This article is written by Sonali Chauhan, a student of Lloyd Law College, Greater Noida. The author, in this article, has discussed the concept of Administrative Law.
Table of Contents
In India, several administrative bodies appointed by the Central or State government are presented to ensure the proper and systematic functioning of government agencies and public enterprises set up either by the State or Central government. Administrative agencies can be categorized into three: the Legislative, the Executive and the Judiciary. Under these three main heads, all the administrative activities can be covered. In order to regulate the activities of the administrative authorities, it becomes necessary to keep an eye on these administrative agencies. Therefore, the concept of Administrative Law has been introduced. Administrative law deals with the authorities’ powers, the manner in which these powers are exercised, and the remedies accessible to the aggrieved individuals when these authorities abuse these powers. Administrative law is a part of Constitutional law and all administrative law concerns are also constitutional law concerns. The primary aim of the study of administrative law is to unravel how it is possible to keep these administrative authorities within their limits so that discretionary powers can not be transformed into arbitrary powers.
Chronicles of Administrative Law
Administrative law is not codified, documented or well-defined. It is basically unwritten, uncodified, or judge made laws. Even in the ancient times, evidence of administrative law can be traced. Kings and administrators governed and observed the concept of dharma. Kings and officers followed the basic principles of natural justice and fair play as the administration could only be run on those principles accepted by dharma, but there was still no administrative law in the sense that it is being studied today. The government powers had increased after the establishment of the East India Company and the British rule in India. The British government passed many acts, statutes, and laws regulating public safety, health, morality, transportation, and labor relations. With the Stage Carriage Act 1861, the practice of granting an administrative license started within the State.
Under the Bombay Port Act, 1873, the first public corporation was established. The Northern India Canal and Drainage Act, 1873 and the Opium Act, 1878 accepted delegated legislation. The Indian Explosives Act, 1884 took appropriate and effective steps to regulate trade and traffic in explosives. Many statutes contained provisions concerning the holding of permits and licenses and the settlement of disputes by administrative authorities and tribunals. Governmental social and economic policies have had a significant impact in the present century on citizen’s private rights such as housing, employment, planning, education, health, service, pension, goods manufacturing, etc. These problems could not be effectively solved by the traditional legislative and judicial system. As a result, delegated legislation as well as tribunalization, increased. Therefore, administrative law became a living subject. The government’s activities and functions have further increased since independence. 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 were taken for those employed in industries.
A welfare state’s philosophy was embodied specifically in the Indian constitution. There are provisions in the Constitution itself to ensure social, economic and political justice, equality of status and opportunity to all citizens. The ownership and control of society’s material resources should be so disturbed to serve the common good of the society. The operation of the economic system should not result in wealth and means of production being concentrated with few. The State is empowered to impose reasonable restrictions on the fundamental rights guaranteed by the Constitution for the implementation of all objects. While interpreting all of these Acts and the constitutional provisions, the judiciary began to take into account the social welfare objects and ideals.
In Joseph Kuruvilla Vellukunnel v. RBI, AIR 1962 SC 1371:1962, the Supreme Court held that under the Banking Companies Act, 1949, the Reserve Bank was the sole judge to decide whether a banking company’s affairs were being conducted in a manner that was detrimental to the interest of depositors and the Court had no option but to pass a winding order as the Reserve bank prayed. In Javid Rasool Bhat vs. J&K State, (1984) 2 SCC 631, 637: AIR 1984 SC 873,877, the Supreme Court observed that a member of the Selected Committee could even ask irrelevant questions to investigate candidates’ ability to detect irrelevances.
This is not a newly coined term, “administrative law.” In almost every legal system in the world, traces of administrative law can be seen. In India, from Mauryas to Guptas, from Guptas to Mughals, from Mughals to the East India Company: administrative law was one of the most advanced branches of law in all of the mentioned periods. It can be said that administrative law is the 20th century’s most notable development. Administrative law’s development goes hand-in-hand with society’s development. It can be more rightly said that administrative law is the sociology of law and not the philosophy of law. The three main stages resulted in the expansion of the meaning of Administrative Law:
- Dogma of Collectivism
- Social-Welfare State.
