NATURE AND SCOPE OF ADMI NATURE ADMINIST NISTRA RATIVE TIVE LAW Synopsis I. II.
I NTRODUCTION NTRODUCTION
C. Procedure to be followed by these authorities
WHAT IS ADMINISTRATIVE LAW
in
exercising
their
powers III.
MEANING
AND
NATURE
OF
D. Remedies available to a person
ADMINISTRATIVE LAW A. Sir Ivor Jennings
VI.
A. In England
B. A.V. Dicey
B. In US
C. K.C Davis
C. In India
D. Jain and Jain IV.
NATURE OF ADMINISTRATIVE LAW
HISTORICAL DEVELOPMENT
VII.
R EASONS EASONS
FOR
GROWTH
OF
ADMINISTRATIVE LAW V.
SCOPE OF ADMINISTRATIVE LAW A. Change in role of State A. Composition and the powers of B. Failure of Judiciary
administrative authorities
C. Inadequate legislative action
a. Administrative
D. Speedy Justice
b. Quasi-judicial Quasi-judicial
E. Scope for experimentation experimentation
c. Quasi-Legislative Quasi-Legislative B. Methods of control of powers of
VIII.
CONCLUSION
administrative authorities
Introduction The basic and traditional functions of the state are those of maintenance of law and order and of collecting taxes from the public. However during the last century, there has been a tremendous increase in the functions of the State. This increase in powers and functions of State has made the relationship of the administrative authorities and the people have very complex. In order to regulate these complex relations, some law is necessary, which may bring about regulatory certainty and may check at the same time the misuse of powers vested in the administration. This law is known as ‘Administrative law’. Thus administrative law is nothing but the bye-product of the growing socio-economic functions of the State and the increased powers of the government. The development of Administrative law is an
inevitable necessity of the modern times. Therefore it is necessary to understand the nature and scope of administrative law.
What is Administrative Law The expression ‘Administrative Law’ may mean two different things, namely – (a) law relating to administration, and (b) law made by the administration. The latter would itself be of two kinds. Firstly, it may be rules, regulations, orders, schemes, bye-laws, etc., made by the administrative authorities on whom power to make such subordinate legislation is conferred by a statute. This may be called ‘rule-making’. Secondly, certain administrative authorities have power to decide questions of law and/ or fact affecting particular person or persons generally, i.e., adjudication. Most of such powers are exercised quasi-judicially. Such decisions apply a statute or administrative policy and instructions to specific cases. In doing so they create a body of administrative law.
Meaning and Nature of Administrative Law It is indeed difficult to arrive at a specific, precise and satisfactory definition of administrative law. Many jurists have made attempts to define it, but none of the definitions have completely demarcated the nature, scope and content of administrative law. Either the definitions are too broad and include much more than what is necessary or they are too narrow and fail to include all the essential ingredients. In the simplest sense, administrative law refers to that branch of the law which is concerned with the composition of powers, duties, rights and liabilities of the various organs of the Government. Some important definitions of Administrative Law are as follows –
SIR IVOR JENNINGS “Administrative law is the law relating to the administration. It de termines the organisation, powers and duties of the administrative authorities.”
This is the most widely- accepted definition. But according to Griffith and Street, there are two difficulties with this definition: 1) It does not distinguish administrative law from constitutional law. 2) It is a very wide definition. The law which determines the powers and functions of administrative authorities may also deal with the substantive aspects of such powers. For example, legislations relating to public health services, houses, town and country planning, etc. But these are not included within the scope and ambit of administrative law.
A.V. DICEY “Administrative law is that portion of a nation’s legal system which determines the legal
status and liabilities of all State officials, which defines the rights and liabilities of private individuals in their dealings with public officials and which specifies the procedure by which their rights and liabilities are enforced.”
According to this definition, administrative law consists of three aspects – 1. the legal status and liabilities of all State officials 2. the rights and liabilities of private individuals in their dealings with public officials, and 3. the procedure by which their rights and liabilities are enforced This definition has been criticized as being too narrow. It excludes the followings – a.
administrative authorities which are not State officials in strict sense e.g. public corporations
b. the procedures to be followed by the administrative authorities c.
the powers and functions of the administrative authorities
K.C DAVIS “Administrative law is the law concerning the powers and procedure of administrative
agencies, including especially the law governing judicial review of administrative action.”
