SUBJECT: TEACHING METHODS AND RESEARCH METHODOLOGY
PROJECT WORK ON THE TOPIC: GROWING IMPORTANCE OF ADMINISTRATIVE LAW AND THE ROLE OF JUDICIARY IN ADMINISTRATIVE ACTION
SUBMISSION TO: PROFESSOR P.V. RAO
SUBMITTED BY: PARUL PRASAD 1ST YEAR, LL.M ROLL NUMBER - 2012-28
AT: NALSAR UNIVERSITY OF LAW, HYDERABAD
DATE OF SUBMISSION: 01-10-2012
PREFACE
I am extremely grateful to my professor, Mr. P.V. RAO for his support for the project, from initial guidance in the early stages of conceptual inception, and through ongoing advice and encouragement to this day. He has been instrumental in conceptualization of this study. I would also like to extend my heartfelt regards and gratitude to the Library Staff and all those contributors whose names have not been mentioned here.
PREFACE
I am extremely grateful to my professor, Mr. P.V. RAO for his support for the project, from initial guidance in the early stages of conceptual inception, and through ongoing advice and encouragement to this day. He has been instrumental in conceptualization of this study. I would also like to extend my heartfelt regards and gratitude to the Library Staff and all those contributors whose names have not been mentioned here.
CONTENTS
HYPOTHESIS .................................................................... .......................................................................................................................................... ........................................................................ .. 4 WHAT IS ADMINISTRATIVE LAW? ........................................................................................................... ........................................................................................................... 5 NATURE AND SCOPE OF ADMINISTRATIVE LAW .................................................................................... 8 ADMINISTRATIVE LAW A ND RULE OF LAW ARE COMPLIMENTARY ..................................................... ..................................................... 11 HISTORICAL GROWTH AND DEVELOPMENT OF ADMINISTRATIVE LAW .............................................. 13 RELATION OF ADMINISTRATIVE LAW WITH CONSTITUTIONAL LAW ................................................... 17 SOURCES OF ADMINISTRATIVE LAW IN INDIA ...................................................................................... ...................................................................................... 22 IMPORTANCE OF ADMINISTRATIVE LAW IS GROWING-REASONS ....................................................... 24 CLASSIFICATION OF ADMINISTRATIVE FUNCTIONS .............................................................................. .............................................................................. 27 JUDICIAL CONTROL OF ADMINISTRATIVE ACTION ............................................................................... 31 ROLE OF WRITS IN THE ADMINISTRATIVE LAW .................................................................................... .................................................................................... 33 JUDICIAL REVIEW OF ADMINISTRATIVE ACTION .................................................................................. 39 SUGGESTED FORM OF ADMINISTRATIVE LAW FOR INDIA ................................................................... ................................................................... 42 CONCLUSION......................................................................................................................................... ......................................................................................................................................... 44 SELECT BIBLIOGRAPHY .......................................................................................................................... .......................................................................................................................... 47
HYPOTHESIS
Administrative law regulates agency rulemaking, adjudication, enforcement, and transparency. It specifies the legal status of agencies and administrators and provides for external review by legislatures and courts. Administrative law is the fundamental regulatory law of public administration. In democracies it will promote public participation in agency rulemaking, representation of stakeholders and other interested parties, representativeness, transparency, fundamental fairness, effective supervision of administrative operations, and other democratic values. In democracies, administrative law will emphasize the importance of representativeness, participation, responsiveness, transparency, and fairness in administration. In doing this project I have used doctrinal method of research. I have analyses the reasons for the growth and development of Administrative Law and role of judiciary over Administrative actions. It addresses the application of administrative law to rulemaking, adjudication, enforcement, transparency, and the external review of agency actions.
1 WHAT IS ADMINISTRATIVE LAW? Administrative Law refers to the set of laws and rules that govern the actions of the Executive agencies of the government. According to Sir Ivor Jennings, "administrative law is the law relating to the administrative authorities". This is the most widely accepted definition of Administrative Law. According to K. C. Davis, "Administrative law as the law concerns the powers and procedures of administrative agencies, including especially the law governing judicial review of administrative action". According to Jain and Jain, "Administrative law deals with the structure, powers and function of the organs of administration, the limits of their powers, the methods and procedures followed by them in exercising their powers and functions, the method by which their powers are controlled including the legal remedies available to a person against them when his rights are infringed by their operation". The Indian Institution of Law has defined Administrative Law in the following words; ―Administrative Law deals with the structure, powers and functions of organs of administration, the method and procedures followed by them in exercising their powers and functions, the method by which they are controlled and the remedies which are available to a person against them when his rights are infringed by their operation.‖ From early 19th century to today‘s era the functions of the adm inistration has increased manifold leading to a transformation in the meaning of the term administrative Law in accordance with the changes in the society. Administrative Law can be said to be the most remarkable development of the 20th Century. The development of administrative law goes hand-in-hand with the development of the society. Administrative law can more rightly be said to be the sociology of law and not the philosophy of law. The three main stages led to the expansion of the meaning of the term Administrative law: Laissez Faire: The theory of laissez-faire works on the following principles Minimum control of government Free enterprise Law and order not counted as subjects of state· Power said to be concentrated in the hands of the individual Dogma of Collectivism: The principle of collectivism evolved which said that the state and individuals shall work in proper synchronization. The state had proper control over the actions of the individuals and the state also stood up to take the responsibility for the individual‘s life .liberty and property. Social-Welfare State:
The Dogma of collectivism gave birth to the beginning of a social-welf are state. India is a socialistic republic as the Preamble of the Constitution articulates. The social welfare state thrives on the principle of providing justice of all kinds be it social, economic or political and all laws and actions of the government to be taken keeping in mind the interests of the citizens. The Constitution envisions at establishing an egalitarian society. From Laissez – faire to a social welfare state the meaning and definition of administrative law has developed tremendously. After turning into a social-welfare state the function of state has shifted from setting the parameters or for deciding the administrative functions to following the principles of natural justice and reasonableness. Administrative Law today is an all pervading feature existing in almost all parts of the society and its functions. In the field of law, the most significant and outstanding development of the 20th century is the rapid growth of administrative law. In this century, the philosophy as to the role and function of the state has undergone a radical change. There was increase in governmental functions. Administrative Law now includes: 1. The powers and functions of the administrative and quasi-administrative agencies. 2. The procedures these powers to be exercised, prescribed and reviewed. 3. The review by individuals and how the aggrieved persons whose powers have been abused and can seek a remedy. Today, the state is not merely a police state, exercising sovereign functions, (protecting the population from external aggression and from internal strife and for t his collecting taxes from the people) but as a progressive democratic welfare state, it seeks to ensure social security and social welfare for the common man, regulates the industrial relations exercises control over production manufacture and distribution of essential commodities; starts many enterprises, tries to achieve equality for all and equal pay for equal work. (Ref. Directive Principles of state policy enumerated in the constitution of India) Today, the state is required to look after the health, and morals of people, provide education to children and takes all the steps which social justice demands. All these developments have widened the scope and ambit of administrative law. Administrative Law is related to public administration. It is the law that controls the government power. It is concerned with the legal forms and constitutional status of public authority, with the powers and duty and the procedure followed in exercising them. The primary purpose of administrative law, therefore, is to restrict the powers of the Government within their legal limits or bounds so as to protect the citizens against any abuse of power by governmental machineries. Rule of law disapproves exercise of arbitrariness on the part of the government. The significant achievement in the sphere of rule of law is judicial review of administrative action to ascertain that the executive acts within the four corners of law. While deciding various cases, the Supreme Court of India has upheld the importance of rule of law in serving the needs of people without violating their rights. Administrative Law is an individual‘s interface with the State and its instrumentalities. Due to radical change in the philosophy regarding the role and function of the State (from laissez faire to welfare), the opportunities of interaction with administration have increased manifold and continue to increase further. The situation is such that administrative actions impinge on every aspect of an individual‘s life nowadays. Due to unprecedented rise in state intervention
in an individual‘s life, the possibility of accumulation of uncontrolled power and arbitrariness in its exercise too has increased. This in turn has started adversely affecting legal rights granted to an individual by the law. Therefore, administrative law has been systematically developed as an instrument to ensure that the powers entrusted or delegated to the administrative authorities are exercised strictly in accordance with the law. It deals with legal framework governing public administration and develops the principles to control administrative power to avoid arbitrariness. Recent growth of international administrative process has added new dimension to the study of administrative law.