The political gospel of laissez-faire was preached in the early 20th century. The principles on which laissez-faire theory works are as follows:
- Minimum government control.
- Free enterprise.
- Law and order not counted as state subjects.
- Power was said to be concentrated in the individual’s hands.
The Laissez-faire theory found the following pitfalls:
- Concentration of powers.
- Which led to human misery.
- Widening the inadvertent gap between the poor and the rich.
The consequence of giving the powers in the hands of individuals and minimal governmental control proved catastrophic. Through this, the vital power was concentrated in the rich people’s hands and the economic balance was terribly shaken that only paved the way for a debacle that is increasing economic disparity where the rich become richer and the poor become poorer.
Dogma of Collectivism
Following the miserable consequences that the police state suffered as a result of Laissez-Faire’s failure, the collectivism principle evolved which states the State and individuals must work in proper synchronization. The state had proper control over the individuals’ actions and the state also stood up to take responsibility for the life and property of the individual.
The Dogma of collectivism gave birth to a social welfare state. India is, as articulated in the Preamble of the Constitution, a socialist republic. The social welfare state thrives on the principle of providing the justice of all kinds, whether it be social, economic or political and all government laws and actions are to be taken in consideration of the citizens’ interests. The Constitution envisages an egalitarian society.
In fact, Administrative law is the body of those who regulate and control the administration. Administrative law is that branch of law that deals with the composition of powers, duties, rights and responsibilities of the various government bodies involved in public administration. Under it, we study all those rules, laws and procedures that help regulate and control the administrative machinery properly.
There is a considerable divergence of opinion on the definition/conception of administrative law. The reason for this is that there has been a tremendous increase in the administrative process and it is impossible to attempt any precise definition of administrative law that can cover the whole range of administrative processes.
Ivor Jennings in his “The law and the constitution, 1959” provided the following definition of the term “administrative law”.
According to him, “Administrative law is the law relating to the administrative authorities”. Jennings has defined Administrative Law as “the law relating to the administration. It determines the organization, powers, and duties of administrative authorities”.
This is the most widely accepted definition, but in this definition, there are two difficulties:
(1) It is a very broad definition because the law that determines the power and functions of administrative authorities may also deal with the substantive aspects of such powers. For example: Public health services legislation, houses, town and country planning, etc. But these are not covered by the scope and ambit of administrative law, and
(2) There is no distinction between administrative law and constitutional law.
According to K.C. Davis, “Administrative law is the law concerning the powers and procedures of administrative agencies, including especially the law governing judicial review of administrative action”.
According to Wade (Administrative Law, 1967), any attempt to define administrative law will create a number of challenges. However, if the state’s powers and authorities are classified as legislative, administrative and judicial, administrative law will be ‘the law which concerns administrative authorities as opposed to the others”.
Once again, this definition also has some difficulties. It does not distinguish between administrative and constitutional law. Like Jennings; this definition is also very wide-ranging. It covers the whole legal field except for the legislature and the judiciary. It also covers local governmental law. It is also said that the functions of the legislative, executive and judiciary can not be completely and definitely divided. It’s very hard to say exactly where the legislation ends and where the administrative process begins. Although the legislature’s function is to enact a law, the administrative authorities legislate under the powers delegated to them by the legislature and this delegated law is certainly part of administrative law.
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 procedure 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”.
According to this definition, Administrative law deals with four aspects:
- It deals with the composition of administrative authorities and their powers.
- It established the limits of these authorities’ powers.
- It prescribes the procedures to be followed in the exercise of those powers by these authorities.
- It controls these administrative authorities by judicial and other means.
According to Garner, administrative law may be described as “Those rules which are recognized by the court as law and which relates to and regulate the administration of government”.
Austin considered administrative law to determine the ends and modes in which the sovereign powers are exercised:
(1) directly by the monarch or sovereign member, or
(2) directly by the subordinate political superiors to whom portions are delegated.
Bernard Schwartz in his An introduction to American Administrative Law 1985 defines administrative law as the law applicable to those administrative agencies which possess powers of delegated legislation and or ad judiciary authority.