According to Davis, an ‘administrative agency’ is a governmental authority, other than a court and a legislature which affects the rights of private parties either through administrative adjudication or rulemaking. In one respect, this definition is proper as it puts emphasis on procedure followed by administrative agencies in exercising their powers. However it does not include the substantive laws made by these agencies.
The difficulty in accepting this definition, however, is that it does not include within its scope Parliament control of delegated legislation and the discretionary functions of the administrative agencies.
JAIN AND JAIN “Administrative law deals with the structure, powers and functions of the organs of
administration, the limits of their powers, the methods and procedures followed by them in exercising their powers and functions, the methods by which they their powers are controlled including the legal remedies available to a person against them when his rights are inf ringed by their operations.”
Administrative law, according to this definition, deals with four aspects. Firstly, it deals with composition and the powers of administrative authorities. Secondly it fixes the limits of the powers of those authorities. Thirdly it prescribes the procedure to be followed by these authorities in exercising such powers. And fourthly, it controls these administrative authorities through judicial and other means.
Nature of Administrative Law Administrative Law is a branch of public law. Public law is that part of law which governs relationships between individuals and the government, and those relationships between individuals which are of direct concern to society. Administrative law deals with the relationship between individuals and the government. It is mainly concerned with the control of the powers of the administrative authorities. The main objective of the study of administrative law is to unravel the way in which these administrative authorities could be kept within their limits so that the discretionary powers may not be turned into arbitrary powers. Administrative law controls the administrative authorities so that they may not become despotic. Administrative law aims at maintaining a balance between administrative powers and the individual liberty. However a distinction must be drawn between administrative law and constitutional law. Administrative law is closely connected with constitutional law. It has even been called as a branch of the Constitutional Law. However at present administrative law has assumed the status of an independent subject. Administrative law is mainly concerned with the executive branch of the Government whereas the Constitutional Law gives equal importance to the Legislative, Executive as well as the Judiciary. In the words of HOLLAND, “the various organs of the Government are described by Constitutional Law as at rest, but administrative law describes them in motion.”
Scope of Administrative Law The literature on administrative law, presents the reader with considerable diversity of opinion. For some, it is the law relating to the control of powers of the government and for the others it is the law made by the administration. Yet others highlight the principal objective of administrative law as ensuring governmental accountability, and fostering participation by interested parties in the decision making process. SCHWARTZ divides administrative law into three parts: 1. The powers vested in administrative agencies 2. The requirements imposed by law upon the exercise of those powers
3. Remedies available against unlawful administrative actions. Further, the definition of administrative law given by JAIN AND JAIN presents an apt example of the scope of administrative law. Based on their definition, the scope and contents of administrative law can be divided into four aspects – 1. Composition and the powers of administrative authorities. 2. Methods of control of powers of administrative authorities 3. Procedure to be followed by these authorities in exercising their powers 4. Remedies available to a person through judicial and other means in case of violation of his rights by these administrative authorities
1. Composition and the powers of administrative authorities The powers and functions of administrative authorities can be divided into three divisions – a.
Administrative
b. Quasi-judicial c.
Quasi-legislative
a. Administrative
Administrative powers and functions are the residue of the governmental powers and functions that remain after legislative and judicial powers and functions are taken away. It can further be divided into discretionary and ministerial functions. Discretionary powers and functions are those wherein the administrative authorities enjoy the opportunity to make a choice out of available alternatives. Ministerial functions are those wherein the element of discretion is either absent or relatively small. b. Quasi-judicial
An act or function is treated as quasi-judicial act or function when it has some trappings of judicial function. While exercising quasi-judicial functions, the administrative authorities determine a matter affecting the rights of any person. Such quasi-judicial acts are subject to the principles of natural justice and the writ of certiorari. c. Quasi-Legislative
Although the Constitution of India empowers Legislature to make laws for the country, but keeping in mind various multifarious activities of a welfare State, it is not possible for the legislature to perform all the functions. Therefore the administrative authorities are conferred with quasi-legislative powers and functions. The development of the legislative power of the administrative authorities in the form of delegated legislation occupies a very important place in the study of administrative law.
2. Methods of control of powers of administrative authorities This is the most important aspect of the study of administrative law. The various methods of control include parliamentary control, judicial control (including control through writs), establishment of Inquiry Commissions and the institution of ombudsman.
