, regulations and orders passed by the administrative
authorities were found to be beyond the authorities legislative powers then
such orders, rules and regulations were to be declared ultra-vires,
unconstitutional, illegal and void.
Reasons for growth of Administrative law.
 The concept of a welfare state
As the States changed their nature from laissez-faire to that of a welfare state,
government activities increased and thus the need to regulate the same. Thus,
this branch of law developed.
 The inadequacy of legislature
The legislature has no time to legislate upon the day-to-day ever-changing
needs of the society. Even if it does, the lengthy and time-taking legislating
procedure would render the rule so legislated of no use as the needs would
have changed by the time the rule is implemented.
Thus, the executive is given the power to legislate and use its discretionary
powers. Consequently, when powers are given there arises a need to regulate
the same.
 The inefficiency of Judiciary
The judicial procedure of adjudicating matters is very slow, costly complex and
formal. Furthermore, there are so many cases already lined up that speedy
disposal of suites is not possible. Hence, the need for tribunals arose.
 Scope for the experiment
As administrative law is not a codified law there is a scope of modifying it as
per the requirement of the State machinery. Hence, it is more flexible. The
rigid legislating procedures need not be followed again and again.

2. Discuss nature and scope of administrative law? d/f with

constitutional law?
Answer: nature
Administrative law is the branch of public law which defines the relation
between individuals and state. But it is not a law in a true sense like other
laws such as property law or labor law. It is also not like private law which
deals with relations of individual inter se. it is a law to administer the
administrative authorities and check them from making any arbitrary
decisions. Administrative law deals with the organization, powers and
duties of the administrative authorities and also the procedure followed by
the officials while exercising the powers. Administrative law is limited to the
law which limits the power of administrative authorities while exercising
the powers. It also provides remedies in the favour of the public when the
rights of the public encroached.
Its main purpose is to focus on the judicial review of administrative actions.
In this way, there is protection from the arbitrary actions of the
administrative actions. Administrative actions can be legislative, executive
or judiciary. Administrative can do all of three actions when which is
required to do so. By delegation legislation administrative has the power to
make law when it comes to implementation of administrative acts as an
executive and when it comes to making quick decisions then the
administrative can act as the judiciary. The nature of administrative law
changes according to the need.
Scope of Administrative law
Scope means an area of study or the variety of subjects that are being
discussed or considered. As administrative law is almost judge-made law so
it changes according to societal needs but in the guidance of the basic
principles so the scope of this law is wider in comparison to other laws.
Administrative law determines the powers and duties of the organization
and the administrative authorities. The scope of administrative law is wide
enough because, with the requirement of time, Administrative Law
incorporates and culls out new rules and regulations. The concept of
administrative law is founded on the following:-
1. Principles of natural justice and for rulemaking
2. Notion of the Rule of law
3. Law conferred power to administration as per Article 13 of the Indian
Constitution
4. Accountability of powers, no power is absolute or uncontrolled
5. There should be a reasonable restriction on the regulations of such
powers
6. The power of the court to issues writs
7. Opinions of public and mass media.