Wade and Philips define it as the law relating to the organization and service provided by the various administrative agencies of government. It deals with the powers of all such bodies and determines their rights and duties.
Bernard Schwartz has defined Administrative Law as “the law applicable to those administrative agencies which possess of delegated legislation and ad judiciary authority”.
Dicey in the 19th-century defined it as:
Firstly, the portion of a nation’s legal system which determines the legal statutes and liabilities of all State officials.
Secondly, defines the rights and liabilities of private individuals in their dealings with the public officials.
Thirdly he specifies the procedure for enforcing those rights and liabilities.
There are certain imperfections in this definition. It does not cover several administrative law aspects, for example, it excludes the study of several administrative authorities such as public corporations that are not included in the phrase “State officials”, it excludes the study and control of the powers and functions of various administrative authorities. His definition focuses on one aspect of administrative law, namely, public officials’ judicial control.
Indeed, developing a precise and satisfactory scientific definition of administrative law is difficult. Many jurists have tried to define it. But none of the definitions has fully demarcated administrative law’s nature, scope and content. Either the definitions are too broad and contain much more than necessary or they are too narrow and do not contain all the content necessary.
Nature and Scope
Administrative law deals primarily with the administrative authorities’ powers and responsibilities and the multiple remedies accessible to the affected persons. Under the welfare state, because of technological & scientific developments, there is a tremendous increase in the state activities. As Roland says, “before the days of the automobile, there was no need for the policeman to direct traffic because there was no traffic!”
The need to exercise powers grew with the increase in state activities: administrative and executive powers were expanded, delegated legislation was also developed in the form of rules, regulations by-laws, notifications, etc. Administrative tribunals have begun to exercise judicial functions to resolve disputes.
The Administrative authorities have discretionary powers. If these are used properly, the welfare state will be there. There is going to be a totalitarian state if abused. (Lord Dennings)
Administrative law therefore defines and demarcates these powers and also provides remedies to those affected persons when abuse occurs. This exercise of considerable power is the main cause of the growth of administrative law. The trend is to reconcile people’s freedom and justice with the need for implementing social and economic policies.
In this respect, within the framework of the Constitution of India, personal freedom and liberty are to be safeguarded.
In this context, the basic principles of administrative law are the judicial review of administrative action, prevention of misuse or abuse of power, and provisions for suitable remedies.
With Bernard Schwartz, it is true to say that “the goal of administrative law is to ensure that the individual and the state are placed on a plane of equality before the Bar of Justice“.
General Principles of Administrative Law
In the context of administrative law, the first step is to determine the government’s legal validity or authority of the action. This involves looking at the basis of the legal authority to act, that is, the specific law that gives the lawful authority to act and to the administrator. Basically, constitutional law deals with who is capable of making laws and administrative law deals with representatives of government who have been empowered to act by these laws. Therefore, between constitutional and administrative law, there is a close relationship. Specifically, if the law that empowered the officials of government to act was found to be unconstitutional and invalid, then any actions taken by the official government under that law would also be invalid which leads to a legal remedy for an individual who is adversely affected by this action.
Purpose of Administrative Law
I.P. Massey identifies the basic bricks of the administrative law foundation as:
- Checking the abuse of administrative power.
- To ensure that citizens are able to determine their disputes impartially by officials, in order to protect them from unauthorized violation of their rights and interests.
- To make those who exercise public power accountable to the people.
It is necessary to have an administrative law system rooted in the basic principles of the rule of law and good administration in order to realize these basic purposes. The following three broad principles underpin a comprehensive, advanced, and effective system of administrative law:
- Administrative justice, which is at its core, is a philosophy that should be properly safeguarded in making administrative decisions about individuals’ rights and interests.
- Executive accountability, which is intended to ensure that those who exercise the state’s executive (and coercive) powers can be called upon to explain and justify the way they have accomplished this task.
- Good management, administrative decision, and action should be consistent with universally accepted standards such as rationality, fairness, consistency and transparency.
