administrative lawyer
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This article is written by Dhruv Bhardwaj, a student of Amity Law School, Delhi. In this article, he will discuss the various sources of Administrative Law which exist in India.

Introduction

Administrative Law is the law relating to the administrative operation of government. It deals with the powers and duties of administrative authorities, the procedure followed by them in exercising the powers and discharging the duties and the remedies available to an aggrieved person when his rights are affected by any administrative action. There were various reasons for the expansion of administrative law like the change in the concept of the government, the inadequacy of judicial system, evolution of socialistic pattern of society etc. This article will cover how Administrative Law was built so extensively in the country to be in a position in which it is today.

Reasons for Expansion of Administrative Law

  • The rapid growth of administrative law during the twentieth century owes much to the change in the concept of role and function of the modern government. The doctrine of laissez faire has given place to the doctrine of welfare state and this has led to the proliferation of administrative powers and functions. 
  • It is demanded by the people that the government must solve their problems rather than merely define their rights. It is felt that the right of equality under the Indian Constitution will be a sterile right unless the government comes forward to actively help the weaker sections of the society to bring about equality in reality.
  • The regulation of the patterns of ownership, production and distribution is considered the responsibility of any good government to ensure the maximum good of the maximum number. This again has led to the growth of administrative process and administrative law.
  • A welfare state has necessarily to undertake legislation on an ever widening front, if the ultimate aim of a socialistic pattern of society operating within the domain of the rule of law is to be evolved by  democratic process.
  • The inadequacy of the traditional type of judicial system to give that quality and quantity of performance which is required in the twentieth century for the functioning of welfare and functional government is the biggest single factor which has led to the growth of administrative process and law. Like medicine, in law there is a shift from punitive to preventive justice. Litigation is no more considered a battle to be won but a disease to be cured. Inadequacy of the traditional type of judicial process to respond to this new challenge has led to the growth of administrative adjudication. 

Sources of Administrative Law

General

Source means the origin of the material content of rule or the formal stamp of authority as law. With the view to control administrative operation of the government, it is necessary to know the sources of administrative powers. In common law countries like India, there is no droit administratiff in the sense of there being a different or separate system, and administrative law is a part of the ‘ordinary law’ of the land. Sources of American Administrative Law are common law, statutes and implied powers of the administration.

As regards India, the Administrative Law forms part of the ordinary law of the land. Therefore, in this branch of public law we are concerned with the Constitution, statutes, subordinate legislation and case law. However, administrative law is very closely allied to the study of the government. Ideas about government change and have an influence on law. It is therefore, that administrative law is concerned with the study of documents, orders and decisions which are not true sources of law. The main sources of administrative law in India are as follows:

The Constitution of India

India has a written Constitution which is the supreme law of the land. Being the grundnorm of the legal system of the country, it conditions and overrides all legislative and administrative actions. Besides providing for functional organisation and consequential growth in administrative process, the Constitution has also provided for an elaborate control mechanism. The Constitution demarcates the legislative and administrative power of the Union and the States conferring on the courts, the power to review legislative and administrative action and adjudge their constitutionality. All the legislative actions of the administration have been expressly brought by the Constitution within the purview of Article 13 by defining ‘Law’ as including ‘order’, ‘bye-law’, ‘rule’ and ‘notification’ etc. having the force of law. All these features of the Constitution influence and shape the nature and content of administrative law in India.

Statutes

Statute is the principal source of administrative power. Statute emanates from the Constitution. Under the Constitution, law-making power has been given to Parliament and State Legislatures. Administration is given powers by statutes. All the statutes have to conform to the constitutional patterns. Exercise of administrative powers has to conform to statutory patterns. In England as well in the United States, a good deal of legislation has been enacted to provide for administrative procedures, composition and procedures of tribunals, liability of state and its bureaucracy and for strengthening the control on the exercise of administrative powers. 

Ordinances

The ordinance-making power relates to the legislative powers of the Chief Executive in Union and States. Article 123 of the Constitution of India which deals with the legislative powers of the President empowers the President to promulgate ordinances during the recess of Parliament, and Article 213 confers a similar power on the Governor to promulgate ordinances during the recess of state legislature.

These provisions have secured considerable flexibility both to the Union and to the State to enact laws to meet emergent situations as also to meet circumstances created by laws being declared void by courts of law. Grave public inconvenience would be caused if an Act, like the Bombay Sales Tax Act, being declared void, no machinery existed whereby a valid law could be promptly promulgated. However, it must be remembered that under the Indian Constitution a validating Act must stand the test of Part III of the Constitution. Further it must be noted that the Ordinance making power of the Chief Executive is not unlimited or unbridled. It is provided under the Constitution that the President or the Governor, as the case may be, can issue ordinances on the advice of Council of Ministers. For the confirmation of ordinance approval of the Houses is required. In this way, the power is subjected to legislative control. 

