Administrative Law

By: Prof. Shubham Shandilya

shubham.shandilya@symlaw.ac.in
Session Objectives:

▪ To develop an understanding of:

▪ Global Administrative law: An
Introduction
▪ Doctrine of separation of power: genesis
and translation in Indian context
 Concept of Globalisation

▪ Signifies – “World is a huge market”.

▪ Economic sense- Free competition & not fair competition
▪ Includes LPG
▪ Delegation of public functions & responsibilities to private players.
▪ New role of the State: Facilitator, enabler & regulator
▪ Prof. Baxi-
▪ Globalisation signifies denationalisation, disinvestment & deregulation.
▪ Consequence: People, especially the deprived sections of the society,
become “victims of development rather than beneficiaries”.
Concept of GAL

▪ GAL can be described as a study of structures, principles,

practices and supporting social understanding that
promote or otherwise affect the accountability of GA
bodies, in order to ensure that they meet adequate
standard of transparency, participation, reasoned
decisions and legality, while exercising rule-making, rule-
application and rule decision functions.
▪ Conceptualisation of GAL presumes existence of global
or transnational administration which has domestic
ramifications.
Sources

▪ Public International Law

▪ PoNJ
Why Global Administrative Law?

▪ GAL must address problems of global law making, global

administration, global adjudication & global accountability.
▪ The purpose of GAL may be to develop principles and
norms necessary for reconciling claims of globalization with
the claims of human development over the whole spectrum
on equal basis.
▪ GAL must focus on principles, norms and mechanism for
enforcing responsibility and accountability in global
administrative space, necessary for infusing efficiency and
fairness in the operations of global economic players.
SEPARATION OF POWERS
 Understanding the
Separation of Powers
• “Power corrupts and absolute Power tends to
corrupt absolutely” ( said Lord Acton)

• Watch Video : https://youtu.be/e1cN5KuB5s0

• Watch Video: https://youtu.be/gExrynQC4IU
• "trias politica“
• Separation of powers, therefore, refers to the
division of government responsibilities into
distinct branches to limit any one branch from
exercising the core functions of another. The
intent is to prevent the concentration of power
and provide for checks and balances.

Jens
Martensson
 History of Separation of
Power
• It was accepted by Greeks and then it was
widespread use by the Roman Republic as
the Constitution of the Roman Republic.
• https://youtu.be/_mVAXRb0krQ
• Its root is traceable in Aristotle and Plato
when this doctrine became the segment of
their marvels.
• In 16th and 17th-century British politician
Locke and Justice Bodin, a French
philosopher also expressed their opinion
regarding this doctrine.
• Montesquieu was the first one who articulated
this principle scientifically, accurately and
systemically in his book “ Esprit des Lois”
(The Spirit Of Laws) which was published in
the year 1785. Jens
Martensson
Origin & Development

▪ Leaders of this Theory:

1. Plato: in his book ‘Republic’ first enunciated the
SoP.
2. Aristotle: In his book ‘Politics’ discussed the SoP.
3. Bodin: French Philosopher, explained this theory
in 16th Century.
4. Locke: British Philosopher, explained this theory
in 17th Century
Origin & Development

1. Montesquieu: French Philosopher, analysed the

SoP systematically & scientifically in his book
‘Esprit des Lois’(The Spirit of the Laws). The
government power should be vested in three
different organs i.e., the legislature, the executive
& the judiciary.
 Key Elements of
Separation of Powers
• (a)The same person should not
form a part of more than one of
the three organs of the
government.
• (b)One organ of the government
should not interfere with any
other organ of the government.
• (c)One organ of the government
should not exercise the functions
assigned to any other organ

Jens
Martensson
Consequences of No Separation of
Power

▪ If Legislature exercises the judicial functions as well.

▪ If Executive exercises the judicial functions as well.
Separation of Power in USA
▪ Watch:
▪ https://youtu.be/Nnqk-yGzYYg
▪
 Separation of Power in USA
▪ The system of administration in the United States has certain structural elements
that are fundamental:
(1) an elected legislative body that enacts statutes and delegates their
implementation to executive officials;
(2) an administrative body—a discrete, responsible decision making entity,
subordinate to and deriving authority from the legislature, that implements the
relevant law through adjudication, rulemaking, or other forms of administrative
decision;
(3) an independent court or a tribunal that reviews the agency decisions for
conformance with the terms of the statutory delegation and other applicable
legal requirements; and
(4) decisional transparency including public access to government records.
 Separation of Power in USA
to solve many complex socio-economic problems of the modern society new institutions have been
created & new procedures evolved by which the doctrine of “Separation” has been largely diluted.
- Introduction of system of delegated legislation.
- Conferment of power of adjudication on the executive.
- Growth of administrative tribunals.
- Many people criticized the growth of administrative process as doing violence to the concept of SoP.
- US Attorney General’s committee to review the entire administrative process.
- The Committee made its report in 1941. On the basis of the recommendations, the Parliament
enacted the Administrative Procedure Act 1946:
- The Act lays down:
- minimum Procedure to be followed by the administrators.
- introduced uniform & certain as well as flexible procedure.
 Whether
we have
Separation
of Power in
India?