Reasons for the growth of Administrative Law
There are various factors which are responsible for the growth of Administrative law:
- There’s a radical change in the state’s role philosophy. The negative policy of preserving law and order as well as social welfare is changing. The state didn’t confine its scope to the traditional and minimal functions of defense and administration of justice, but adopted the positive policy and undertook a variety of functions to perform as a welfare state.
- The judicial system has proven to be inadequate to decide and settle all types of disputes. It was slow, expensive, inept, complicated and formal. It was already overburdened and even very important matters could not be expected to be disposed of quickly. The important issues could not be solved merely by interpreting the statute provisions, but they required consideration of various other factors and this could not be done by ordinary courts of law. Thus, industrial tribunals and labor courts were established that had the techniques and expertise to deal with these complex problems.
- The legislative process was inadequate as well. There was no time and technique to handle all the details. It was impossible for it to lay down detailed rules and procedures and even when detailed provisions were laid down by the legislature they were found to be defective and inadequate. Therefore, the delegation of certain powers to the administrative authorities was necessary.
- There is scope in the administrative system for experiments. It is not necessary to continue a rule in legislation until the commencement of the next legislature session. A rule can be made here, tried for some time, and can be altered or modified within a short time if it is defective. The legislation is therefore rigid in nature, while the administrative process is flexible.
- Technicalities can be avoided by administrative officials. Administrative law is not a theoretical and legislative approach but a functional approach. The traditional judiciary is technical, rigid and conservative. Without formality and technicality, it is impossible for the courts to decide cases. Administrative tribunals are not bound by rules of evidence and procedure and can take a practical view of the matter in order to decide complex issues.
- Administrative authorities are able to take preventive measures. They don’t have to wait for parties to come before them with disputes unlike regular courts of law. In many cases, such preventive actions may be more effective and useful than punishing a person after a breach of law has been committed. As Freeman says, ‘Meat inspection and grading respond more adequately to the consumer’s needs than does the right to sue the seller after the consumer is injured.’
- Administrative authorities may take effective steps to enforce the aforementioned preventive measures, such as suspension, revocation and cancelation of licenses, destruction of contaminated articles, etc. which are generally not available through regular courts.
Indian Administrative Law
In India, the Constitution is supreme with discretionary power but on the other hand, parliament is supreme in England. Law enacted by the parliament is authoritative and fully admired. Nobody can challenge the validity of such a law, but only the statute of ultra vires can challenge such law under which it was adopted.
Furthermore, the British parliament’s law is the highest form of law and prevails over any other form of law. In India, on the other hand, on the Supreme Court, the written constitutional power of Judicial Review is the same as that of Ultra Vires.
It also defines the validity of such challenges as:
- The action must be carried out in accordance with rules and regulations.
- Rules, regulation and parent acts must also be consistent with the Constitution.
- Rules must comply with the relevant statutes.
- If the challenge has been converted and accepted in the amendment, such an amendment should comply with the basic structure.
Constitutional Law and Administrative Law
Notwithstanding substantive and procedural law, constitutional law has a separate status that specifically defines the structure and organization of only laws. On the other hand, administrative law obeys constitutional laws and deal with the organization and functioning of laws ‘in force’. Such laws should be applied and implemented in accordance with the Constitution. Any law which abbreviated or endangers or violates or abrogates an individual’s right provided as Fundamental Rights, will attract judicial review action or any misconduct detected in functions will also need to be reviewed by judges as judiciary with the power to decide administrative matters. Source of Administrative Law and Constitutional law is the same and i.e. rule of law.
Administrative Law vs. Constitutional Law
The constitution is the state’s superlative law which is subject to all other land laws.
Administrative law, rules, and regulations are subject to the Constitution. If administrative law is inconsistent with the Constitution, it is easy to declare the former unconstitutional.
Mainly concerned with the exercise of powers by actions of administrative bodies or executive agencies.
Establish the state, executive, judiciary and parliament’s supreme powers and set general principles for operations.
Establishes general rights, including basic human rights and duties.
Set the mechanisms and procedures for administering the rights both at the supreme level and by the delegated authorities.
