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Administrative LAW - notes
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S Y L L A B U S
ADMINISTRATIVE LAW
UNIT-I Introduction
- Meaning,
- Administrative Law – The Concept definitions, nature, historical development, sources, relationship with Constitutional law),
- rule of law and separation of powers,
- classification of administrative functions and distinction between them.
- Droit administrative, UNIT –II Delegated Legislation
- Meaning and its kinds,
- Aadministrative directions
- Ddistinction between delegated legislation and administrative directions.
- Control over delegated legislation procedural, judicial and parliamentary control,
- Principles of natural justice,
- Civil services in India. UNIT – III Administrative discretion
- Judicial control of discretionary powers,
- Act of State,
- Tortious liability of the State.
- Contractual liability of the State UNIT –IV Government privileges in legal proceedings.
- Meaning and kinds, Estoppel and Waiver
- official secrets
- right to information
- lokpal and lokayukt
- Central Vigilance Commissions
- Commission of inquiry. UNIT-V Administrative Tribunals-
- Definition of Administrative Tribunals
- Merits, demerits,
- Reasons of growth
- Distinction between courts and Tribunals
- Public corporation - classification characteristics, controls, formation
- Remedies - Constitutional and ordinary.
Administrative law is the bye-product of the growing socio-economic functions of the State and the increased powers of the government. Administrative law has become very necessary in the developed society, the relationship of the administrative authorities and the people have become very complex. In order to regulate these complex, relations, some law is necessary, which may bring about regularity certainty and may check at the same time the misuse of powers vested in the administration. With the growth of the society, its complexity increased and thereby presenting new challenges to the administration we can have the appraisal of the same only when we make a comparative study of the duties of the administration in the ancient times with that of the modern times. In the ancient society the functions of the state were very few the prominent among them being protection from foreign invasion, levying of Taxes and maintenance of internal peace & order. It does not mean, however that there was no administrative law before 20th century. In fact administration itself is concomitant of organized Administration. In India itself, administrative law can be traced to the well-organized administration under the Mauryas and Guptas, several centuries before the Christ, following through the administrative, system of Mughals to the administration under the East India Company, the precursor of the modern administrative system. But in the modern society, the functions of the state are manifold, In fact, the modern state is regarded as the custodian of social welfare and consequently, there is not a single field of activity which is free from direct or indirect interference by the state. Along with duties, and powers the state has to shoulder new responsibilities. The growth in the range of responsibilities of the state thus ushered in an administrative age and an era of Administrative law. The development of Administrative law is an inevitable necessity of the modern times; a study of administrative law acquaints us with those rules according to which the administration is to be carried on. Administrative Law has been characterized as the most outstanding legal development of the 20th-century.
Administrative Law is that branch of the law, which is concerned, with the composition of powers, duties, rights and liabilities of the various organs of the Government. The rapid growth of administrative Law in modern times is the direct result of the growth of administrative powers. The ruling gospel of the 19th century was Laissez faire which manifested itself in the theories of individualism, individual enterprise and self help. The philosophy envisages minimum government control, maximum free enterprise and contractual freedom. The state was characterized as the law and order state and its role was conceived to be negative as its internal extended primarily to defending the country from external aggression, maintaining law and order within the country dispensing justice to its subjects and collecting a few taxes to finance these activities. It was era of free enterprise. The management of social and economic life was not regarded as government responsibility. But laissez faire doctrine resulted in human misery. It came to be realized that the bargaining position of every person was not equal and uncontrolled contractual freedom led to the exploitation of weaker sections by the stronger e. of the labour by the management in industries. On the one hand, slums, unhealthy and dangerous conditions of work, child labour wide spread poverty and exploitation of masses, but on the other hand, concentration of wealth in a few hands, became the order of the day. It came to be recognized that the state should take active interest in ameliorating the conditions of poor. This approach gave rise to the favoured state intervention in and social control and regulation of individual enterprise. The state started to act in the interests of social justice; it assumed a “ positive” role. In course of time, out of dogma of collectivism emerged the concept of “ Social Welfare State” which lays emphasis on the role of state as a vehicle of socio-economic regeneration and welfare of the people. Thus the growth of administrative law is to be attributed to a change of philosophy as to the
UNIT-I
ADMINISTRATIVE LAW