2 NATURE AND SCOPE OF ADMINISTRATIVE LAW Administrative law deals with the powers of the administrative authorities. It deals with the manner in which the powers are exercised and the remedies which are available to the aggrieved persons, when those powers are abused by the authorities. As discussed above, the administrative process has come to stay and it has to be accepted as necessary evil in all progressive societies, particularly n welfare state, where many schemes for the progress of the society are prepared and administered by the government. The execution and implementation of this programme may adversely affect the rights of the citizens. The actual problem is to reconcile social welfare with the rights of the individual subjects. As has been rightly observed by Lord Denning; ―Properly exercised the new powers of the e xecutive lead to the Welfare State; but abused they lead to Totalitarian State‖. The main object 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 as a law is limited to concerning powers and procedures of administrative agencies. It is limited to the powers of adjudication or rule-making power of the authorities. Thus, it is limited to: Establishment, organization and powers of various administrative bodies Delegated legislation - the Rule-making power of the authorities Judicial functions of administrative agencies such as tribunals Remedies available such as Writs, Injunction etc. Procedural guarantees such as the application of principles of Natural Justice Government liability in tort Public corporations
Firstly, Administrative Law is a branch of Public Law which deals with the contradistinction with private law which deals with the relationships of individuals inter se. Secondly, It deals with the organisation and powers of administrative and quasi administrative agencies and but also quasi administrative agencies like Public Sector undertakings Thirdly, Administrative Law includes the study of the existing principles and also of the development of certain new principles which administrative and quasi-administrative agencies follow while exercising their powers. One of the main thrusts of the study of Administrative Law is on the procedure by which official action is reached If the means (procedure) are not trustworthy, the end cannot be just. Fourthly, Administrative law includes within its study the control mechanism by which the administrative agencies are kept within the bounds and made in the service of the individuals. This control mechanism is technically called the ‗review process‘ or ‗appeal process‘. An administrative action may be controlled by: Courts exercising writ jurisdiction through the writs of Hebeas Corpus, mandamus, certiorari, Prohibition and Quo Warranto Courts exercising ordinary judicial powers through suits, injunctions and declaratory actions Higher administrative authorities
The institutions of ombudsman and other investigative agencies such as Vigilance Commissions also exercise control on administrative action. Role of public enquiries in this regard, is also significant. Right to know, right to reply and discretion to disobey also have inherent potentialities of providing effective , though indirect, in providing check on administrative behaviour
Administrative Law is a new branch of law that deals with the powers of the Administrative authorities, the manner in which powers are exercised and the remedies which are available to the aggrieved persons, when those powers are abused by administrative authorities. The Administrative process has come to stay and it has to be accepted as a necessary evil in all progressive societies. Particularly in welfare state, where many schemes for the progress of the society are prepared and administered by the government. The execution and implementation of these programmes may adversely affect the rights of the citizens. The actual problem is to reconcile social welfare with rights of the individual subjects. The main object 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. There are several branches of the science of law. The Administrative Law is a recent branch of the science of law. In the political science there are few Administrative organs. Certain functions have been allotted to these organs in the Administrative Machinery. The Administrative law deals with the structure, functions and powers of the Administrative organs. It also lays down the methods and procedures which are to be followed by them during the course of remedies which are available to the persons whose rights and other privileges are damaged by their operations. From the few lines above explaining the meaning of the Administrative law, we can notice the exact scope of this new branch of Law. The scope of Administrative law can be narrated as under:The methods and procedures of these Administrative organs are also studied by this new branch of law. It covers the nature of structure, powers and functions of all these administrative organs. It also makes available all the relevant remedies to the persons whose rights are infringed by the operations of these organs during the course of Administration. Why and How the Administrative Organs are to be controlled is also viewed by the Administrative law. In this way along with the development in the Political Science and along with the idea of federal Administration, the separate branch of Administrative law has been developed. It is to be clearly noted that this branch of Law is exclusively restricted to the Administrative organs only. The delegated legislations are supposed to be the backbone of the Administrative law.
Thus Administrative law can be said to be science of power of Administrative authorities. In view of above discussion we can derive at the following conclusions so far as nature and scope of administrative law is concerned:
The administrative law has growing importance and interest and the administrative law is the most outstanding phenomena in the welfare state of today. Knowledge of administrative law is as important for the officials responsible for carrying on administration as for the students of law.
Administrative law is not codified like the Indian Penal code or the law of Contracts. It is based on the constitution. No doubt the Court of Law oversees and ensure that the law of the land is enforced. However, the ―very factor of a rapid development and complexity which gave rise to regulation made specific and complete treatment by legislation impossible and, instead, made necessary the choice of the body of officers who could keep abreast of the novelties and intricacies which the problems presented.‖ 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 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 challen ges 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. 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.
Thus, the Administrative Law deals with the structure, power and functions of the various organs of administration; the methods and procedures followed by them in expressing their powers and functions; the methods by which they are controlled and the remedies which are available to a person against them when his rights are infringed by their operation.
3 ADMINISTRATIVE LAW AND RULE OF LAW ARE COMPLIMENTARY The basis of Administrative law is the doctrine of ―The Rule of Law‖. The Expression ―Rule of Law‖ plays an important role in the administrative law. It provides protection to the people against the arbitrary action of the administrative authorities. The expression ‗rule of law‘ has been derived from the French phrase ‗la Principle de legality‘ i.e. a government based on the principles of law. In simple words, the term ‗rule of law, indicates the state of affairs in a country where, in main, the law rules. Law may be taken to mean mainly a rule or principle which governs the external actions of the human beings and which is recognized and applied by the State in the administration of justice. The concept of rule of law, in modern age, does not oppose the practice of conferring discretionary powers upon the government but on the other hand emphasizing on spelling out the manner of their exercise. It also ensures that every man is bound by the ordinary laws of the land whether he be private citizens or a public officer; that private rights are safeguarded by the ordinary laws of the land. Thus the rule of law signifies that nobody is deprived of his rights and liberties by an administrative action; that the administrative authorities perform their functions according to law and not arbitrarily; that the law of the land are not unconstitutional and oppressive; that the supremacy of courts is upheld and judicial control of administrative action is fully secured. BASIC PRINCIPLES OF RULE OF LAW
Law is Supreme, above everything and everyone. Nobody is the above law. All things should be done according to law and not according to whim No person should be made to suffer except for a distinct breach of law. Absence of arbitrary power being hot and sole of rule of law Equality before law and equal protection of law Discretionary should be exercised within reasonable limits set by law Adequate safeguard against executive abuse of powers Independent and impartial Judiciary Fair and Justice procedure Speedy Trial
RULE OF LAW AND INDIAN CONSTITUTION
The doctrine of Rule of Law has been adopted in Indian Constitution. The ideals of the Constitution, justice, liberty & equality are enshrined in the preamble. The Constitution of India has been made the supreme law of the country and other laws are required to be in conformity with the Constitution. Any law which is found in violation of any provision of the Constitution is declared invalid.
Part III of the Constitution of India guarantees the Fundamental Rights. Article 13(l) of the Constitution makes it clear that all laws in force in the territory of India immediately before the commencement of the Constitution, in so far as they are inconsistent with the provision of Part III dealing with the Fundamental Rights, shall, to the extent of such inconsistency, be void. Article 13(2) provides that the State should not make any law which takes away or abridges the fundamental rights and any law made in contravention of this clause shall, to the extent of the contravention, be void. The Constitution guarantees equality before law and equal protection of laws. Article 21 guarantees right to life and personal liberty. It provides that no person shall be deprived of his life or personal liberty except according to the procedure established by law. Article 19 (1) (a) guarantees the third principle of rule of law embodies right of freedom of speech & expression. Article 19 guarantees six Fundamental Freedoms to the citizens of India -- freedom of speech and expression, freedom of assembly, freedom to form associations or unions, freedom to li ve in any part of the territory of India and freedom of profession, occupation, trade or business. The right to these freedoms is not absolute, but subject to the reasonable restrictions which may be imposed by the State. Article 20(1) provides that no person shall he convicted of any offence except for violation of a law in force at the time of the commission of the act charged as an offence not be subject to a penalty greater than that which might have been inflicted tinder the law in for cc at the time of the commission of the offence. According to Article 20(2), no person shall be prosecuted and punished for the same offence more than once. Article 20(3) makes it clear that no person accused of the offence shall be compelled to be witness against himself. In India, Constitution is supreme and the three organs of the Government viz. Legislature, Executive and judiciary are subordinate to it. The Constitution provided for encroachment of one organ i.e.: Judiciary upon another the Legislature if its action is mala fide, as the citizen i.e. an individual can challenge under Article 32 of the Constitution. In India, the meaning of rule of law has been much expanded. It is regarded as a part of the basic structure of the Constitution and, therefore, it cannot be abrogated or destroyed even by Parliament. It is also regarded as a part of natural justice. In Kesavanda Bharti vs. State of Kerala Honourable Supreme Court enunciated the rule of law as one of the most important aspects of the doctrine of basic structure. In another case Menaka Gandhi vs. Union of India again Honourable Supreme Court declared that Article 14 strikes against arbitrariness which depicted the importance of the principle of rule of law. In Indira Gandhi Nehru vs. Raj Narain13 in which Article 329-A was in question, this provided certain immunities to the election of office of Prime Minister from judicial review. The Supreme Court declared Article 329-A as invalid since it abridges the basic structure of the Constitution.
3 HISTORICAL GROWTH AND DEVELOPMENT OF ADMINISTRATIVE LAW 1) ENGLAND
In England, by and large, the existence of administrative law as a separate branch of law was not accepted until the advent of the 20th century. In 1885, Dicey in his famous thesis on rule of law observed that there was no administrative law in England. He had pronounced to Robson: ―In England, we know nothing of administrative law and we wish to know nothing about it‖. But while saying this, he ignored the existence of administrative discretion and administrative justice which were current even in his days. In a large number of statutes discretionary powers were conferred on the executive authorities and administrative tribunals which could not be called into question by the ordinary courts of law. But he disregarded them altogether. It appears that his contemporary Maitland was quite conscious about the true position and he observed in 1887: ―If you take up modern volume of the reports of the Queen‘s Bench Division, you will find that about half of the cases reported have to do with rules of administrative law‖. In 1914, however, Dicey changed his views. In the last edition of his famous book, ‗Law and the Constitution‘, published in 1915, he admitted that during the last 30 years, due to increase of duties and authority of English officials, some elements of droit had entered in the law of England. But even then, he did not concede that there was administrative law in England. However, after two decisions of the House of Lords in Board of Education V. Rice and Local Government Board V. Arlidge, in his article ―The Development of Administrative Law in England‖ he observed: ―Legislation had conferred a considerable amount of quasi-judicial authority on the administration which was a considerable step towards the introduction of administrative law in England‖. A observed by Griffith and Street, the study of administrative law had to suffer a lot because of Dicey‘s conservative approach. Of course, in due course, scholars made conscious efforts to know the real position. But even to them, the study of administrative law was restricted only to two aspects, viz. delegated legislation and administrative adjudication. In 1929, the Committee on Minister‘s Powers headed by Lord Donoughmore was appointed by the British Government to exaine 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 with regard to better publication and control of subordinate legislation, which were accepted by the Parliament by the passage of the Statutory Instruments Act, 1946. In 1947, the Crown Proceedings Act was passed by the British Parliament which made the government liable to pay damages in cases of tortious and contractual liability of the Crown. Thus, the abandonment of the famous doctrine, ―The King can do no wrong‖ considerably expanded the scope of administrative law in England. In 1958, the Tribunals and Inquiries
Act was passed for the purpose of better control and supervision of administrative decisions, and the decisions of the administrative authorities and tribunals were made subject to appeal and supervisory jurisdiction of the regular courts of law.