3. What is the rule of law? Discuss its applicability in Indian legal

system?
“The bedrock of our democracy is the rule of law and that means we have
to have an independent judiciary, judges who can make decisions
independent of the political winds that are blowing.”-Caroline Kennedy
In order to understand the concept of rule of law, it is to be comprehended
that the state is governed not by the ruler or the nominated
representatives of the people but by the law. The term ‘Rule of Law’ is
nowhere defined in the Indian Constitution but this term is often used by
the Indian judiciary in their judgments. Rule of law has been declared by the
Supreme Court as one of the basic features of the Constitution so it cannot
be amended even by the constitutional amendment. Rule of law is seen as
an integral part of good governance.
Concept of Rule of Law
The originator of the concept of rule of law was Sir Edward Coke the Chief
Justice in James I Reign.
The concept of rule of law is of old origin. Greek philosophers such as Plato
and Aristotle discussed the concept of rule of law around 350 BC. Plato
wrote “Where the law is subject to some other authority and has none of
its own, the collapse of the state, in my view, is not far off; but if law is the
master of the government and the government is its slave, then the
situation is full of promise and men enjoy all the blessings that the gods
shower on a state”. Aristotle wrote “law should govern and those who are
in power should be servant of the laws.”
The derivation of the phrase ‘ Rule of Law’ is from the French phrase ‘la
principe de legalite’ which implies principle of legality. By this phrase it
refers to a government based on principles of law and not of men. One of
the basic principles of Constitution is rule of law and this concept is up to
standard in both India and America Constitution.
Meaning of Rule of Law
To simply understand the meaning of rule of law, it means that no man is
above law and also that every person is subject to the jurisdiction of
ordinary courts of law irrespective of their position and rank.
The term ‘rule of law’ is originated from England and India has taken this
concept. The concept of rule of law further requires that no person should
be subjected to harsh or arbitrary treatment. The word ‘law’ in rule of law
means that whether he is a man or a society, he must not be governed by a
man or ruler but by law. In other words, as per Article 13 of the Indian
Constitution rule of law means law of land.
According to Black’s Law Dictionary: “Rule of Law” means legal principles of
day to day application, approved by the governing bodies or authorities and
expressed in the form of logical proposition.
According to Oxford Advance Learner’s Dictionary: “Rule of Law” means the
situation in which all the citizens as well as the state are ruled by the law.
Postulates of Rule of Law
In 1885, Professor A.V Diceydeveloped this concept of Coke and
propounded three principles or postulates of the rule of law in his classic
book ‘Law and the Constitution.’ According to Professor A.V Dicey, for
achieving supremacy of law three principles of postulates must be followed
which are as follows:
·Supremacy of law,
·Equality before law and
·Predominance of Legal Spirit
1. Supremacy of law
As per the first postulate, rule of law refers to the lacking of arbitrariness or
wide discretionary power. In order to understand it simply, every man
should be governed by law.
According to Dicey, English men were ruled by the law and the law alone
and also where there is room for arbitrariness and that in a republic no less
than under a monarchy discretionary authority on the part of the
Government must mean insecurity for legal freedom on the part of its
subjects. There must be absence of wide discretionary powers on the rulers
so that they cannot make their own laws but must be governed according
to the established laws.
2. Equality before law
According to the second principle of Dicey, equality before law and equal
subjection of all classes to the ordinary law of land to be administered by
the ordinary law courts and this principle emphasizes everyone which
included government as well irrespective of their position or rank. But such
element is going through the phase of criticisms and is misguided. As stated
by Dicey, there must be equality before law or equal subjection of all
classes to the ordinary law of land. French legal system of Droit
Administrative was also criticized by him as there were separate tribunals
for deciding the cases of state officials and citizens separately.
3. Predominance of Legal Spirit
According to the third principle of Dicey, general principles of the Indian
Constitution are the result of the decisions of the Indian judiciary which
determine to file rights of private persons in particular cases. According to
him, citizens are being guaranteed the certain rights such as right to
personal liberty and freedom from arrest by many constitutions of the
states (countries). Only when such rights are properly enforceable in the
courts of law, those rights can be made available to the citizens. Rule of law
as established by Dicey requires that every action of the administration
must be backed and done in accordance with law. In modern age, the
concept of rule of law opposes the practice of conferring discretionary
powers upon the government and also ensures that every man is bound by
the ordinary laws of the land as well as signifies no deprivation of his rights
and liberties by an administrative action.
Rule of Law Under Indian Constitution
In order to develop Indian democracy, rule of law has played a great role. At
the time of framing of Constitution, the framers had two options i.e. USA
and England. Some of the provisions were adopted from USA and some of
them were adopted from England. Rule of law was adopted from England
by our constitutional fathers and many provisions were incorporated in the
Indian Constitution. Indian Constitution is considered to be supreme and no
one is above Indian Constitution. Rule of law is also given impliedly in the
preamble and such concept is enshrined in Part III of the Indian
Constitution.
In case of violation of such rights, one can approach Supreme Court or High
Court under Article 32 and 226 of the Indian Constitution. The Constitution
of India is enriched with the principles of law i.e. justice, equality and
liberty. Any law made by the Central government or State government must
be complied in accordance with the Constitution of India. If any law made
by the legislature contravenes with the provisions of the Constitution then
such law will be declared void.
Case law related to rule of law
ADM Jabalpur v. Shivkant Shukla
This case is also known as “Habeas Corpus case”. It is one of the most
importantcase when comes to rule of law. The question that was raised
before the hon’ble court was that whether there was any rule of law in
India apart from Article 21 of the Indian Constitution. It was in context
relating to the proclamation of emergency where the enforcement of
Articles 14, 21 and 22 were suspended.