Need for the Administrative Law: Its Importance And Functions The emergence of the social welfare has affected the democracies very profoundly. It has led to state activism. There has occurred a phenomenal increase in the area of sate operation; it has taken over a number of functions, which were previously left to private enterprise. The state today pervades every aspect of human life. The functions of a modern state may broadly be placed into five categories, viz, the state as:- •= protector, •= provider, •= entrepreneur, •= economic controller and •= arbiter. Administration is the all-pervading feature of life today. The province of administration is wide and embrace following things within its ambit:- •= It makes policies, •= It provides leadership to the legislature, •= It executes and administers the law and •= It takes manifold decisions. •= It exercises today not only the traditional functions of administration, but other varied types of functions as well. •= It exercises legislative power and issues a plethora of rules, bye- laws and orders of a general nature. The advantage of the administrative process is that it could evolve new techniques, processes and instrumentalities, acquire expertise and specialization, to meet and handle new complex problems of modern society. Administration has become a highly complicated job needing a good deal of technical knowledge, expertise and know-how. Continuous experimentation and adjustment of detail has become an essential requisite of modern administration. If a certain rule is found to be unsuitable in practice, a new rule incorporating the lessons learned from experience has to be supplied. The Administration can change an unsuitable rule without much delay. Even if it is dealing with a problem case by case (as does a court), it could change its approach according to the exigency of the situation and the demands of justice. Such a flexibility of approach is not possible in the case of the legislative or the judicial process. Administration has assumed such an extensive, sprawling and varied character, that it is not now easy to define the term “ administration” or to evolve a general norm to identify an administrative body. It does not suffice to say that an administrative body is one, which administers, for the administration does not only put the law into effect, but does much more; it legislates and adjudicates. At times, administration is explained in a negative manner by saying that what does not fall within the purview of the legislature or the judiciary is administration. In such a context, a study of administrative law becomes of great significance. The increase in administrative functions has created a vast new complex of relations between the administration and the citizen. The modern administration impinges more and more on the individual; it has assumed a tremendous capacity to affect the rights and liberties of the people. There is not a moment of a person’s existence when he is not in contact with the administration in one-way or the other. This circumstance has posed certain basic and critical questions for us to consider: •= Does arming the administration with more and more powers keep in view the interests of the individual? •= Are adequate precautions being taken to ensure that the administrative agencies follow in discharging their functions such procedures as are reasonable, consistent with the rule of law, democratic values and natural justice? •= Has adequate control mechanism been developed so as to ensure that the administrative powers are kept within the bounds of law, and that it would not act as a power drunk creature, but would act
only after informing its own mind, weighing carefully the various issues involved and balancing the individual’s interest against the needs of social control? It has increasingly become important to control the administration, consistent with the efficiency, in such a way that it does not interfere with impunity with the rights of the individual. Between individual liberty and government, there is an age-old conflict the need for constantly adjusting the relationship between the government and the governed so that a proper balance may be evolved between private interest and public interest. it is the demand of prudence that when sweeping powers are conferred on administrative organs, effective control- mechanism be also evolved so as ensure that the officers do not use their powers in an undue manner or for an unwarranted purpose. It is the task of administrative law to ensure that the governmental functions are exercised according to law, on proper legal principles and according to rulesof reason and justice fairness to the individual concerned is also a value to be achieved along with efficient administration. The goal of administrative law is to redress this inequality to ensure that, so far as possible, the individual and the state are placed on a plane of equality before the bar of justice. In reality there is no antithesis between a strong government and controlling the exercise of administrative powers. Administrative powers are exercised by thousands of officials and affect millions of people Administrative efficiency cannot be the end-all of administrative powers. There is also the questions of protecting individual’s rights against bad administration will lead to good administration. A democracy will be no better than a mere façade if the rights of the people are infringed with impunity without proper redressed mechanism. This makes the study of administrative law important in every country. For India, however, it is of special significance because of the proclaimed objectives of the Indian polity to build up a socialistic pattern of society. This has generated administrative process, and hence administrative law, on a large scale. Administration in India is bound to multiply further and at a quick pace. If exercised properly, the vast powers of the administration may lead to the welfare state; but, if abused, they may lead to administrative despotism and a totalitarian state A careful and systematic study and development of administrative law becomes a desideratum as administrative law is an instrument of control of the exercise of administrative powers. II) Nature and Scope of Administrative Law- Nature - Administrative law is study of multifarious powers of administrative authorities and the nature of their power can be studies under the following three heads-
Nature and Definition of administrative Law Administrative Law is, in fact, the body of those which rules regulate and control the administration. Administrative Law is that branch of law that is concerned with the composition of power, duties, rights and liabilities of the various organs of the Government that are engaged in public administration. Under it, we study all those rules laws and procedures that are helpful in properly regulating and controlling the administrative machinery. There is a great divergence of opinion regarding the definition/conception of administrative law. The reason being that there has been
Legislative or Rule-Making.