2) UNITED STATES OF AMERICA
Administrative Law was in existence in America in the 18th century, when the first federal administrative law was embodied in statute in 1789, but it grew rapidly with the passing of the Inter-state Commerce Act, 1877. In 1893, Frank Goodnow published a book on ‗Comparative Administrative Law‘ and in 1905, another book on the ‗Principles of Administrative law of the United States‘ was published. In 1911, Ernst Freund‘s ‗Case Book on Administrative Law‘ was published. The Bench and the Bar also took interest in the study of administrative law. In his address to the American bar Association in 1946 President Elihu Root warned the country by saying: ―There is one special field of law. Development of which has manifestly become inevitable. We are entering upon the creation of a body of administrative law, quite different in its machinery, its remedies and its necessary safeguards from the old methods of regulation by specific statutes enforced by the courts………. If we are to continue a Government of limited powers, these agencies of regulation must themselves be regulated….‖. Unfortunately, this advice of a wise counsel was ignored by the leaders of the Bar. The powers of the administrative bodies continued to increase day by day and they became a ―Fourth Branch‖ of the Government. After the New Deal, it was felt necessary to take effective steps in this field. A special committee was appointed in 1933 which called for greater judicial control over administrative agencies. After the report of Roscoe Pound Committee of 1938 and Attorney General‘s Committee of 1939, the Administrative Procedure At, 1946 was passed which contained many provisions relating to the judicial control over administrative actions.
3) INDIA
Administrative law was existent in India even in ancient times. Under the Mauryas and Guptas, several centuries before Christ, there was well organized centralized administration in India. The rule of Dharma was observed by kings and administrators and nobody claimed any exemption from it. The basic principles of natural justice and fair play were followed by the kings and officers as the administration could be run only on those principles accepted by Dharma, which was even a wider word than ‗Rule of Law‘ or ‗Due Process of Law‘. Yet, there was no administrative law in existence in the sense in which we study it today. With the establishment of East India Company and the advent of the British Rule in India, the powers of Government had increased. Many Acts, statutes and legislations were passed by the British Government, regulating public safety, health, morality, transport and labour relations. The practice of granting administrative licence began with the Stage Carriage Act, 1861. The first public corporation was established under the Bombay Port Trust Act, 1879. Delegated legislations was accepted by the Northern India Canal and Drainage Act, 1873 and the Opium Act, 1878. Proper and effective steps were taken to regulate the trade and traffic in explosives by the Indian Explosives Act, 1884. In many statutes, provisions were made with regard to holding of permits and licences and for the settlement of disputes by the administrative authorities and tribunals.
During the Second World War, the executive powers tremendously increased. Defence of India Act, 1939 and the Rules made there under conferred ample powers on the executive to interfere with life, liberty and property of an individual with little or no judicial control over them. In addition to this, the government issued many orders and ordinances covering several matters by way of administrative instructions. Since Independence, the activities and the functions of the government have further increased. Under the Industrial Disputes Act, 1947, the Minimum Wages Act, 1948, the Factories Act, 1948 and the Employees‘ State Insurance Act, 1948, important social security measures have been taken for those employed in industries. The philosophy of a welfare state has been specifically embodied in the Constitution of India. In the Constitution itself the provisions are made t o secure to all citizens social, economic and political justice, equality of status and opportunity. The ownership and control of material resources of the society should be so distributed as best to subserve the common good. The operation of the economic system should not result in concentration of wealth and means of production. For the implementation of all these objects the state is given power to impose reasonable restrictions even on the Fundamental Rights guaranteed by the constitution. In fact, to secure these objects, several steps have been taken by Parliament by passing many Acts; e.g. the Industrial (Development and Regulation) Act, 1951, the Requisitioning and Acquisition of Immovable Property Act, 1952, the Essential Commodities Act, 1955, the Companies Act, 1956, the maternity benefit Act, 1961, the Payment of Bonus Act, 1965, the Banking Companies (Acquisition and Transfer of Undertakings) Act, 1969, the Equal Remuneration Act, 1976, the Urban Land (Ceiling and Regulation) Act, 1976, the Beedi Workers‘ Welfare Fund Act, 1976 etc. Even while interpreting all these Acts and the provisions of the Constitution, the judiciary started taking into consideration the objects and ideals of social welfare. Thus, in Vellukunel v. Reserve Bank of India, the Supreme Court held that under the Banking Companies Act, 1949, the Reserve Bank was the sole judge to decide whether the affairs of a banking company were conducted in a manner prejudicial to the depositors‘ interest and the Court had no option but to pass an order of winding up as prayed for by the Reserve Bank. Again, in State of Andhra Pradesh v. C. V. Rao, dealing with a departmental inquiry, the Supreme Court held that the jurisdiction to issue a writ of certiorari under Article 226 is supervisory in nature. It is not an appellate court and if there is some evidence on record on which the tribunal had passed the order, the said findings cannot be challenged on the ground that the evidence for the same is insufficient or inadequate. The adequacy or sufficiency of evidence is within the exclusive jurisdiction of the tribunal. Similar view was taken in K. L. Shinde v. State of Mysore. In M. P. Srivastava v. Suresh Singh, the Supreme Court observed that in matters relating to questions regarding adequacy or sufficiency of training, the expert opinion of the Public Service Commission would be generally accepted by Court. Very recently, in State of Gujarat v. M. I. Haider Bux, the Supreme Court held that under the provisions of the land Acquisition Act, 1894, ordinarily, government is the best authority to decide whether a particular purpose is a public purpose and whether the land can be acquired for that purpose or not. Thus, on the one hand, the activities and powers of the government and administrative authorities have increased and on the other hand, there is greater need for the enforcement of the rule of law and judicial review over these powers, so that the citizens should be free to
enjoy the liberty guaranteed to them by the Constitution. For that purpose, provisions are made in statutes giving right to appeal, revision, etc. and at the same time extraordinary remedies are available to them under article 32, 226 and 227 of the Constitution of India. The principle of judicial review is also accepted in our Constitution and the orders passed by administrative authorities can be quashed and set aside if they are mala fide or ultra vires the Act or the provisions of the Constitution. And if rules, regulations or orders passed by these authorities are not within their powers, they can be declared ultra vires, unconstitutional, illegal or void.
4 RELATION OF ADMINISTRATIVE LAW WITH CONSTITUTIONAL LAW Administrative law was earlier considered as a part of Constitutional Law. The vast proliferation of administrative powers developed the Administrative Law as an independent subject of study requiring a lot of skill and hard work to understand the basic tenets of governance. There are, however, very wide areas which are of common interest to both Administrative Law as well as the Constitutional Law; both are concerned with the functions of Government and both are considered the part of public law. Regarding the distinction between two systems it has been characterized and correctly as ―Constitutional law is concerned with the organization and functions of Government at rest, whilst Administrative Law is concerned with that organization and those function in motion‖. Administrative Law is concerned with day to day affairs of the Government while constitutional law concerned with its structure. Therefore, drawing conclusion from this one could say that the Constitutional Law represents the static aspects; while the Administrative Law is concerned with dynamic aspect of government, i.e. the Constitutional Law is concerned with the theoretical set up. More significantly, it is said that Administrative Law is the law relating to Administration and defies almost any precise definition or limitation. Thus the Administrative Law covers a wide range of complex activities. Administrative law essentially deals with location of power and the limitations thereupon. Since both of these aspects are governed by the constitution, we shall survey the provisions of the constitution, which act as sources of limitations upon the power of the state. This brief outline of the Indian constitution will serve the purpose of providing a proper perspective for the study of administrative law. The Constitution deals with the organization and structure not only of the central Government but also of the states. In a federal constitution, Centre-State relationship is a matter of crucial importance. While other federal constitutions have only skeletal provisions on this matter the Indian Constitution has detailed norms. The Constitution has reduced to writing many unwritten conventions of the British Constitution as for example, the principle of collective responsibility of the Ministers, parliamentary procedure etc. There exist various communities and groups in India. To remove mutual distrust among them, it was felt necessary to include in the Constitution detailed provisions on Fundamental Rights, safeguards to minorities, Scheduled tribes scheduled castes and backward classes. To promote the social welfare concept on which the state of India is to be based. The constitution includes Directive Principles of State Policy. The Constitution contains not only the fundamental principles of governance but also many administrative details, such as the provisions regarding citizenship, official languages, government services, electoral machinery etc. In other constitutions, these are usually left to be regulated by the ordinary law of the land. The framers of the Indian Constitution however felt that unless these provisions were contained in the Constitution, an infant democracy might find itself in difficulties, and the smooth and efficient working of the Constitution and the democratic process in the country might
be jeopardized. The form of administration has a close relation with the form of the Constitution and the former must be appropriate to the latter. It is quite possible to pervert the constitutional mechanism, without changing its form, by merely changing the form of the administration and making it inconsistent with, and opposed to, the spirit of the constitution. Since India was emerging as an independent country after a long spell of foreign rule, the country lacked democratic values. The constitutionmakers therefore thought it prudent not to take unnecessary risks, and to incorporate in the constitution itself the from of administration as well, instead of leaving it to the legislature, so that the whole mechanism may become viable. The preamble to the Constitution declares India to be a Sovereign Democratic Republic. The term ‗Sovereign‘ denotes that India is subject to no external authority. The term ‗democratic‘ signifies that India has a parliamentary from of government, which means a government responsible to an elected legislature. The preamble to the Constitution enunciates the great objectives and the socio-economic goals for the achievement of which the Indian Constitution has been established. These are: to secure to all citizens of India social, economic and political justice; to secure to all Indian citizens liberty of thought, expression, belief, faith and worship; to secure to them equality of status and opportunity, and to promote among them fraternity so as to secure the dignity of the Individual and the unity of the nation. The Indian Constitution has been conceived and drafted in the mid-twentieth century-an era when the concept of social welfare state is predominant. It is thus pervaded with the modern outlook regarding the objectives and functions of the state. It embodies a distinct philosophy of government, and, explicitly declares that India will be organized as a social welfare state, i.e., a state that renders social services to the people and promotes their general welfare. In the formulations and decelerations of the social objectives contained in the preamble, one can clearly discern the impact of the modern political philosophy, which regards the state as an organ to secure the good and welfare of the people. This concept of a welfare state is further strengthened by the Directive Principles of State Policy, which set out the economic, social and political goals of the Indian constitutional system. These directives confer certain non-justice able rights on the people, and place the governments under an obligation to achieve and maximize social welfare and basic social values like education, employment, health etc. In consonance with the modern beliefs of man, the Indian Constitution sets up a machinery to achieve the goal of economic democracy along with political democracy, for the latter would be meaningless without the former in a poor country like India. India is a country of religions. There exist multifarious religious groups in the country but, in spite of this, the Constitution stands for a secular state of India.. The essential basis of the Indian Constitution is that all citizens are equal, and that the religion of a citizen is entirely irrelevant in the matter of his fundamental rights. The Constitution answers equal freedom for all religions and provide that the religion of the citizen has nothing to do in socio-economic maters. The Indian Constitution has a chapter on Fundamental Rights and thus guarantees to the people certain basic rights and freedoms, such as, inter alia, equal protection of laws, freedom of speech and expression freedom of worship and religion. Freedom of assembly and association, freedom to move freely and to reside and settle an where in India, freedom to follow any occupation, trade or business, freedom of person, freedom against double jeopardy and against export facto laws. Untouchables, the age-old scourge afflicting the