Som Raj v. State of Haryana

In this case it was held that the absence of arbitrary power is the postulate
of rule of law upon which the whole constitutional edifice is dependent.
Union of India v. Raghubir Singh
In this case it was held by the court that a considerable degree that governs
the lives of the people and regulates the State function flows from the
decision of the superior courts.

4. What is the separation of power? Discuss its applicability in

Indian legal system?
Answer:
In India, a separation of functions rather than of powers is followed. Unlike
in the US, in India, the concept of separation of powers is not adhered to
strictly. However, a system of checks and balances have been put in place in
such a manner that the judiciary has the power to strike down any
unconstitutional laws passed by the legislature.
Today, most of the constitutional systems do not have a strict separation of
powers between the various organs in the classical sense because it is
impractical. The Constitution of India embraces the idea of separation of
powers in an implied manner. Despite there being no express provision
recognizing the doctrine of separation of powers in its absolute form, the
Constitution does make the provisions for a reasonable separation of
functions and powers between the three organs of Government.
Three Organs Of Government
Legislature: The chief function of the legislature is to enact lawsIt is the
basis for the functioning of the other two organs, the executive and the
judiciary.It is also sometimes accorded the first place among the three
organs because until and unless laws are enacted, there can be no
implementation and application of laws.
Executive: The executive is the organ that implements the laws enacted by
the legislature and enforces the will of the state.It is the administrative
head of the government.Ministers including the Prime/Chief Ministers and
President/Governors form part of the executive.
Judiciary: The judiciary is that branch of the government that interprets the
law, settles disputes and administers justice to all citizens.The judiciary is
considered the watchdog of democracy, and also the guardian of the
Constitution.It comprises of the Supreme Court, the High Courts, District
and other subordinate courts.
Background of the concept
This concept was first seen in the works of Aristotle, in the 4th century BCE,
wherein he described the three agencies of the government as General
Assembly, Public Officials and Judiciary.
In the Ancient Roman Republic too, a similar concept was followed.
In modern times, it was 18th-century French philosopher Montesquieu who
made the doctrine a highly systematic and scientific one, in his book De
lesprit des lois (The Spirit of Laws).
His work is based on an understanding of the English system which was
showing a propensity towards a greater distinction between the three
organs of government.
The idea was developed further by John Locke.
Purpose of the Separation:
It is to prevent abuse of power by a single person or a group of individuals.
It will guard the society against the arbitrary, irrational and tyrannical
powers of the state, safeguard freedom for all and allocate each function to
the suitable organs of the state for effective discharge of their respective
duties.
Meaning Of Separation Of Powers
Separation of powers divides the mechanism of governance into three
branches i.e. Legislature, Executive and the Judiciary. Although different
authors give different definitions, in general, we can frame three features of
this doctrine.
 Each organ should have different persons in capacity, i.e., a person with
a function in one organ should not be a part of another organ.
 One organ should not interfere in the functioning of the other organs.
 One organ should not exercise a function of another organ (they should
stick to their mandate only).
 Thus, these broad spheres are determined, but in a complex country like
India there often arises conflict and transgression by one branch over
the other.
Significance Of The Doctrine
 Keeps away autocracy
 Safeguards individual liberty
 Helps create an efficient administration
 Judiciary’s independence is maintained
 Prevents the legislature from enacting arbitrary or unconstitutional
laws
Some of Articles of the constitution:
Article 50: This article puts an obligation over the State to separate the
judiciary from the executive. But, since this falls under the Directive
Principles of State Policy, it is not enforceable.