Jens
Martensson
 Indian Perspective of
Separation of Powers
► The doctrine of separation of
power in a rigid sense means that
when there is a proper distinction
between three organs and their
functions and also there should be a
system of check and balance.
► The doctrine of separation of
power in a broad sense means that
Indian
Indian Constitution
Constitution
when there is no proper distinction
between three organs and their
functions.
Jens
Martensson
Indian Perspective of Separation of Powers
► In
Ram Jawaya v The State of Punjab AIR 1955 SC 549,, Justice
Mukherjee observed:

“In India, this doctrine has been not be accepted in its rigid sense but the
functions of all three organs have been differentiated and it can be said that our
constitution has not been a deliberate assumption that functions of one organ
belong to the another. It can be said through this that this practice is accepted in
India but not in a strict sense. There is no provision in Constitution which talks
about the separation of powers except Article 50 which talks about the
separation of the executive from the judiciary but this doctrine is in practice in
India. All three organs interfere with each other functions whenever necessary.”

Jens
Martensson
 SoP and India
▪ Dr. B.R. Ambedkar:
▪ “There is no dispute whatsoever that the executive should be separated from the
judiciary. With regard to the separation of the executive from the legislature, it is
true that such a separation does exist in the Constitution of United States; but many
Americans themselves were quite dissatisfied with the rigid separation embodied in
the American Constitution between the executive and legislature......... There is not
slightest doubt in my mind and in the minds of many students of Political Science,
that the work of Parliament is so complicated, so vast that unless and until the
members of the Legislature receive direct guidance and initiative from the
members of the Executive, sitting in Parliament, it would be very difficult for
Members of Parliament to carry on the work of the Legislature. I personally
therefore, do not think that there is any very great loss that is likely to occur if we do
not adopt the American method of separating the Executive from the Legislature.”
 SoP and India
▪ Art. 50: The State shall take steps to separate the judiciary from the
executive in the public services of the State.
▪ Kesavananda Bharti v. State of Kerala, AIR 1973 SC 1461
Hon’ble Chief Justice Sikri observed: "Separation of powers between
the legislature, the executive and the judiciary is a part of the basic
structure of the Constitution; this structure cannot be destroyed by any
form of amendment.”
 SoP and India
▪ Smt. Indira Nehru Gandhi v. Raj Narain, AIR 1975 SC 2299
Hon’ble Justice Chandrachud observed: the Indian Constitution does not expressly
vest the three kinds of power in three different organs of the State. But the principle of
separation of powers is not a magic formula for keeping the three organs of the State within
the strict confines of their functions.
▪ Asif Hameed v. State of Jammu and Kashmir AIR 1989 SC1899
“Although the doctrine of separation of powers has not been recognised under the
Constitution in its absolute rigidity but the Constitution makers have meticulously defined
the functions of various organs of the State. Legislature, executive and judiciary have to
function within their own spheres demarcated under the Constitution. No organ can usurp
the functions assigned to another. The Constitution trusts to the judgment of these organs
to function and exercise their discretion by strictly following the procedure prescribed
therein. The functioning of democracy depends upon the strength and independence of
each of its organs.”
 SoP and Admin Law

SoP is not strictly followed in India

More powers are given to executives.
Authorities are created u/the Parent Act & empower to make rules, regulation, notification
etc
Authorities are also empowered to adjudicate the matters.
Executives work in different capacities i.e. administrator/ legislator/ adjudicator.
Eg.
The Bombay Port Trust Act, 1897, The Opium Act, 1878, The Epidemic Diseases Act
1897, The Cinematograph Act 1952, The Reserve Bank Of India 1934, Insurance
Regulatory And Development Authority Act, 1999, The Telecom Regulatory Authority
of India Act 1997
SoP and Admin Law

Why Admin. Law?

- To protect the rights of individuals
- To control arbitrary exercise of power
- To observe PoNJ
- To limit jurisdiction
- To assure information to public