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The question whether the ordinance can be challenged if made on collateral grounds remains open in view of the Supreme Court decision in R.C. Cooper v. Union of India which is also known as the  Bank Nationalisation case. Will the same test, as advocated in the obiter by the court apply for a declaration of emergency. The Madras High Court has, however, held on April 3, 1993 that the dismissal of Patwa Government under Article 356 was invalid because the emergency power under that Article was exercised mala fide. This is a landmark decision which opens a new chapter in the history of public law review. Later on in S.R. Bommai v. Union of India, the Supreme Court has held that proclamation of emergency on ground of failure of constitutional machinery under Article 356 is subject to judicial review. Accordingly, Presidential Rule in certain states was held to be unconstitutional. 

Delegated Legislation

Law-making is the primary function of the Legislature. Yet, in no country does the legislature monopolise the whole of legislative power. A good deal of legislation is made by the administration under the powers conferred by the Legislature. This type of administrative legislation is called delegated or subordinate legislation. The delegated legislation is subject to Judicial and Parliamentary control. In this way, delegated legislation is an important source of law. 

Case Laws

The basis of Indian Administrative Law is judge-made law. This means that it is subject to all the strengths and frailties of judicial law-making. In the absence of special administrative courts, new norms of administrative law have been evolved. The function of courts is two-fold, regulative and formative. The rules laid for controlling the actions of administration by various devices namely, reasoned decisions, quasi-judicial function, rules of natural justice, for instance, rule of hearing and rule against bias have been developed. The new principles laid down form guidelines for the future course of action. 

Reports of Committees and Law Commission

The phenomenal explosion of scientific, industrial and technological know-how placed a counter-balancing responsibility on the functional government to control the forces which science and technology had unleashed. Modernisation and technological developments had created crucial problems such as cultural conflicts, haphazard urbanisation, ruthless exploitation of natural resources, environmental pollution, concentration of economic power, staggering inflation, accelerated smuggling, etc. which a modern government confronts with. These multidimensional problems with a varied social, economic and political ramifications demanded growth of administration and law regulating administration. In such a socio-economic context the increasing powers of administration attracted the attention of the jurists. A former Lord Chief Justice, Lord Hewart published a famous book, The New Despotism, in 1929 which purported to expose the extent to which the Civil Service and “bureaucracy” were then alleged to be the true rulers of the country. Two particular factors were selected for attack on the growth of administrative process:

(i)- The extent to which the executive was given freedom by Parliament to make delegated legislation, and 

(ii)- Complementary evil of freedom from control by the courts over the exercise of executive discretions by reason of extremely wide powers given by the legislature. All this led to the setting up of the “Committee on Ministers’ Powers” which is commonly known as Donoughmore Committee. The Committee submitted its report in 1932. In the opinion of the Committee, three main areas required attention, namely,

  1. The inadequate provision made for publication and control of subordinate legislation;
  2. The lacuna in the Law caused by the inability of a subject to sue the Crown in tort; and
  3. The extent to which the control and supervision of administrative decisions were passing out of the hands of the courts ad were being entrusted to specialist tribunals and inquiry without effective control. The Statutory Instruments Act, 1946 was passed concerning the control of subordinate legislation. The Crown Proceedings Act, 1947 was passed assimilating the Crown’s tort liability to that of an individual of full age and capacity.

The third subject pointed out by the Committee had, however, to wait for longer before the action was taken. In 1955 a new committee was set up to consider the question of tribunals and inquiries generally; their Report known as Franks Report was issued in 1957.

As a result of this Report, the Tribunals and Inquiries Act, 1958 was enacted. This statute set up a permanent Council on Tribunals and laid down certain general principles of procedure to be followed by administrative tribunals and inquiries, and also provided for their supervision by the courts of law. In India, there is Lok Sabha Committee on Subordinate Legislation, and Rajya Sabha Committee on Subordinate Legislation. These committees were established to scrutinize and closely examine the delegated legislation made by the Executive. Most valuable reports have been submitted by these committees which play an important role in evolving Indian Administrative Law. Parliamentary control is exercised over delegated legislation through these committees in an effective way because the administration takes necessary steps on their recommendations to avoid discussion in Parliament. Law Commission has gone into the question of grassroots tribunals, which will have public participation. 

Administrative quasi-legislation

“Administrative quasi-legislation” is a term coined for administrative directions or instructions. An increasing modern trend is the issuing of directions or instructions by the functional government at work. In any intensive form of government, the desirability and efficacy of administrative directions issued by the superior administrative authorities to their subordinates cannot be dispensed with. “Administrative Direction” is a most efficacious technique for achieving some kind of uniformity in the exercise of administrative discretion and determination of policy and its uniform application. These instructions also serve the purpose of providing desired flexibility to the administration devoid of technicalities involved in rule-making process.

Conclusion

Thus, Administrative Law is the best designation for the system of legal principles which settles the conflicting claims of executive and administrative authority on the one side and of the individual and private right on the other. 

 

 

 

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