Articles 53 and 154: It provide that the executive power of the Union
and the State shall be vested with the President and the Governor and
they enjoy immunity from civil and criminal liability.

Articles 121 and 211: These provide that the legislatures cannot discuss
the conduct of a judge of the Supreme Court or High Court. They can do
so only in case of impeachment.
 Article 123: The President, being the executive head of the country, is
empowered to exercise legislative powers (Promulgate ordinances) in
certain conditions.

Article 361: The President and Governors enjoy immunity from court
proceedings., they shall not be answerable to any court for the exercise
and performance of the powers and duties of his office.
Kesavananda Bharati v State of Kerala (1973): In this case, the SC held
that the amending power of the Parliament is subject to the basic
features of the Constitution. So, any amendment violating the basic
features will be declared unconstitutional.

Swaran Singh Case (1998): In this case, the SC held the UP Governor’s
pardon of a convict unconstitutional.

Ram Jawaya Kapoor V State of Punjab(1955):

In this case it was held that 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 be very
well said that our Constitution does not contemplate assumption by one
organ or part of the state of functions that essentially belong to another.

Indira Nehru Gandhi v. Raj Narain (1975):

Where the dispute regarding Prime Ministers election was pending
before the Supreme Court, it was held that adjudication of a specific
dispute is a judicial function which parliament, even under constitutional
amending power, cannot exercise.

So, the main ground on which the amendment was held ultra vires was
that when the constituent body declared that the election of Prime
Minister wouldn’t be void, it discharged a judicial function that according
to the principle of separation it shouldn’t have done. The place of this
doctrine in the Indian context was made a bit clearer after this
judgment.