Hindu society, have been formally abolished. The people can claim their Fundamental Rights against the state subject to some restrictions, which the state can impose in the interests of social control. These restrictions on Fundamental Rights are expressly mentioned in the Constitution itself and, therefore, these rights can be qualified or a bridged only to the extent laid down. These rights, in substance, constitute inhibitions on the legislative and executive organs of the state. No law or executive action infringing a Fundamental Right can be regarded as valid. In this way, the Constitution demarcates an area of individual freedom and liberty wherein government cannot interfere. The judiciary ensures an effective and speedy enforcement of these rights. Since the inauguration of the Constitution, many significant legal battles have been fought in the area of Fundamental Rights and, thus, a mass of interesting case law has come into being in this area. The Indian society lacks homogeneity, as there exist differences of religion, language, culture, etc. There are sections of people who are comparatively weaker than otherseconomically, socially and culturally and their lot can be ameliorated only when the state makes a special effort to that end. Mutual suspicion and distrust exist between various religious and linguistic groups. To promote a sense of security among the minorities, to ameliorate the conditions of the depressed and backward classes, to make them useful members of society, to weld the diverse elements into one national and political stream, the Constitution contains a liberal scheme of safeguards to minorities, backward classes and scheduled castes. Provisions have thus been made, inter alia, to reserve seats in the State Legislatures and Lok Sabha and to make reservations services, for some of these groups, to promote the welfare of the depressed and backward classes and to protect the languages and culture of the minorities. India has adopted adult suffrage as a basis of elections to the Lok Sabha and the State Legislative Assemblies. Every citizen, male or female, who has reached the age of 18 years or over, has a right to vote without any discrimination. It was indeed a very bold step on the part of the constitution makers to adopt adult suffrage in a country of teeming millions of illiterate people, but they did so for some very sound reasons. If democracy is to be broad based and the system of government is to have the ultimate s anction of the people as a whole, in a country like India where large masses of people are poor an illiterate, the introduction of any property or educational qualification for exercis ing the franchise would have amounted to a negation of democratic principles. Any such qualification would have disenfranchised a large number of depressed people. Further, it cannot be assumed that a person with a bare elementary education is in a better position to exercise the franchise are and choose his representatives accordingly. A notable feature of the Constitution is that it accords a dignified and crucial position to the judiciary. Well-ordered and well-regulated judicial machinery had been introduced in the country with the Supreme Court at the apex. The jurisdiction of the Supreme Court is very broadly worded. It is a general court of appeal from the High Court, is the ultimate arbiter in all-constitutional matters and enjoys an advisory jurisdiction. It can hear appears from any court or tribunal in the country and can issue writ for enforcing the Fundamental Rights. There is thus a good deal of truth in the assertion that the highest court in any other federation. There is a High Court in each State. The High Courts have wide jurisdiction and have been constituted into important instruments of justice. The most signification aspect of their jurisdiction is the power to issue writs.
The judiciary in India has been assigned role to play. It has to dispense justice not only between one person and another, but also between the state and the citizens. It interprets the constitution and acts as its protector and guardian by keeping all authorities legislative, executive, administrative, judicial and quasi-judicial- within bounds. The judiciary is entitled to scrutinize any governmental action in order to assess whether or to it conforms to the constitution and the valid laws made there under. The judiciary has powers to protect people‘s Fundamental Rights from any unreasonable encroachment by any organ of the state. The judiciary supervises the administrative process in the country, and acts as the balance wheel of federalism by settling disputes between the centre and the states or among the state inter se. India‘s Constitution is of the federal type. It established a dual polity, a two tier governmental system with the Central Government at one level and the state Governments at the other. The Constitution marks off the sphere of action of each level of government by devising an elaborate scheme of distribution of legislative, administrative, and financial powers between the Centre and the States. A government is entitled to act within its assigned field and cannot go out of it, or encroach on the field assigned to the other government. Thus the Constitution of India is having significant effect on laws including administrative law. It is under this fundamental laws are made and executed, all governmental authorities and the validity of their functioning adjudged. No legislature can make a law and no governmental agency can act, contrary to the constitution no act, executive, legislative, judicial or quasi-judicial, of any administrative agency can stand if contrary to the constitution. The constitution thus conditions the whole government process in the country. The judiciary is obligated to see any governmental organ does not violate the provisions of the constitution. This function of the judiciary entitles it to be called as guardian of the constitution.
Today in India, the Administrative process has grown so much that it will not be out of place to say that today we are not governed but administered. It may be pointed out that the constitutional law deals with fundamentals while administrative with details. The learned author, Sh. I.P. Messey, has rightly pointed out, whatever may be the arguments and counter arguments, the fact remains that the administrative law is recognized as separate, independent branch of legal discipline,. Though, at times, the disciplines of constitutional law and administrative law may over lap. Further clarifying the point he said the correct position seems to be that if one draws two circles of administrative law and constitutional law at a certain place they may over lap and this area may termed as watershed in administrative law. In India, in the Watershed one can include the whole control mechanism provided in the constitution for the control of the administrative authorities that is article 32, 226,136,300 and 311. Constitutional Law recognizes administrative law indirectly by envisaging few administrative bodies like Inter State Council (Art. 263), Union Public Service Commission (Art. 315) and Election Commission (Art. 329) etc. CONSTITUTIONAL BACKGROUND OF ADMINISTRATIVE LAW
Administrative authorities are subjected to the control of statutes and judicial decisions. In India, the administrative and executive acts can be challenged in the following manner:
Subordinate delegated legislation are expressly brought within the fold of Article 13 of the Constitution by defining ‗law‘ as including ‗order‘ ‗bye -law‘, rule, regulation notification — having the force of law. Thus, the statutory instrument can be challenged as involved not only on the ground of its being ultra vires, the statute which confers power to make it but also on the additional ground that it contravenes any of the fundamental rights contained in Part III of the Constitution of India under Articles 32 and 226. Even purely administrative action will be void if it contravenes any of those fundamental rights which constitute limitations against any State acti on. An administrative act whether statutory or non-statutory will be void if it violates any of the mandatory and justifiable provisions of the Constitution. Remedy of violation of such Constitutional rights is distinct from the violation of fundamental rights and is simple one. Through Public Interest Litigation, the High Courts and the Supreme Court can review any administrative action in broader public interest.
5 SOURCES OF ADMINISTRATIVE LAW IN INDIA Administrative law is mainly concerned with powers. It is necessary to examine the sources of powers before considering in details how power is controlled. The customary divisions of the sources of legal power are "Common law" and "Statute", so it is with administrative authority. So far as the Central Government is concerned its common law powers falls under the Royal Prerogative which however has no relevance to the activities either of local Government authorities or modern statutory corporations. Which also include ministerial departments, such as, Housing and Local Government Education. Since the latter are exclusively the creation of parliament it follows their powers are derived solely from the same source. In the realm of the Administrative law, the conflict between the parliament and courts would arise whenever the former seeks to abridge any of the fundamental rights of the citizens which are justifiable. There are four principal sources of administrative law in India:Constitution of India Acts and Statute Law Ordinances, Administrative directions, notifications and Circulars Judicial decisions
The Constitution of India: It deals with formulation of the executive, the powers of the executive during peace and emergency times. Administrative law is concerned solely with the Administrative acts or either the administrator or of quasi judicial bodies. Now the methods by which such acts are interfered with are by the use of the prerogative or common law writs, especially by the writs of certiorari, mandamus and prohibitions. These writs are issued only by the High Courts in England and by the Supreme Court and High Courts in India under Articles 32 and 226 of the constitution of India. This jurisdiction excludes ordinary courts i.e. very civil or criminal proceedings in the land, because those proceedings carry with them the safeguards provided by statute of the appeal, revision and review. Hence, it is clear that these writs are not available against the judicial proceedings of the courts. The constitution of India also provides under Article 299 and 300, the contractual and tortious liability of the government servants. Acts and Statute Law: It is an exclusive source of Administrative power. The term covers both Act of parliament and delegated legislation. Act of parliament comprise public general Acts and private or local Acts. Delegated of Parliament comprise public general Acts legislation, includes statutory rules and orders. Acts of parliament fall into two categories which may be conventionally termed constituent Acts and enabling Act, but some Acts deal with both constitution and power. In short, we can say statues are one of the important sources of Administrative law. Ordinances, Administrative directions, notifications and Circulars: Ordinances are issued by the President (at Union / Federal level) and Governor (at State level) and are valid
for a particular period of time. These ordinances give additional powers to administrators in order to meet urgent needs. Administrative directions, notifications and circulars provide additional powers by a higher authority to a lower authority. In some cases, they control the powers. Judicial decisions or Judge-made Law: It has been responsible for laying down several new principles related to administrative actions. They increased the accountability of administrative actions and acted as an anchor between the notifications, circulars etc. to be linked and complied directly or indirectly with the constitutional or statutory provisions.
6 IMPORTANCE OF ADMINISTRATIVE LAW IS GROWING-REASONS There are several reasons and factors which are responsible for the rapid growth of Administrative law in 20th century.
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 somewhat 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 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. 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. 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. The legislature 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. 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. 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. 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. And lastly, we can say that they act as an impartial arbitrator, and hence there is a need of separate Administrative Law.