3. Procedure to be followed by these authorities in exercising their powers Administrative law stipulates that the procedure to be followed by the administrative authorities in exercising its powers must be fair and reasonable. It emphasises on the concepts of natural justice and fair hearing.
4. Remedies available to a person Administrative law provides two kinds of remedies to a person in case his rights have been infringed by the administrative authorities. These are – Constitutional and Ordinary remedies. Constitutional remedies include the remedies by way of writs (under Articles 32 and 226 of the Constitution). Ordinary remedies or equitable remedies include such other remedies which may be available even against a private individual. E.g. injunction, damages etc. This has been made possible by way of Article 300 of the Constitution which states that the Government shall sue and may be sued, thus fixing contractual and tortuous liability of States.
Historical development In England In England, by and large, the existence of administrative law as a separate branch law was accepted until the advent of the 20th century. In 1929, the Committee on Minister’s Powers by LORD DONOUGHMORE was appointed by the British Government to examine the problems of delegated legislation and the judicial and quasi- judicial powers exercised by the officers appointed by the Ministers and to suggest effective steps and suitable safeguards to ensure the supremacy of the rule of law. In 1932, the Donoughmore Committee submitted its report and made certain recommendations regarding better publication and control of subordinate- legislation which were accepted by parliament with the passage of the Statutory Instruments Act, 1946. In the 20th century, social and economic policies of the government had significant impact on private rights, housing, employment, planning, education, health and several other matters. Neither the legislature could resolve those problems nor Crown’s Courts could provide effective remedi es to aggrieved parties. That had resulted in increase of delegated legislation as also tribunalisation
In US Administrative law was in existence in America in the 18th century when the first federal administrative law was embodied in the statute in 1789, but it grew rapidly with the passing of the Interstate Commerce Act, 1877. The Bench and the Bar also took interest in the study of administrative law. A special committee was appointed in 1933 which called for greater judicial control over administrative agencies. After the reports of Roscoe Pound Committee of 1938 and the Attorney General’s Committee in 1939, the Administrative Procedure Act, 1946 was passed which contained many provisions relating to the judicial control over administrative actions.
In India Administrative law was in existence in India even in ancient times. Under the Mauryas and Guptas several centuries before Christ, there was well organised and centralised administration in India. The rule of dharma was observed by the kings and administrators and nobody claimed any exemption from it. With the establishment of the East India Company and the beginning of the British Rule in India, the powers of the government had increased. Many Acts, statutes and legislations were passed by the British Government regulating public safety, health, morality, transport and labour relations. In the 20th century, social and economic policies of the government had significant impact on private rights of citizens, e.g. housing, employment, planning, education, health, pension, manufacture of goods, etc. Traditional legislative and judicial system could not effectively solve these problems. It resulted in increase in delegated legislation as well as tribunalisation. Administrative law thus became a live subject.
Reasons for Growth of Administrative Law 1. Change in role of State There is a radical change in the philosophy of the role played by the State. The negative policy of maintaining “law and order” and of “laissez faire” has radically changed. 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. Failure of Judiciary The judicial system was proved to be inadequate to decide ad settle all types of disputes. It was slow, costly, inept, 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. therefore, industrial tribunals and labour courts were established which possessed the techniques and expertise to handle these complex problems.
3. Inadequate legislative action The legislative process was also inadequate. It had no times and technique to deal with all the details. It was impossible for the legislature to lay down detailed rules and procedures, and even when detailed provisions were laid down by the legislature, they were found to be defective and inadequate. Therefore, it was necessary to delegate some powers to the administrative authorities.
4. Speedy Justice 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 courts to decide cases without formality and technicality. Administrative tribunals are not bound by rules of evidence and procedure, and they can take a practical view of the matter to decide complex problems.
5. Scope for experimentation There scope of experimentation in administrative process. Here, unlike in 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 defective, can be altered or modified within a short period. Thus, legislation is rigid in character, while, administrative process is flexible. 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. Thus in order to utilise 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.
Conclusion The administrative process has come to stay and it has to be accepted as a necessary evil in all progressive societies, particularly in a welfare state, where many schemes for the progress of society are prepared and administered by the government. The execution and implementation of this programme may adversely affect the rights of citizens. The actual problem is to reconcile social welfare with the rights of individual subjects. As has been rightly observed by LORD DENNING, Properly exercised, the new powers of the executive lead to the Welfare State, but abused they lead “ to Totalitarian State.”
