REASONS FOR GROWTH OF ADMINISTRATIVE LAW

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.
The following factors are responsible for the rapid growth and development of administrative
law:
1. 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.
2. Urbanization - Due to the Industrial Revolution in England and other countries 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.
3. To meet Emergency Situations – Enacting legislations, getting assent from the President is
all a lengthy process, whereas it is very easy and quick to frame schemes and rules for
meeting any emergency situations that arise in a locality. Due to the flexibility of making the
rules, obviously there is a constant growth of administrative law making in the country.
4. The judicial system proved inadequate to decide and settle all types of disputes. It was
slow, costly, inexpert, complex and formalistic. It was already overburdened, and it was not
possible to expect speedy disposal of even very important matters, e.g. disputes between
employers and employees, lockouts, strikes, etc. These burning problems could not be solved
merely by literally interpreting the provisions of any statute, but required consideration of
various other factors and it could not be done by the ordinary courts of law. Therefore,
industrial tribunals and labour courts were established, which possessed the techniques and
expertise to handle these complex problems.
5. The legislative process was also inadequate. It had no time and technique to deal with all
the details. It was impossible for it to lay down detailed rules and procedures, and even when
detailed provisions were made by the legislature, they were found to be defective and
inadequate, e.g., rate fixing. And, therefore, it was felt necessary to delegate some powers to
the administrative authorities.
6. 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.
7. 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.
8. 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."
9. Administrative authorities can take effective steps for enforcement of the aforesaid
preventive measures; e.g. suspension, revocation and cancellation of licences, destruction of
contaminated articles, etc. which are not generally available through regular courts of law.

Conclusion:
In recent times a new branch of Administrative Law is emerging, which is popularly called
Global Administrative Law. According to this the WTO is dictating guidelines on
subsidiaries, facilities and services to the people in different countries. The Banks have also
not been sparred from the interference of the WTO guidelines. Thus, it may be submitted, that
due to the emerging Global Administrative Law, in the near future there is every possibility
for the necessity to relook into the reasons for growth of Administrative Law.

SEPERATION OF POWER
Meaning
It is generally accepted that there are three main categories of governmental functions –
Legislative, Executive, and Judicial. Likewise, there are three main organs of the Government
in a State - Legislature, Executive and Judiciary. According to the theory of separation of
powers, these three powers and functions of the Government must, in a free democracy,
always be kept separate and be exercised by three separate organs of the Government. Thus,
the Legislature cannot exercise executive or judicial power; the Executive cannot exercise
legislative or judicial power and the Judiciary cannot exercise legislative or executive power
of the Government.

Importance
On the whole, the doctrine of Separation of Powers in the strict sense is undesirable and
impracticable and, therefore, it is not fully accepted in any country. Nevertheless, its value
lies in the emphasis on those checks and balances which are necessary to prevent an abuse of
enormous powers of the executive. The object of the doctrine is to have “a Government of
Law rather than of official will or whim.” Montesquieu's great point was that if the total
power of the government is divided among autonomous organs, one will act as a check upon
the other and in the check liberty can survive. Again, almost all the jurists accept one feature
of this doctrine that the judiciary must be independent of and separate from the remaining
two organs of the Government, viz., Legislature and Executive.

Separation of Powers in India

On a casual glance at the provisions of the Constitution of India, one may be inclined to say
that the doctrine of Separation of Powers is accepted in India. Under the Indian Constitution,
executive powers are with the President, legislative powers with the Parliament and judicial
powers with the Judiciary (Supreme Court, High Courts and subordinate courts). The
President holds his office for a fixed period. His functions and powers are enumerated in the
Constitution itself. Parliament is competent to make any law subject to provisions of the
Constitution and there is no other limitation on its legislative power. It can amend the law
prospectively or even retrospectively but it cannot declare a judgment delivered by a
competent court void or of no effect. The Parliament has also inherited all the powers,
privileges and immunities of the British House of Commons. Similarly, the Judiciary is
independent in its field and there can be non interference with its judicial functions either by
the Executive or by the Legislature. The Supreme Court and High Courts are given the power
of judicial review and they candeclare any law passed by Parliament or Legislature ultra vires
or unconstitutional. Taking into account these factors, some jurists are of the opinion that the
doctrine of
Separation of Powers has been accepted in the Constitution of India and is a part of the basic
structure of the Constitution. Separation of functions is not confined to the doctrine of
Separation of Powers. It is a part of essential structure of any developed legal system. In
every democratic society, the process of administration, legislation and adjudication are more
clearly distinct than in a totalitarian society.
But if we study the constitutional provisions carefully, it is clear that the doctrine of
Separation of Powers has not been accepted in India in its strict sense. There is no provision
in the Constitution itself regarding the division of functions of the Government and the
exercise thereof. Though, under Articles 53(1) and 154(1), the executive power of the Union
and of the States is vested in the President and the Governors respectively, there is no
corresponding provision vesting the legislative and judicial power in any particular organ.
The President has wide legislative powers. He can issue Ordinances, make laws for a State
after the State Legislature is dissolved, adopt the laws or make necessary modifications and
the exercise of this legislative power is immune from judicial review. He performs judicial
functions also. He decides disputes regarding the age of a judge of a High Court or the
Supreme Court for the purpose of retiring him and cases of disqualification of members of
any House of Parliament. Likewise, Parliament exercises legislative functions and is
competent to make any law not inconsistent with the provisions of the Constitution, but many
legislative functions are delegated to the executive. In certain matters, Parliament exercises
judicial functions also. Thus, it can decide the question of breach of its privilege and, if
proved, can punish the person concerned. In case of impeachment of the President, one
House acts as a prosecutor and the other House investigates the charges and decides whether
they were proved or not. The latter is a purely judicial function.
On the other hand, many powers which are strictly judicial have been excluded from the
purview of courts. Though judiciary exercises all judicial powers, at the same time, it
exercises certain executive or administrative functions also. The High Court has supervisory
powers over all subordinate courts and tribunals and also power to transfer cases. The High
Courts and the Supreme Court have legislative powers, they also frame rules regulating their
own procedure for the conduct and disposal of cases.
Thus, the doctrine of separation of powers is not accepted fully in the Constitution of India,
and one may agree with the observations of Mukherjea, J. in Ram Jawaya v. State of Punjab,
“The Indian Constitution has not indeed recognized the doctrine of separation of powers in its
absolute rigidity but the functions of the different parts or branches of the Government have
been sufficiently differentiated and consequently it can very well be said that our Constitution
does not contemplate assumption, by one organ or part of the State, of functions that
essentially belong to another.”