The authoritative principles derive from constitutional law such as the separation of powers, the independence of the judiciary, natural justice and the reasonableness of administrative actions.
Lay the foundation for the principles of natural justice in administrative law.
In general, both regulate the powers of the legislature, the executive and the judiciary; the functioning of the state’s supreme powers depends on the constitution and the exercise of powers is balanced by administrative law. The laws complement one another, so without administrative law, there is no easy application of constitutional law and vice versa.
Red Light Theory
Red Light Theory: Emphasizing the judicial control over the authorities’ activities, it tends to believe that conferred power may be misused. This theory’s approach is indirect, external and with fear of action with the authorities’ arbitrariness.
Kernels of Administrative Law
- Rule of Law: Supremacy of Law.
- Natural Justice: Fairness and Justness in Law.
- Judicial Review: When Administrative and Legislative authorities are subject to Review and administrative discretion.
Rule of Law
Sir Edward Coke CJ introduced this concept in King James’ first reign. He successfully maintained the battle against the king, that “King should be under God and Law and he established the supremacy of the Law against the executive”.
“The Constitution is the mandate. The rule of law is the Constitution. No rule of law can exist other than the constitutional rule of law. There can be no pre-constitutional or post-constitutional rule of law that can run counter to the constitutional rule of law, nor can there be any invocation of any rule of law to nullify the constitutional provisions during the time of emergency. Article 21 excludes the rule of law regarding life and liberty”.
Habeas Corpus Case
In which, pursuant to Art. 358, Art. 14, 21 & 22 were suspended and on 27 June 1975, the mob of people was arrested under the MISA Act (Maintenance of Internal Security Act, 1971) by the President’s order at the time when Indira Gandhi’s government declared an emergency on 25th June 1975. The Supreme Court confronted a question as to whether the third limb of Dicey’s doctrine was an integral part of the Indian concept of rule of law.
Agreeing with the view as early as 1215, it had been said in Magna Carta: No free man shall be taken and imprisoned or diseased or exiled or destroyed in any way, nor will we go or send for him, except under the lawful judgment of his peers and by the law of the land. Dicey in his classic book, developed his theory of Coke, “Law and Constitution,” in 1885.
According to the Supremacy of Law, all projects fall within the scope of law, no one is above the law and all operations are subject to law only;
Equality before law states that everyone has equal protection of law which is without discrimination and without any authority’s discretion, including the right to remedy;
And judges made law: The laws made by the judges must be respected and obeyed, as they are precedents and cases decided earlier, considering the application of their common sense, wisdom and fine sense of judgment.
In the case of S.G Jaisinghani v. UOI & others, AIR 1967 SC 1427 essentials of the rule of law are explained.
According to Roman law, certain basic legal principles were required by nature, or were so obvious that they should be applied universally without the need for a legislator to enact them into law. This was the seedbed or the growth of natural justice. In both common law and Roman law jurisdictions, the rules or principles of natural justice are now regularly applied by the courts. It was held in the case of Menka Gandhi v. UOI, 1978 AIR 597, that Parliament does not have the power to legislate any law that violates fairness and justness. This means that the law enacted should carry justness. Natural justice principle or fundamental actions are not fixed or prescribed in any code of law. The term is also referred to as substantial justice, universal justice, fundamental justice, divine justice and rational justice. The role of natural justice can be described as basic values that a man has cherished over the centuries.
In the historical case, A.K Karipak v. UOI, (1969) 2 SCC 262, the Supreme Court held that “the purpose of the rule of natural justice is to secure justice or put it in a negative way to prevent the miscarriage of justice. This rule can only work in areas that are not covered by any validity made by law. In other words, they are not supplanting land law but supplementing it”.
Indian law has always admired a policy that says, “Let thousands of wrongdoers go free, but not one innocent individual should be convicted or sentenced.” This travels to the roots of justness and fairness and gives the convict certain privileges, such as fair hearing, to be represented in the courts of law without bias and consideration and enforcement of the law while pronouncing the verdict. The essence of natural justice could only be described as procedural fairness in order to ensure fair and reasonable decision-making.