Nature of Administrative Law ( Administrative authorities and the nature of their power )
Judicial or Purely Executive. Adjudicative
III) Scope – The province of Administrative law consists of the following-
IV) Growth of Administrative law in India- In India a system of both administrative legislation and adjudication were in existence from very early time. But in early British India, executive had the overriding powers in the matter of administration of justice During the British rule in India, the executive was invested with such wide powers to make rules as a modern democratic legislature cannot even imagine. In that period though the court had ample powers to set aside an administrative
Scope
Existence of various administrative bodies- such as, Wage-board, Central Board of Revenue, Commission of Inquiry and Advisory Boards, Tariff Commission, etc.
Rule making power of administrative agencies- i. delegated legislation; safeguard against abuse of power and judicial control.
Judicial functions of administrative agencies like Administrative tribunals- i., claims Tribunals Industrial Tribunal, the Income Tax Appellate Tribunal performing judicial functions.
Remedies- Various remedies like writs of Mandamus, Certiorari, Prohibition etc., injunction, declaration etc. are available to prevent excess any abuse of power.
Procedural guarantees- The concept of procedural guarantee include the rules of nature justice.
Government Liability- The Union and State Governments are liable under torts as well as control for the wrongs committed by their servant and agents.
Public Corporation- It includes liability ad legal responsibility of public corporation.
action, yet paid great respect and attention to their decisions. Judicial relief was available only when the administrative remedies were exhausted.
V) Sources of Administrative Law in India
VI) Is Administrative law inconsistent with Rule of Law? - Administrative law is not inconsistent with rules of law. Administrative law checks and controls the discretionary powers of administrative authorities.
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.” A careful perusal of the above makes it clear that Administrative Law deals with the following problems: A. Who are administrative authorities? B. What is the nature and powers exercised by administrative authorities? C. What are the limitations, if any, imposed on these powers? D. How the administration is kept restricted to its laminose? E. What is the procedure followed by the administrative authorities? F. What remedies are available to persons adversely affected by administration?
The Law Commission in its XI Vth Report has traced the reasons for the growth of administrative law in the following words- “Society in the 20th century has become exceedingly complex and governmental functions have multiplied. The change in the scope and character of the Government from negative to positive, that is, from the laissez faire to the public service state has resulted in the concentration of considerable power in the hands of the executive branch of Government.
Constitution
Sources of Administrative Law in India
Statutes
The administrative law and rule of law are not opposed to each other but on the other hand go parallel with a common objective of achieving an orderly government.
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. 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.