Union of 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 coordinate Administrative Law for Administrative Organs. The Judicial System Proved Inadequate: To decide and settle all the disputes. It was slow, costly inexpert, complex and formalistic. It was already over-burdened, 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. 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. 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. 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. 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. 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.
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." 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. Final glance: 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 spared 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.
7 CLASSIFICATION OF ADMINISTRATIVE FUNCTIONS There are three organs of the Government – the Legislature, the Executive and the Judiciary. The function of the legislature is to enact the law; the executive is to administer the law and the judiciary is to interpret the law and to declare what the law is. But as observed by the Supreme Court in Jayantilal Amratlal v. F. N. Rana it cannot be assumed that the legislative functions are exclusively performed by the legislature, executive functions by the executive and judicial functions by judiciary. Today, the executive performs variegated functions, viz. to investigate, to prosecute, to prepare and to adopt schemes, to issue and cancel licences, (administrative); to make rules, regulations and bye-laws, to fix prices, (legislative); to adjudicate on disputes, to impose fine and penalty, etc. (judicial); rule-making (quasi-legislative) and adjudication (quasi-judicial) have become the chief weapons in the administrative armoury. Generally administrative functions are separated into: Administrative function. Legislative function. Quasi-legislative function. Judicial function. Quasi-judicial function.
ADMINISTRATIVE FUNCTION
In A.K. Kraipak v. Union of India, the Court was of the view that in order to determine whether the action of the administrative authority is quasi-judicial or administrative, one has to see the nature of power conferred, to whom power is given, the framework within which power is conferred and the consequences. Therefore, administrative action is the residuary action which is neither legislative nor judicial. It is concerned with the treatment of a particular situation and is devoid of generality. It has no procedural obligations of collecting evidence and weighing argument. It is based on subjective satisfaction where decision is based on policy and expediency. It does not decide a right though it may affect a right. However, it does not mean that the principles of natural justice can be ignored completely when the authority is exercising ―administrative powers‖. Unless the statute provides otherwise, a minimum of the principles of natural justi ce must always be observed depending on the fact situation of each case. No exhaustive list of such actions may be drawn; however, a few ma y be noted for the sake of clarity: 1. Making a reference to a tribunal for adjudication under the Industrial Disputes Act. 2. Functions of a selection committee. 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. In Ram Jawaya v. State of Punjab, the Supreme Court observed, ―It may not be possible to frame an exhaustive definition of what executive function means and implies. Ordinarily the executive power connotes the residue of governmental functions that remain after legislative and judicial functions are taken away." Thus, administrative functions are those functions which are neither legislative nor judicial in character. Generally, the following ingredients are present in administrative functions: An administrative order is generally based on governmental policy or expediency. In administrative decisions, there is no legal obligation to adopt a judicial approach to the questions to be decided, and the decisions are usually subjective rather than objective. An administrative authority is not bound by the rules of evidence and procedure unless the relevant statute specifically imposes such an obligation. An administrative authority can take a decision in exercise of a statutory power or even in the absence of a statutory provision, provided such decision or act does not contravene provision of any law. Administrative functions may be delegated and sub-delegated unless there is a specific bar or prohibition in the statute. While taking a decision, an administrative authority may not only consider the evidence adduced by the parties to the dispute, but may also use it s discretion. An administrative authority is not always bound by the principles of natural justice unless the statute casts such duty on the authority, either expressly or by necessary implication or it is required to act judicially or fairly. An administrative order may be held to be invalid on the ground of unreasonableness. An administrative action will not become a quasi-judicial action merely because it has to be performed after forming an opinion as to the existence of any objective fact. The prerogative writs of certiorari and prohibition are not always available against administrative actions.
LEGISLATIVE FUNCTION
Legislative functions of the executive consist of making rules, regulations, bye-laws, etc. A further distillate of administrative action is ministerial action. Ministerial action is that action of the administrative agency, which is taken as matter of duty imposed upon it by the law devoid of any discretion or judgment. Therefore, a ministerial action involves the performance of a definitive duty in respect of which there is no choice. Collection of revenue may be one such ministerial action. 1. Notes and administrative instruction issued in the absence of any 2. If administrative instructions are not referable to any statutory authority they cannot have the effect of taking away rights vested in t he person governed by the Act. It is, no doubt, true that any attempt to draw a distinct line between legislative and administrative functions is difficult in theory and impossible in practice. Though difficult, it is necessary that the line must be drawn as different legal rights and consequences ensue. As Schwartz said, ―If a particular function is termed ‗legislative‘ or ‗rule-making‘ rather than
‗judicial‘ or ‗adjudication‘, it may have substantial effects upon the parties concerned. If the function is treated as legislative in nature, there is no right to a notice and hearing unless a statute expressly r equires them.‖ In the leading case of Bates v. Lord Hailsham, Megarry, J. observed that ―the rules of natural justice do not run in the sphere of legislation, primary or delegated.‖ Wade also said, ―There is no right to be heard before the making of legisl ation, whether primary or delegated, unless it is provided by statute.‖ Fixation of price, declaration of a place to be a market yard, imposition tax, establishment of Municipal Corporation under the statutory provision, extension of limits of a town area committee, etc. are held to be legislative functions.
QUASI-LEGISLATIVE FUNCTION
Legislature is the law-making organ of any state. In some written constitutions, like the American and Australian Constitutions, the law making power is expressly vested in the legislature. However, in the Indian Constitution though this power is not so expressly vested in the legislature, yet the combined effect of Articles 107 to III and 196 to 201 is that the law making power can be exercised for the Union by Parliament and for the States by the respective State legislatures. It is the intention of the Constitution-makers that those bodies alone must exercise this law-making power in which this power is vested. But in the twentieth Century today these legislative bodies cannot give that quality and quantity of laws, which are required for the efficient functioning of a modern intensive form of government. Therefore, the delegation of law-making power to the administration is a compulsive necessity. When any administrative authority exercises the law-making power delegated to it by the legislature, it is known as the rule-making power delegated to it by the legislature, it is known as the rule-making action of the administration or quasi-legislative action and commonly known as delegated legislation. Rule-making action of the administration partakes all the characteristics, which a normal legislative action possesses. Such characteristics may be generality, prospectively and a behaviour that bases action on policy consideration and gives a right or a disability. These characteristics are not without exception. In some cases, administrative rule-making action may be particularised, ret roactive and based on evidence.
JUDICIAL FUNCTION
According to the Committee on Ministers‘ P owers, a pure judicial function presupposes an existing dispute between two or more parties and it involves four requisites: The presentation (not necessarily oral) of their case by the parties to the dispute; If the dispute is a question of fact, the ascertainment of fact by means of evidence adduced by the parties to the dispute and often with the assistance of argument by or on behalf of the parties, on evidence; If the dispute between them is a question of law, the submission of legal argument by the parties; and A decision which disposes of the whole matter by finding upon the facts in dispute and ‗an application of the law of the land to the facts found, including, where required, a ruling upon any disputed question of law.‘
Thus, these elements are present, the decision is a judicial decision even though it might have been made by any authority other than a court, e.g. by Minister, Board, Executive Authority, Administrative Officer or Administrative Tribunal.
QUASI-JUDICIAL FUNCTION
The word ‗quasi‘ means ‗not exactly.‘ Generally, an authority is described as ‗quasi - judicial‘ when it has some of the attributes or trappings of judicial functions, but not all. Today the bulk of the decisions which affect a private individual come not from courts but from administrative agencies exercising ad judicatory powers. The reason seems to be that since administrative decision-making is also a by-product of the intensive form of government; the traditional judicial system cannot give to the people that quantity of justice, which is required in a welfare State. Administrative decision-making may be defined, as a power to perform acts administrative in character, but requiring incidentally some characteristics of judicial traditions. On the basis of this definition, the following functions of the administration have been held to be quasi-judicial functions: Disciplinary proceedings against students. Disciplinary proceedings against an employee for misconduct. Confiscation of goods under the sea Customs Act, 1878. Cancellation, suspension, revocation or refusal to renew license or permit by licensing authority. Determination of citizenship. Determination of statutory disputes. Power to continue the detention or seizure of goods beyond a particular period. Refusal to grant ‗no objection certificate‘ Forfeiture of pensions and gratuity. Authority granting or refusing permission for retrenchment. Grant of permit by Regional Transport Authority.
All quasi-judicial decisions essentially have two characteristics in common. 1. Presentation of their case by the parties; and 2. The decision on questions of fact by means of evidence adduced by the parties. However, it is not always true. Firstly, in many cases, the first characteristic is absent and the authority may decide a matter not between two or more contesting parties but between itself and another party, e.g. an authority effecting compulsory acquisition of land. Here the authority itself is one of the parties and yet it decides the matter. It does not represent its case to any court or authority. Secondly, there may be cases in which no evidence is required to be taken and yet the authority has to determine the questions of fact after hearing the parties, e.g. ratemaking or price-fixing. Thirdly, after ascertainment of facts, unlike a regular court, an authority is not bound to apply the law to the facts so ascertained, and the decision can be arrived at according to considerations of public policy or administrative discretion, which factors are unknown to an ordinary court of law.