Natural Justice principles are part of legal and judicial procedures and consist of two concepts:
(a) Audi alteram partem or the right to a fair hearing.
(b) Nemo judex in sua causa or no man can be a judge in his own cause.
“Natural law is the sum total of all those norms which are valid independently of and superior to, any positive law and which owe their dignity not to arbitrary enactment but, on the contrary, provide the very legitimate force of positive law to be binding.”
Judicial review is the most important power in the judiciary’s hand that can maintain the rule of law in the country. The power of the judiciary to keep an eye on the legislatures and administrative activities, how they perform their duties, whether the functioning of each sphere is consistent in nature or not, and if the rights granted to an individual are abrogated, the upper authority, i.e., judiciary, shall review them. Judicial power to review and determine the validity of the law or order can be defined as the power of judicial review.
There are two standards to follow:
- Legitimizing the Action of Government.
- Protecting actions of the constitution.
It’s a doctrine where executives and legislatures are subject to reconsideration or review. The judiciary has the ultimate power to play the role of a watchdog of the legislature and the executive. when a wrongful act is done because of discretionary power by any governmental body, the judiciary can review it and ensure that the fundamental rights of an area are not violated.
There are, broadly speaking, judicial review functions, viz. 1. Judicial review of legislative actions, 2. Judicial review of judicial action, 3. Judicial review of administrative action, preventing legislatures and administrative functions from taking unconstitutional decisions.
An order appointing a commissioner or a report submitted by the commissioner may be challenged inter alia on the grounds of mala fide intention, colourable exercise of power, ultra vires, etc. If the courts can set aside wrong and illegal acts by applying the parameters of the judicial review, the administrative authorities can review the same act by reviewing such orders if they find that they are ultra vires.
“Therefore, judicial review is the touchstone and essence of the rule of law”. It is a custodian of Rule of Law.
In Ram Jawaya v. State of Punjab, the Supreme Court noted, “It may not be possible to frame an exhaustive definition of what executive function means and implies. Executive power ordinarily connotes the residue of governmental functions that remain after legislative and judicial functions are taken away.”
Administrative functions in character are neither judicial or legislative.
- Orders to be based on the policies of the government.
- There is no obligation to adopt a decision-making judicial approach.
- Unless compulsion is made by statutes, it is not bound by evidence or procedure.
- Can take decisions in the exercise of statutory authority unless it does not contravene the law.
- Function as delegated or sub-delegated powers, except when there is any bar or prohibition by the statute.
- Not only evidence to be taken into consideration, but also the discretion to be admired.
- Not bound by the natural justice principle, unless bound by the statute.
- Legislatures or the judiciary may invalidate the reasons provided on the basis of unreasonability.
- There is no authority to act as a quasi-judicial authority in every matter.
- Writs such as Certiorari and Prohibition are not available in each matter. Administrative law is recognized as a separate and independent branch of the legal entity.
India’s Constitution also has substantial effects on legislation, including administrative law.
Doctrines of Administrative Law
I. Doctrine of Proportionality
In Europe in the 19th century, the doctrine of proportionality was developed and originated in Prussia. It is a principle in which courts would examine administration priorities and processes for reaching or recalling a decision. Proportionality means that the administrative action should not be more drastic than it should be to achieve the desired outcome.
This means that there should be no use of canon to shoot a sparrow. This doctrine, therefore, attempts to balance means with the ends. Proportionality shares space with reasonableness and courts while exercising the review power to test that reasonability. The Indian courts have been following this doctrine for a long time.
This doctrine is applied in the following situations:
- Where an administrative action invades fundamental rights, the Court scrutinize administrative action strictly and address the issue of the correctness of the authority’s choices. The court would also balance adverse effects on the rights and objects which are sought to be achieved.
- Where there is a question of the quantity of punishment imposed by the administrative authority, the court would not undertake strict scrutiny. Courts follow the principle that while the quantum of punishment is within the administrative authority’s jurisdiction, arbitrariness must be avoided.