5. What is droit administratif? d/f it with rule of law?

Answer:
Rules of Droit Administratif
Droit Administratif is a representation of judge-made rules decided in a
court of law and not of the rules carved out from the French Parliament.
The series of rules that, if compiled together, will result in the Droit
Administratif are as follows:
 Rules that deal with administrative authorities and officials associated
with the same.
 Rules that deal with public service operations to fulfil citizens’ needs.
 Rules that deal with administrative adjudication.
While the first rule applies to appointment, removal, allowances,
obligations, the second rule was made to focus on the welfare of the public
which was to be operated directly by the public officials or could have been
delegated by them and carried out under their authority. Private agencies
could also have been appointed to execute such rules. The third rule makes
it clear that the highest administrative court in the land is Conseil d’Etat.
Infringement of any rights or causing of injury associated with the private
citizens of the land would directly be handled by the administrative courts.
Characteristics of Droit Administratif
From the above highlights about Droit Administratif, what can be inferred
are some of the characteristic features that this administrative law
possesses. They are listed below:
 The matters that are associated with the State and administration
oriented litigation are to be decided by the administrative courts and
not by the ordinary courts of the land.
 While deciding matters concerning litigation as mentioned above, the
rules that are applied in the same are developed from the courts
itself.
 The deciding agency in matters of jurisdiction conflicts between the
two courts, namely the administrative and ordinary, is known as
Tribunal des Conflicts.
 The Droit Administratif acts as a safeguard for the government
officials from the authority of the ordinary courts.
  The development of Conseil d’Etat is not a one-day plan but the
product of a long going process surrounding the French Revolution. It
played the role of both a consulting and an adjudicating body.
Rule of Law and Droit Administratif: A Comparison
Dicey’s concept of rule of law delivers the supremacy of law holding that no
man is above law or can produce any judgement above the established law
of the land. Droit Administratif evolved as a concept opposing the very
formulation by Dicey. Dicey preferred the usage of the term regime
administrator while explaining Droit Administratif. The formation of Conseil
d’Etat was made to provide limits to the exercise of unrestricted power of
the executive. But in doing the same, the judiciary was not able to gain
recognition for the members who were elected to abide by the checks of
the executive.
The Conseil d’Etat was merely an advisory body for the ministers who were
the real judges. No public sessions were held and the power to deliver
judgments was also absent from the body. What the body reflected was
based on the government’s perspective only. This was what the Dicey
concept of rule of law opposed. If this argument, as laid down by Dicey, is
viewed, one cannot easily point out that Dicey is wrong on his grounds. The
judiciary is supposed to be separated from the executive on several aspects.
It is correct to say that these organs of the government are independently
independent but not interdependently independent. The motive with which
Napoleon Bonaparte formulated the adjudicating body was not transparent
enough if it did not abide by the concept of rule of law which is universal in
nature. According to Dicey, the Droit Administratif was based on two
beliefs:
 The government and its servants possess special and privileged rights
as compared to any normal citizen of the nation. Thus, there lies no
equality as to the rights available to government officials and the
citizens of the same nation.
 Government officials are not subjected to the jurisdiction of the
courts in the nation.
6. What do you mean by administrative action? How it will be
identified? as legislation, judiciary, executive?
Answer:
MEANING OF ADMINISTRATIVE ACTION
Administrative action is the action which is neither legislative nor judicial in
nature but only concerned with the analysis and treatment of a particular
situation and is devoid of generality. It has no procedure of collecting
evidence and weighing arguments but only based upon subjective
satisfaction where decision is based on policy and expediency. It does not
decide a right or wrong , neither it ignores the principles of natural justice
completely though it may affect a right. Unless the statute provides
otherwise, a minimum of the principles of natural justice must always be
observed depending on the fact situation of each case.
Administrative action may be statutory, having the force of law, or non
statutory, devoid of such legal force. The bulk of the administrative action is
statutory because a statute or the Constitution gives it a legal force but in
some cases it may be non-statutory, such as issuing directions to
subordinates not having the force of law, but its violation may be visited
with disciplinary action. Though by and large administrative action is
discretionary and is based on subjective satisfaction, however, the
administrative authority must act fairly, impartially and reasonable.
Identification of administrative action: CLASSIFICATION
Administrative action is classified broadly into three main organs of the
government namely-
 Legislative
 Executive
 Judiciary
In Jayantilal Amritlal Shodhan V. F.N Rana and Ors
Generally an administrative action can be further bifurcated into 3 parts-
 Quasi-legislative action or Rule making: It includes the rule making
power and delegated legislation. Under this organ the administration
performs the function of legislation in such situations where it is not
 possible for any legislation to legislate laws for the kind of conflicts
arising.
 Quasi-Judicial action or Rule decision action: It includes such
conditions under which the administration puts on the hat of the
judiciary and confers the special power of taking decisions in cases
where legal rights of individual are effected.
 Purely administrative action or Rule application action: This includes
the actions which are neither legislative nor judiciary but purely
administrative in nature.
In Article 14 and 21 of the constitution of India, the concept of natural
justice is defined in case of consequences suffered in administrative action.
1. Nemo in propria causa judex, esse debet – no one should be made a
judge in his own cause, or the rule against bias.
2. Audi alteram partem – no one should be condemned unheard.
In case of A.K. Kraipak v. Union of India, the Court held that in order to
determine whether the action of the administrative authority is quasi-
judicial or administrative in nature, one has to see the power conferred, to
whom power is given, the framework within which power is conferred and
the consequences.