8 JUDICIAL CONTROL OF ADMINISTRATIVE ACTION The exercise of power by the Administrative authorities by itself is not pure evil but gives much room for misuse. Therefore, remedy lies in tightening the procedure and not in abolishing the power itself. JUDICIAL CONTROL OF ADMINISTRATIVE ACTION:
Though courts in India have developed a few effective parameters for the proper exercise of administrative power, the conspectus of judicial behaviour still remains halting and residual. Judicial control mechanism of administrative action is exercised at two stages:
Control at the stage of delegation of power - The court exercises control over delegation of discretionary powers to the administration by adjudicating upon the constitutionality of the law under which such powers are delegated with reference to the fundamental rights. Therefore, if the law confers vague and wide discretionary power on any administrative authority, it may be declared ultra vires Article 14, Article 19 and other provisions of the Constitution. Control at the stage of the exercise of pawer - In India there is no Administrative Procedure Act providing for judicial review on the exercise of administrative discretion. The power of judicial review arises from the courts. Courts in India have developed various formulations to control the exercise of administrative discretion. These formulations may be conveniently grouped into two broad categories: o
o
That the authority is deemed not to have exercised its power at all – “non application of mind” - Under this categorization, courts exercise judicial control over administrative discretion if the authority has either abdicated its power or has put fetters on its exercise or the jurisdictional facts are either non-existent or have been wrongly determined. The authority in which discretion is vested can be compelled to exercise it, but not to exercise it in a particular manner. When a discretionary power is conferred on an authority, the said authority must exercise that power after applying its mind to the fact and circumstances of the case in hand. Thus where the authority abdicates its power e.g. abdication of functions, acting under dictation, conditional precedents, acts mechanically & without due care, imposes fetters on the exercise of discretion, there is a failure to exercise discretion. That the authority has not exercised its power properly – “abuse of discretion” - When discretionary power is conferred on an administrative authority, it must be exercised according to law. When the mode of exercising a valid power is improper or unreasonable there is an abuse of the power. Improper exercise of discretion includes everything which English courts include in ‗unreasonable‘ exercise of discretion and American courts include in ‗arbitrary and capricious‘ exercise of discretion. Improper exercise of discretion includes such things as ‗taking irrelevant considerations into
account‘, ‗acting for improper purpose‘, ‗asking wrong questions‘, ‗acting in bad faith‘, ‗neglecting to take into consideration relevant factors‘, ‗acting unreasonably‘ etc. The Supreme Court observed in K.L. Trading Co. Ltd. v. State of Meghalaya, that to attract judicial review of administration action, the applicant must show that the administrative action suffers from vice of arbitrariness, unreasonableness and unfairness. Merely because the Court may feel that the administrative action is not justified on merit, can be no ground for interference. The Court can only interfere when the process of making such decision is wrong or suffers from the vice of arbitrariness, unfairness and unreasonableness.
9 ROLE OF WRITS IN THE ADMINISTRATIVE LAW Administrative law has greatly demarcated the checks, balances and permissible area of an exercise of power, authority and jurisdiction over administrative actions enforced by the any State, Governmental agencies and instrumentalities defined under Article 12 of the Constitution of India. And the judiciary is dynamically carving the principles and exceptions, while making the judicial review of administrative actions. There are provisions in the Constitution, which empowers the Supreme Court and High Courts to issue writs under Article 32 and 226 respectively in the nature of Habeas Corpus, Mandamus, Prohibition, Quo Warranto and Certiorari. The fundamental rights which are inalienable sacrosanct in nature and character which were conceived in national and public interest could be illusory if there is no constitutional machinery provided for its enforcement. Unless such constitutional remedies for its enforcement are not provided the rights guaranteed by part III of the Constitution cannot be ever implemented by the citizens. Article 32 contained in Part III is itself a fundamental right given to the person under the Constitution. Similarly Article 226 of the Constitution is conferred on the High Courts to exercise its prerogative writs which can be issued against any person or body of person including the government. The distinction between the two remedies is very negligible. The remedy under Article 32 is confined to enforcement of fundamental rights whereas Article 226 is available not only against the enforcement of fundamental rights but also for any other purpose. Thus, the constitution provides the discretionary remedies on the High Court and the Supreme Court. In the absence of the provisions of such remedies, no one can enforce its rights given. Thus, wherever there is a right there must be a remedy for it. TYPES OF WRITS
The writ of Certiorari can be described as ―one of the most valuable and efficient remedies. Such powers are exercised when the authorities have failed to exercise the jurisdiction though vested in it or failed to exercise the jurisdiction though vested on him or to correct the apparent error on the face of record or there is violation of the principle of natural justice. An instance showing the certiorari powers was exercised by the Honourable Supreme court in A.K.Kraipak v. Union of India, where the selection was challenged on the ground of bias. The Supreme Court delineated the distinction between quasi judicial and administrative authority. The Supreme Court exercising the powers issued the writ of Certiorari for quashing the action. The writ of Prohibition is issued by the court exercising the power and authorities from continuing the proceedings as basically such authority has no power or jurisdiction to decide the case. Prohibition is an extra ordinary prerogative writ of a preventive nature. The underlying principle is that ‗prevention is better than cure.
The writ of Mandamus is a judicial remedy which is in the form of an order from a superior court to any Government agency, court or public authority to do or forbear from doing any specific act which that body is obliged to do under the law. The writ of mandamus is issued whenever the public authorities fail to perform the statutory duties confirmed on them. Such writ is issued to perform the duties as provided by the state under the statute or forbear or restrain from doing any specific act. The writ of mandamus can be issued if the public authority vested with power abuses the power or acts mala fide to it. The writ of Quo Warranto means ―by what warrant or authority‖. Quo Warranto writ is issued against the person of public who occupies the public seat without any qualification for the appointment. It is issued to restrain the authority or candidate from discharging the functions of public office. In University of Mysore v. Govinda Rao, the Supreme Court observed that the procedure of quo Warrato confers the jurisdiction and authority on the judiciary to control executive action in making the appointments to public offices against the relevant statutory provisions; it also protects a citizen being deprived of public office to which he may have a right. The writ of Habeas Corpus is a process for securing liberty to the party for illegal and unjustifiable detention. It objects for providing a prompt and effective remedy against illegal restraints. The writ of Habeas Corpus can be filled by any person on behalf of person detained or by the detained person himself. It is a judicial order issued by Supreme Court or High Court through which a person confined may secure his release. The writ of Habeas Corpus can be filed by any person on behalf of the other person. In Icchu Devi v. Union of India, the Supreme Court held that in a case of writ of Habeas corpus there are no strict observances of the rules of burden of proof. Even a post card by any pro bono publico is satisfactory to galvanize the court into examining the legality of detention. In A.D.M. Jabalpur v. Shivakant Shukla , it was observed that ―the writ of Habeas Corpus is a process for securing the liberty of the subject by affording an effective means of immediate relief from unlawful or unjustifiable detention whether in prison or private custody. By it the High Court and the judges of that court at the instance of a subject aggrieved command the production of that subject and inquire into the cause of his imprisonment. If there is no legal justification for that detention, then the party is ordered to be released.‖
ROLE OF WRITS IN ADMINISTRATIVE ACTION
Now as far as the role of the writs is concerned, let us go by illustration over the cases on discretion. Conferment of discretionary powers has been accepted as necessary phenomena of modern administrative and constitutional machinery. Law making agency legislates the law on any subject to serve the public interest and while making law, it has become indispensable to provide for discretionary powers that are subject to judicial review. The rider is that the Donnie of the discretionary power has to exercise the discretion in good faith and for the purpose for which it is granted and subject to limitations prescribed under the Act. The Courts have retained their jurisdiction to test the Statute on the ground of reasonableness. Mostly, the courts review on two counts; firstly whether the statute is substantively valid piece of legislation and, secondly whether the statute provides procedural safeguards. If these two tests are not found, the law is declared ultra vires and void of Article 14 of the Constitution.
Beside this, Courts control the discretionary powers of the executive government being exercised after the statutes have come to exist. Once they come into existence, it becomes the duty of the Executive Government to regulate the powers within limitations prescribed to achieve the object of the Statute. The discretionary powers entrusted to the different executives of the Government play substantial role in administrative decision making and immediately the settled principles of administrative law trap the exercise of powers. If these discretionary powers are not properly exercised, or there is abuse and misuse of powers by the executives or they take into account irrelevant consideration for that they are not entitled to take or simply misdirect them in applying the proper provision of law, the discretionary exercise of powers is void. Judicial review is excluded when it is found that executives maintain the standard of reasonableness in their decisions. Errors are often crept in either because they would maintain pure administrative spirit as opposed to judicial flavour or that they influence their decisions by some irrelevant considerations or that sometimes, the authorities may themselves misdirect in law or that they may not apply their mind to the facts and circumstances of the cases. Besides, this aspect, they may act in derogation of fundamental principles of natural justice by not conforming to the standard or reasons and justice or those they do not just truly appreciate the existence or non existence of circumstances that may entitle them to exercise the discretion. ―The Executive have to reach their decisions by taking into account relevant considerations. They should not refuse to consider relevant matter nor should they take into account considerations that are wholly irrelevant or extraneous. They should not misdirect themselves on a point of law. Only such a decision will be lawful. The courts have power to see that the Executive acts lawfully. They cannot avoid scrutiny by courts by failing to give reasons. If they give reasons and they are not good reasons, the court can direct them to reconsider the matter in the light of relevant matters though the propriety adequacy or satisfactory character of these reasons may not be open to judicial scrutiny. Even if the Executive considers it inexpedient to exercise their powers they should state their reasons and there must be material to show that they have considered all the relevant facts.‖
Application of the Writ of Certiorari: The writ of Certiorari is basically issued against the statutory bodies exercising judicial or quasi judicial powers. Such writ is issued against the authorities namely the government and the courts or other statutory bodies who have power to determine and decide the lis between the parties. In deciding such issues if the decision making order is passed without any authority or has passed the order in exercise of such authority or has committed an error of law and facts the high court is empowered to correct such error of the lower court or government authorities. Certiorari may apply when the administrative or executive authority fails to observe their duty to act fairly with respect to the administrative functions. The writ of Certiorari may also be issued against a subordinate tribunal even if the decision impugned is pronounced. A leading case of Ryots of Garabandho v. Zamindar of Parlakimedi, was the first decision on the writ of Certiorari Application of the Writ of Mandamus: The writ of mandamus is ordered when the statutory authorities who entrusted with the duties fail to discharge its obligatory duty. It may be applied when the government authorities vested with absolute powers fail to perform their administrative and statutory duties. In Ratlam Municipal Council v. Vardichand , on account of the public nuisance created in the area by the corporation in not maintaining the drainage system and the dirty water stinking had clogged around which obviously created nuisance at the hands of municipality for not
discharging the duties under the act. As a result the residents of Ratlam municipality moved the Sub-divisional magistrate under section 133 of Code of Criminal Procedure, 1973 for abatement of nuisance and the court issued the directions that, ―Judicial discretion when facts for its exercise are present has a mandatory import. Therefore when the Sub-Divisional Magistrate, Ratlam, has before him information and evidence which disclose the presence of public nuisance, considers it lawful to remove such obstruction. This is a public duty implicit in the public power to be exercised on behalf of the public and is pursuant to public proceeding.‖
Application of the Writ of Prohibition: The writ of Prohibition is issued essentially against the government or its authorities when they are not conferred with the power or jurisdiction to decide the dispute. The court by virtue of this power restrains the authority to exercise such powers which are not given to the authority. Application of the Writ of Quo Warranto: The high Court would exercise the power of Quo Warranto against the public authority or government who acts contrary to the provisions of the statute and restrains the authority or public servant from usurping the public office on account of lack of qualification. It is a means of asserting sovereign right. In Sonu Sampat v. Jalgaon Borough Municipality , ―If the appointment of an officer is illegal, every day that he acts in that office, a fresh cause of action arises and there can be therefore no question of delay in presenting a petition for quo warranto in which his very, right to act in such a responsible post has been questioned.‖ Application of the Writ of Habeas Corpus: The writ of Habeas Corpus is a writ issued in order to protect the liberty and freedom which is conceived to be very vital. It is issued against the wrongful detention or confinement through the police authority. By virtue of this writ the police authorities or other such statutory authorities are empowered to bring the custody of the person who has been wrongfully detained by the court of law. In the case of State of Bihar v. Kameshwar Singh it was stated that, the writ of Habeas Corpus is in the nature of an order for calling upon the person who has detained or arrested another person to produce the latter before the court, in order to let court know on what ground he has been confined and to set him free if there is no legal justification for the imprisonment. One of the telling ways in which the violation of that right can reasonably be prevented and due compliance with the mandate of article 21 secured, is to mulct its violators in the payment of monetary compensation.