- While reviewing the administrative action on the basis of proportionality, judges usually examine two things: a) Whether the relative merits of distinct objectives or interests have been adequately weighted and balanced? B) whether the action under review was excessively restrictive or an unnecessary burden imposed in the circumstances?
Important judgments on the doctrine of proportionality
Many judgments have been made which clarify the doctrine of proportionality in Article 14 and 19 of the Indian Constitution. Ranjit Thakur v. Union of India (1987 AIR 2386) was one of the earliest decisions on judicial review in administrative law and it was noted that:
“The doctrine of proportionality, as part of the concept of judicial review, would ensure that even on an aspect which is, otherwise, within the exclusive province of the court-martial, if the decision of the court even as to sentence is an outrageous defiance of the court even as to sentence would not be immune from correction. Irrationality and perversity are recognized grounds for judicial review.”
In the case of Om Kumar v. Union of India (SLP civil 1993), the Supreme Court noted, inter alia, that while it dealt with the validity of legislation infringing fundamental freedoms listed in Article 19(1) of the Constitution of India, it was repeatedly questioned whether the restrictions imposed by the legislation were disproportionate to the situation and not the least restrictive of choices.
In the Om Kumar case, therefore, proportionality was deemed to mean whether while regulating the exercise of fundamental rights, the legislature or the administrator adopted the appropriate or least restrictive choice of measures in order to achieve the purpose of the law or administrative order. And that it was up to the superior courts to decide whether the choice made by the legislature or the administrative authorities was excessively infringing the rights.
II. The Doctrine of Legitimate Expectations
Lord Denning first used the term “legitimate expectations” in 1969 and has since assumed the position of significant public law doctrines in almost all jurisdictions. The doctrine of legitimate expectations belongs to the domain of public law and is intended to provide relief to the people when, in the strict sense of the term, they are unable to justify their claims on the basis of law, although they have suffered a civil consequence because their legitimate expectations have been violated.
It’s something between “right” and “no right” and it’s different from desire and hope for anticipation. For example, if the government has made a scheme to provide drinking water in villages in a certain area but later changed it to exclude certain villages from the scheme’s purview, then what is violated in such a case is the people’s legitimate expectation in the excluded village. If the exclusion is not reasonable, the government can be held responsible.
Important judgments on the Doctrine of Legitimate expectations
In India, this doctrine has been developed by the Supreme Court to check the administrative authorities’ arbitrary exercise of power. This doctrine provides a central space between no claims and legal claims in which a public authority can be held accountable on the basis of a legitimate expectation. The first reference to this doctrine is to be found in State of Kerala v. K.G. Madhavan Pillai (AIR 1989 SC 49).
In this case, the government issued a sanction to the respondents in order to open a new unaided school and upgrade the existing ones. However, a direction has been issued after 15 days to keep the penalty in abeyance. This order was challenged on the grounds of violation of natural justice principles. The court held that the sanction order created in the respondent a legitimate expectation that was violated by the second-order without following the principles of natural justice, which is sufficient to vitiate an administrative order.
This doctrine is a fine example of the creativity of the judiciary. The origin of this doctrine may be linked to Article 14 of the Constitution, which abhors arbitrariness and insists on fairness in all administrative transactions.
The doctrine has both positive and negative applications. If applied negatively, it may be prohibited for an administrative authority to violate people’s legitimate expectations and if applied in a positive matter, an administrative authority may be forced to fulfill people’s legitimate expectations. This is based on the principle that public power is a trust that must be exercised in its beneficiaries’ best interests.
Administrative Authorities in India
- IAS- Indian Administrative Service.
- IPS- Indian Police Service.
- IAF- Indian Air Force.
- Indian Navy
- Ministry of MSME- Ministry of Micro, Small and Medium Enterprises.
- Indian Military- e.g. BSF Border Security Force so on…
- Department of Finance.
- Home Ministry, etc.
The role of administrative law is to limit government agencies’ powers and to keep administrative authorities in check. It is not always possible to rely on certain general statutes for the determination of disputes between individuals and public authorities and for that appropriate legislation should be in place to govern such disputes. Administrative law should act as the proper law governing administrative actions.
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