7. Explain historical background of administrative law? In U.K, U.S,

FRANCE and INDIA?
Reasons for Expansion of Administrative Law
The rapid growth of administrative law during the twentieth century owes
much to the change in the concept of role and function of the modern
government. The doctrine of laissez faire has given place to the doctrine of
welfare state and this has led to the proliferation of administrative powers
and functions.
It is demanded by the people that the government must solve their
problems rather than merely define their rights. It is felt that the right of
equality under the Indian Constitution will be a sterile right unless the
government comes forward to actively help the weaker sections of the
society to bring about equality in reality.
The regulation of the patterns of ownership, production and distribution is
considered the responsibility of any good government to ensure the
maximum good of the maximum number. This again has led to the growth
of administrative process and administrative law.
A welfare state has necessarily to undertake legislation on an ever widening
front, if the ultimate aim of a socialistic pattern of society operating within
the domain of the rule of law is to be evolved by democratic process.
The inadequacy of the traditional type of judicial system to give that quality
and quantity of performance which is required in the twentieth century for
the functioning of welfare and functional government is the biggest single
factor which has led to the growth of administrative process and law. Like
medicine, in law there is a shift from punitive to preventive justice.
Litigation is no more considered a battle to be won but a disease to be
cured. Inadequacy of the traditional type of judicial process to respond to
this new challenge has led to the growth of administrative adjudication.

8. Discuss the sources of administrative law?

Introduction
Administrative Law is the law relating to the administrative operation of
government. It deals with the powers and duties of administrative
authorities, the procedure followed by them in exercising the powers and
discharging the duties and the remedies available to an aggrieved person
when his rights are affected by any administrative action. There were
various reasons for the expansion of administrative law like the change in
the concept of the government, the inadequacy of judicial system,
evolution of socialistic pattern of society etc. This article will cover how
Administrative Law was built so extensively in the country to be in a
position in which it is today.
Sources of Administrative Law
General
Source means the origin of the material content of rule or the formal stamp
of authority as law. With the view to control administrative operation of the
government, it is necessary to know the sources of administrative powers.
In common law countries like India, there is no droit administratiff in the
sense of there being a different or separate system, and administrative law
is a part of the ‘ordinary law’ of the land. Sources of American
Administrative Law are common law, statutes and implied powers of the
administration.
The Constitution of India
India has a written Constitution which is the supreme law of the land. Being
the grundnorm of the legal system of the country, it conditions and
overrides all legislative and administrative actions. Besides providing for
functional organisation and consequential growth in administrative process,
the Constitution has also provided for an elaborate control mechanism. The
Constitution demarcates the legislative and administrative power of the
Union and the States conferring on the courts, the power to review
legislative and administrative action and adjudge their constitutionality. All
the legislative actions of the administration have been expressly brought by
the Constitution within the purview of Article 13 by defining ‘Law’ as
including ‘order’, ‘bye-law’, ‘rule’ and ‘notification’ etc. having the force of
law. All these features of the Constitution influence and shape the nature
and content of administrative law in India.
Statutes
Statute is the principal source of administrative power. Statute emanates
from the Constitution. Under the Constitution, law-making power has been
given to Parliament and State Legislatures. Administration is given powers
by statutes. All the statutes have to conform to the constitutional patterns.
Exercise of administrative powers has to conform to statutory patterns. In
England as well in the United States, a good deal of legislation has been
enacted to provide for administrative procedures, composition and
procedures of tribunals, liability of state and its bureaucracy and for
strengthening the control on the exercise of administrative powers.
Ordinances
The ordinance-making power relates to the legislative powers of the Chief
Executive in Union and States. Article 123 of the Constitution of India which
deals with the legislative powers of the President empowers the President
to promulgate ordinances during the recess of Parliament, and Article 213
confers a similar power on the Governor to promulgate ordinances during
the recess of state legislature.
These provisions have secured considerable flexibility both to the Union
and to the State to enact laws to meet emergent situations as also to meet
circumstances created by laws being declared void by courts of law. Grave
public inconvenience would be caused if an Act, like the Bombay Sales Tax
Act, being declared void, no machinery existed whereby a valid law could be
promptly promulgated. However, it must be remembered that under the
Indian Constitution a validating Act must stand the test of Part III of the
Constitution. Further it must be noted that the Ordinance making power of
the Chief Executive is not unlimited or unbridled. It is provided under the
Constitution that the President or the Governor, as the case may be, can
issue ordinances on the advice of Council of Ministers. For the confirmation
of ordinance approval of the Houses is required. In this way, the power is
subjected to legislative control.
Delegated Legislation
Law-making is the primary function of the Legislature. Yet, in no country
does the legislature monopolise the whole of legislative power. A good deal
of legislation is made by the administration under the powers conferred by
the Legislature. This type of administrative legislation is called delegated or
subordinate legislation. The delegated legislation is subject to Judicial and
Parliamentary control. In this way, delegated legislation is an important
source of law.
Case Laws
The basis of Indian Administrative Law is judge-made law. This means that it
is subject to all the strengths and frailties of judicial law-making. In the
absence of special administrative courts, new norms of administrative law
have been evolved. The function of courts is two-fold, regulative and
formative. The rules laid for controlling the actions of administration by
various devices namely, reasoned decisions, quasi-judicial function, rules of
natural justice, for instance, rule of hearing and rule against bias have been
developed. The new principles laid down form guidelines for the future
course of action.
Reports of Committees and Law Commission
The phenomenal explosion of scientific, industrial and technological know-
how placed a counter-balancing responsibility on the functional
government to control the forces which science and technology had
unleashed. Modernisation and technological developments had created
crucial problems such as cultural conflicts, haphazard urbanisation, ruthless
exploitation of natural resources, environmental pollution, concentration of
economic power, staggering inflation, accelerated smuggling, etc. which a
modern government confronts with. These multidimensional problems with
a varied social, economic and political ramifications demanded growth of
administration and law regulating administration. In such a socio-economic
context the increasing powers of administration attracted the attention of
the jurists. A former Lord Chief Justice, Lord Hewart published a famous
book, The New Despotism, in 1929 which purported to expose the extent to
which the Civil Service and “bureaucracy” were then alleged to be the true
rulers of the country. Two particular factors were selected for attack on the
growth of administrative process:

(i)- The extent to which the executive was given freedom by Parliament to
make delegated legislation, and

(ii)- Complementary evil of freedom from control by the courts over the
exercise of executive discretions by reason of extremely wide powers given
by the legislature. All this led to the setting up of the “Committee on
Ministers’ Powers” which is commonly known as Donoughmore Committee.
The Committee submitted its report in 1932. In the opinion of the
Committee, three main areas required attention, namely,
 The inadequate provision made for publication and control of
subordinate legislation;
 The lacuna in the Law caused by the inability of a subject to sue the
Crown in tort; and
 The extent to which the control and supervision of administrative
decisions were passing out of the hands of the courts ad were being
entrusted to specialist tribunals and inquiry without effective control.
The Statutory Instruments Act, 1946 was passed concerning the
control of subordinate legislation. The Crown Proceedings Act, 1947
was passed assimilating the Crown’s tort liability to that of an
individual of full age and capacity.
Administrative quasi-legjislation
“Administrative quasi-legislation” is a term coined for administrative
directions or instructions. An increasing modern trend is the issuing of
directions or instructions by the functional government at work. In any
intensive form of government, the desirability and efficacy of administrative
directions issued by the superior administrative authorities to their
subordinates cannot be dispensed with. “Administrative Direction” is a
most efficacious technique for achieving some kind of uniformity in the
exercise of administrative discretion and determination of policy and its
uniform application. These instructions also serve the purpose of providing
desired flexibility to the administration devoid of technicalities involved in
rule-making process.