The prerogative powers of writ jurisdiction conferred by the constitution for judicial review of administrative action is undoubtedly discretionary and yet unbounded in its limits. The discretion however should be exercised on sound legal principles. In this respect it is important to emphasise that the absence of arbitrary power is the first essential of the rule of law upon which the whole constitution system is based. In a system governed by rule of law when discretion is conferred upon the executive authorities it must be based on clearly defied limits. Thus the rule of law from this point of view means that the discretion or the decision must be based on some principles and rules. In general the decision should be predictable and citizens should know where he is. If a decision is taken not on the basis of any principle or rules then such decision is arbitrary and is taken not in accordance with the rule of law.
The Constitution is the law of the laws and nobody is supreme. Even the judges of Supreme Court are not above law and they are bound by the decisions which are the law of the land declared by them under the writ petitions. Thus, the constitutional remedies provided under the constitution operate as a check and keeps the administration of government within the bounds of law.
10 JUDICIAL REVIEW OF ADMINISTRATIVE ACTION Judicial review is a great weapon in the hands of judges. It comprises the power of a court to hold unconstitutional and unenforceable any law or order based upon such law or any other action by a public authority which is inconsistent or in conflict with the basic law of the land. Judicial review has been declared by the courts as a part of the basic structure of the constitutional ethos in India and also that in as much as all administrative bodies are required to act in consonance with the legal regime and principles of natural justice in dealing in pursuance of their actions. Broadly speaking, judicial review in India deals with three aspects: Judicial review of legislative action; Judicial review of judicial decision; and Judicial review of administrative action.
The underlying object of judicial review is to ensure that the authority does not abuse its power and the individual receives just and fair treatment and not to ensure that the authority reaches a conclusion which is correct in the eye of law. Judicial review of administrative action is perhaps the most important development in the field of public law in the second half of this century. In India, the doctrine of judicial review is the basic feature of Indian Constitution. Judicial review is the most potent weapon in the hands of the judiciary for the maintenance of the rule of law. Judicial review is the touchstone of the Constitution. The Supreme Court and High Courts are the ultimate interpreters of the Constitution. It is, therefore, their duty to find out the ex tent and limits of the power of coordinate branches, viz. executive and legislature and to see that they do not transgress their limits. This is indeed a delicate task assigned to the judiciary by the Constitution. Judicial review is thus the touchstone and essence of the rule of law. The power of judicial review is an integral part of Indian Constitutional system and without it, there will be no government laws and the rule of law would become a teasing illusion and a promise of unreality. The judicial review, therefore, is a basic and essential feature of the Constitution and it cannot be abrogated without affecting the basic structure of the Constitution. In recent times, judicial review of administrative action has become extensive and expansive. The traditional limitations have vanished and the sphere of judicial scrutiny is being expanded. In a recent decision, called upon the examine the validity of a Circular issued by the Director General of Foreign Trade (DGFT) in respect of import of marbles in India, Justice S. Muralidhar is the Delhi High Court culled out the following tests which are required to be observed to test the validity of administrative action by the judiciary. Two essential legal principles govern the exercise of the power of judicial review by a High Court in matters such as these.
The court will not sit in appeal over the ultimate decision of the administrative body. It is really concerned about the procedure adopted in arriving at such decision. Was it a fair, reasonable and just procedure? Were relevant materials considered and irrelevant materials kept out? As far as the final decision is concerned, is it vitiated by malafides or is it so arbitrary that no reasonable person would, in the circumstances, have arrived at it. In policy matters, the Court will be slow to interfere. As the case law reveals, where the question is of reasonableness of restrictions imposed through an import policy, the degree of deference shown by the judicial wing to the executive is greater.
In Dy. Assistant Iron & Steel Controller v. L. Manichand the Supreme Court explained: (SCC p. 337) ―…… In granting licences for imports, the authority concerned has to keep in view various factors which may have impact on imports of other items of relatively greater priority in the larger interest of the over-all economy of the country which has to be the supreme consideration; and an applicant has no absolute vested right to an import licence in terms of the policy in force at the time of his application because from the very nature of things at the time of granting the licence the authority concerned may often be in a better position to have a clearer over-all picture of the various factors having an important impact on the final decision on the allotment of import quota to the various applicants.‖ It was observed in Liberty Oil Mills v. Union of India (SCC p.477) ―….. The import policy of any country, particularly a developing country, has necessarily to be tuned to its general economic policy founded upon its constitutional goals, the requirements of its internal and international trade, its agricultural and industrial development plans, its monetary and financial strategies and last but not the least the international political and diplomatic overtones depending on 'friendship, neutrality or hostility with other countries' (Glass Chotans Importers and Users' Association v. Union of India [1962]1SCR862 . There must also be a considerable number of other factors which go into the making of an import policy. Expertise in public and political, national and international economy is necessary before one may engage in the making or in the criticism of an import policy. Obviously courts do not possess the expertise and are consequently incompetent to pass judgment on the appropriateness or the adequacy of a particular, import policy. But we may venture to assert with some degree of accuracy that our present import policy is export oriented. Incentives by way of import licences are given to promote exports…..‖ In M.P. Oil Extraction v. State of M.P. it was held (SCC, p.611) ―…….The executive authority of the State must be held to be within its competence to frame policy for the administration of the State. Unless the policy framed is absolutely capricious and, not being informed by any reason whatsoever, can be clearly held to be arbitrary and founded on mere ipsi dixit of the executive functionaries thereby offending Article 14 of the Constitution or such policy offends other constitutional provisions or comes in conflict with any statutory provision, the Court cannot and should not out step its limit and tinker with the policy decision of the executive functionary of the State. This Court, in no uncertain term, has sounded a note of caution by indicating that policy decision is in the domain of the executive authority of the State and the Court should not embark on the unchartered ocean of public policy and should not question the efficacy or otherwise of such policy so long the same does not offend any provision of the statute or the Constitution of India. The supremacy of each of three organs of the State i.e. legislature, executive and judiciary in their respective field of operation needs to be emphasised. The power of judicial review of the executive and legislative action must be kept within the bounds of constitutional scheme so that there may
not be any occasion to entertain misgivings about the role of judiciary in out stepping its limit by unwarranted judicial activism being very often talked of in these days. The democratic set up to which the polity is so deeply committed cannot function properly unless each of the three organs appreciates the need for mutual respect and supremacy in their re spective field.‖ In Ugar Sugar Work s Limited v. Delhi Administration the Supreme Court observed thus (SCC p. 643) ―……. It is well settled that the Courts, in exercise of their power of judicial review, do not ordinarily interfere with the policy decisions of the executive unless the policy can be faulted on grounds of mala fide, unreasonableness, arbitrariness or unfairness etc. Indeed, arbitrariness, irrationality, perversity and mala fide will render the policy unconstitutional. However, if the policy cannot be faulted on any of these grounds, the mere fact that it would hurt business interests of a party, does not justify invalidating the policy. In tax and economic regulation cases, there are good reasons for judicial restraint, if not judicial deference, to judgment of the executive. The Courts are not expected to express their opinion as to whether at a particular point of time or in a particular situation any such policy should have been adopted or not. It is best left to the discretion of the State.‖ It should be remembered that the object and scope of judicial review of administrative action is different from that of appeal. The object of judicial review of administrative action by the ordinary courts is to keep the administrative authorities within the bounds of their powers under the law. Appeal, on the other hand, means that the superior administrative tribunal or court to whom appeal lies under the law, has the power to reconsider the decision of the inferior tribunal on the merits. Appeal, however, is a creature of statue and there is no right of appeal unless there is a specific statutory provision creating that right. The power of revision is usually placed at the hands of the highest authority, e.g., the State Government, to correct any illegality or irregularity in the proceedings before the inferior authorities. There are: Sometimes the statue expressly states that the power of revision may be exercised suo motu as well as on the application of the party aggrieved; Sometimes the statue only authorizes the superior authority to use his power or revision suo motu or of his own motion, e.g., original s. 33 of the Income-tax Act, 1 922. In such a case the party aggrieved has no right to relief and the revisional authority has no duty to perform, on the application of such party ; Difficulty of interpretation arises where neither the words ‗suo motu‘, nor ‗on application‘ are used by the statue.
11 SUGGESTED FORM OF ADMINISTRATIVE LAW FOR INDIA The Administrative Law in strict sense of positive law is not law. It is a conglomeration of constitutional provisions, statutes, decisional law, rules, regulations, circulars, memoranda etc. It is concerned with various kinds of government, local authorities and public corporations of government agencies, both at the Centre and at the States and locally with the interplay of ideas and control between these several agencies and the relationships between the several agencies and the general public or the private citizens. It is concerned with the preservation of order, the welfare of the citizen and the rights of the individual as against the government of the country and also with the machinery by which such matters are implemented. Thus, the Indian administrative law in the codified form may consist of the following topics of laws:
Natural justice as propounded by the Supreme Court of India and accepted by the general body politic to the country. General guidelines issued for the officers and staff while arriving at a decision or making a suggestion in the file or note. Law regarding accountability of the bureaucracy for delay in decision-making or omission in decision-making as because commission and omission are equally punishable before law. The member of public bureaucracy should also be personally liable to the government if the government suffers pecuniary loss due to his latches or malafide decisions. He should be asked to make good the financial loss to the government in terms of penalty, fine or compensation paid by government staff or officer. There will also be appellate fora to reconsider such pecuniary fine and penalty, which will consist of bureaucrats only. This will be like a regulatory authority having specialized persons as members. This will eliminate arbitrariness or subjectivity against the government employee. This function can be done by the Administrative Tribunals already constituted. Twenty-first century belongs to information technology. The administration, which could not keep peace, will be redundant. The exceptions in the Contempt of Courts Act should be enlarged and classified. Notice for contempt should be ensured to be delivered personally to the condemner or to his personal assistant or Personal Secretary (PA or PS). Motive should be a good defence in criminal contempt. In case of Small Civil contempt, the fines should be realized personally from the condemner if his personal negligence or ill intention is proved over and above the collective decision mechanism. Contempt power should not be used as a response to failure to implement judgments. If it is so, all in chain should be called for contempt including Ministers. As civil servants are liable for contempt of courts, the subordinate judges should also be liable for not following the judgments or orders of the Superior Courts on equal footing. Truth must be made a defence to the exercise of the power of contempt of court as recommended by the Constitution Review Commission headed by Justice (retd.) Venkatchallaiah.
A Commission should be set up at the Central and State Level to regulate transfers, promotions and service conditions of bureaucrats to make them fully transparent and objective. In fructuous tiers of appeal like many appellate tribunals should be discontinued since the decision of State Administrative or Central Administrative Tribunals are subject to the appellate jurisdiction of the High Court. In fact, the appeal from Administrative Tribunals should lie to the Supreme Court to ensure efficacy of the Administrative Tribunals and to reduce arrears of cases in High Courts. Judicially recognized dimensions of Article 21 like the right of survival, right to shelter, right to a clean and healthy environment and well recognized human rights must be made enforceable rights so that bureaucrats at all levels are well aware of ramifications of their decisions. Important constituents of right to information should be part of the Administrative Law of India. Constitutional Amendment or Bill after passing by the legislatures should come into force within the specified time periods and should be a part of legislation. The core powers should not be delegated. The appropriate authority should publish draft of delegated legislation at least 30 days before to receive comments and suggestions from the public. This will bring about awareness of the delegated legislation and will generate public debate. And then, it should be placed before the legislature in due time. There should be a constitutional body to investigate instances of corruption. All high functionaries including the Prime Minister like in LokPal Bill, should be brought within its ambit. The punishment in the form of pecuniary penalty fine through administrative body should be so much in quantum as the corruption will no longer be a profitable venture. Apart from body of law, the administrative law should also contain general code of conduct, which will be generally and equally applicable to all members of the public bureaucracy irrespective of their rank or position in the government. This code of conduct will also help to cover unforeseen actions, actions in unforeseen or emergency situations, commissions or omissions by the bureaucrat.
This whole body of law, rules and guidelines will help the members of public bureaucracy to enlighten themselves regarding their rights, duties and decision-making process in the bureaucratic organization which is intricately linked with the progress of the society or the nation. They will treat it like their Ramayana or the Bible. Thus, the chances of their bona fide errors in decision-making will be less. Many of the cases will not go to law courts delaying the matters further for decision. Last but not the least, public will be greatly benefitted by the just and fair decision-making process at various levels of the bureaucracy and will place their faith and trust in the government bureaucracy.
12 CONCLUSION The Law Commission of India constituted in 1955 observed, ―The vast amount of Legislation which has been enacted by the Union and the States, a great deal of which impinges in a variety of ways on our lives and occupations. Much of it also confers large powers on the executive. The greater, therefore, is the need of ceaseless enforcement of the rule of law, so that the executive may not, in a belief in its monopoly of wisdom in its zeal for administrative efficiency, overstep the bounds of its power and spread its tentacles into the domains where the citizens should be free to enjoy the liberty guaranteed to him by the constitution.‖ From the above citation it can be said that the since the independence till today very less efforts have been made to evolve a mechanism to regulate the functions of administrative authorities so as to make them in consonance with constitutional freedom guaranteed to each individual. Without some kind of power to control administrative authorities there is a danger that they may commit excesses and degenerate into arbitrary bodies. There has not been so far much conscious effort on the part of Government and Parliament in this Country to develop a viable system of administrative law drawing a balance between personal rights and freedoms, on the one hand, and administrative needs and exigencies of a developing social welfare state, on the other. In England and USA, such attempts have been made from time to time, but in India attempts in this direction are, by and large, lacking so far and, therefore, a huge burden has been cast on the judiciary to give shape to the principles by which administrative functioning and behaviour can be regulated keeping in view the twin objectives mentioned above. Since independence it has become necessary to re-condition and develop the principles of administrative law, so as to meet the needs of a democratic system with the demands made on a country to develop fast in to socio-economic sphere. Since commencement of the constitution the most commonly used technique to bring an administrative action within the cognizance of the courts has been the writ system (Art. 32 & 226). Innumerable cases have taken place in this area and hundreds of cases continue to be filed against the administration every year for seeking its redress. The writ jurisdiction conferred on the High Court‘s by Art. 226 can be invoked to enforce not only fundamental rights but a non-fundamental right as well. The High Courts and Supreme Court step in to correct the error where the rules framed under the governing law do not conform to the law o r the action of the administrator is not in accordance with the administrative rules or are against the fundamental axiom of justice and fair-play. However remedy is available at the disposal of the court of law. No fixed, codified laws are been framed to decide the dispute between individual and public official. Also the question remains that-In what cases do the courts feel that redress to complainants is called for? Provisions which may be invoked for the purpose of bringing matters before the court? – The types of relief which the court may give? – The grounds on which, & the conditions subject to which, the various reliefs may be given by them? As well as the question, whether, a particular administrative action infringes a fundamental right or not and therefore, whether a
petition under Art. 32 to challenge it, is maintainable or not, down at times raise complex issue. The courts have also, however, evolved self imposed restrictions. Matters which effect policy and require technical expertise, the High court would leave such matters for decision to those qualified to redress this issue. The Government of India are contemplating to set up administrative tribunals on the French Model for disposal of cases relating to fiscal and labour laws. Droit administratif:
Droit administratif is the name given to the Administrative Law prevailing in France. In this system the judicial power is kept separate from administrative power. A person seeking any redress against the administration has to go to an administrative court (Conseil d‘Etat) and not to an ordinary court. Thus the system of Droit administratif in France has resulted in noninterference by the Courts in the working of administrative authorities. Need for Establishment of a similar Institution in India:
It is true that the establishment of an institution similar to Conseil d‘Etat in France may not be quite suited to the conditions in India. However it is necessary to develop administrative courts in the lines of the French Conseil d‘Etat would b e necessary because that will serve as counterpoise to the arbitrary action of the administration. The creation of separate hierarchy of administrative courts brings about a clear division between the spheres of civil and administrative law. There are separate law reports in both the branches of law. In India there is expansion of the public sector and the State is assuming increasing control over the life of the community. There is a move for building an equalitarian society. In this context, it is desirable that India should develop a well ordered system of administrative law which may be able to absorb the new relations of public into this legal system. The Indian administrative law while basically common law oriented as the Administration is subject to judicial control, has also imbibed some features of droit adminstratif as is evident from the increasing tribunalisation of the decision making process. View on Lokpal (Ombudsman system in India):
Lokpal system is not suitable to India, following are some of the reasons. The primary idea of the Ombudsman in the Scandinavian and the Common law countries where the institution has been introduced is to oversee maladministration e.g., negligence, delay, inefficiency, bias, abuse of power and to make the administration more humane and accountable. However in India all these aspects are lacking. The system of Lokpal is meant only for investigating into charges of corruption against public officers at high offices. Maladministration which is the primary concern of the ombudsman in other countries was thus proposed to be kept out of the purview of the Indian ombudsman. This is not proper. It has been suggested that, so far, the institution of ombudsman has succeeded only in countries with small population and that in a populous country like India, the ombudsman may be
overwhelmed with administration.
complaints
of
maladministration
and
allegations
against
the
What to do?
There is a great need for an institution, independent of the executive, to supplement the system of judicial control over administrative action in view of the limitation of judicial review so as to reduce the sense of grievance presently nursed by the people against the administration. In the long run, however, it is necessary to improve the tribunal system in India so that tribunal can provide an effective review-mechanism of administrative decisions. To the extent, the need to resort to the Lokpal would be reduced. Also it has been it has been the experience of the ombudsman in other countries that many grievances against the administration are arises because of the failure of the administration to give reasons for the decisions taken by it and that if reasons are given as a matter of course then the number of complaints may be reduced. It will be a great advantage to the individual affected by an administration, were to disclose to him the reasons for acting in the way it is acting. He can then decide whether he should challenge the action or not in a court of law. Many challenges to administrative action are made at present because the individual affected, being ignorant of the reasons, does not know whether the action suffers from some flaw or not. In the area of quasi judicial adjudication, an obligation to make speaking order has come to be imposed on the concerned bodies. A similar development is a desideratum in the area of administrative powers. The Conseil d‘Etat in France has gone far in the direction of requiring administrative decisions to contain reasons. Therefore, if the administration in India were made to adopt the practice of furnishing reasons for its decision to a person feeling aggrieved by it, then the number of complaints flowing to the Lokpal (ombudsman) may be reduced and become manageable. In any case, there is a great need to supplement the existing mechanism to supervise administration in India, and the experiment of the ombudsman is worth a trial. It is bound to result in the improvement of administrative individuals dealing with the administration.