Rule of Law is a dynamic concept. It does not admit of being readily expressed. Hence, it is difficult to define it. Simply speaking, it means supremacy of law or predominance of law and essentially, it consists of values. The concept of the rule of Law is of old origin. Edward Coke is said to be the originator of this concept, when he said that the King must be under God and Law and thus vindicated the supremacy of law over the pretensions of the executives. Prof. A. Dicey later developed on this concept in the course of his lectures at the Oxford University. Dicey was an individualist; he wrote about the concept of the Rule of law at the end of the golden Victorian era of laissez-faire in England. That was the reason why Dicey’s concept of the Rule of law contemplated the absence of wide powers in the hands of government officials. According to him, wherever there is discretion there is room for arbitrariness. Further he attributed three meanings to Rule of Law. (1) The First meaning of the Rule of Law is that ‘no man is punishable or can lawfully be made to suffer in body or goods except for a distinct breach of law established in the ordinary legal manner before the ordinary courts of the land. (The view of Dicey, quoted by Garner in his Book on ‘Administrative Law’.) (2) The Second Meaning of the Rule of Law is that no man is above law. Every man whatever be his rank or condition. is subject to the ordinary law of the realm and amenable to the jurisdiction of the ordinary tribunals. (3) The Third meaning of the rule of law is that the general principle of the constitution are the result of judicial decisions determining the rights of private persons in particular cases brought before the court. The view of Dicey as to the meaning of the Rule of Law has been subject of much criticism. The whole criticism may be summed up as follows. Dicey has opposed the system of providing the discretionary power to the administration. In his opinion providing the discretionary power means creating the room for arbitrariness, which may create as serious threat to individual freedom. Now a days it has been clear that providing the discretion to the administration is inevitable. The opinion of the Dicey, thus, appears to be outdated as it restricts the Government action and fails to take note of the changed conception of the Government of the State. Dicey has failed to distinguish discretionary powers from the arbitrary powers. Arbitrary power may be taken as against the concept of Rule of Law. In modern times in all the countries including England,
I) Rule of Law- The term “The Rule of Law” is derived from the Latin phrase “La legalite”, which refers to a government based on principles of law and not of man. In this sense the concept of ‘la legalite’ was opposed to arbitrary powers. Edward Coke originated this concept when he said that the king must be under the God and Law and thus vindicated the supremacy of law over the pretensions of the executive.
RULE OF LAW
America and India, the discretionary powers are conferred on the Government. The present trend is that discretionary power is given to the Government or administrative authorities, but the statute which provides it to the Government or the administrative officers lays down some guidelines or principles according to which the discretionary power is to be exercised. The administrative law is much concerned with the control of the discretionary power of the administration. It is engaged in finding out the new ways and means of the control of the administrative discretion. According to Dicey the rule of law requires that every person should be subject to the ordinary courts of the country. Dicey has claimed that there is no separate law and separate court for the trial of the Government servants in England. He critcised the system of droit administratif prevailing in France. In France there are two types of courts Administrative Court and Ordinary Civil Courts. The disputes between the citizens and the Administration are decided by the Administrative courts while the other cases, (i. the disputes between the citizens) are decided by the Civil Court. Dicey was very critical to the separation for deciding the disputes between the administration and the citizens. According to Dicey the Rule of Law requires equal subjection of all persons to the ordinary law of the country and absence of special privileges for person including the administrative authority. This proportion of Dicey does not appear to be correct even in England. Several persons enjoy some privileges and immunities. For example, Judges enjoy immunities from suit in respect of their acts done in discharge of their official function. Besides, Public Authorities Protection Act, 1893, has provided special protection to the official. Foreign diplomats enjoy immunity before the Court. Further, the rules of ‘public interest privilege may afford officials some protection against orders for discovery of documents in litigation.’ Thus, the meaning of rule of law taken by Dicey cannot be taken to be completely satisfactory. Third meaning given to the rule of law by Dicey that the constitution is the result of judicial decisions determining the rights of private persons in particular cases brought before the Courts is based on the peculiar character of the Constitution of Great Britain. In spite of the above shortcomings in the definition of rule of law by Dicey, he must be praised for drawing the attention of the scholars and authorities towards the need of controlling the discretionary powers of the administration. He developed a philosophy to control the Government and Officers and to keep them within their powers. The rule of law established by him requires that every action of the administration must be backed by law or must have been done in accordance with law. The role of Dicey in the development and establishment of the concept of fair justice cannot be denied. 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.
II) Basic Principles of the Rule of Law •= Law is Supreme, above everything and every one. No body 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
excluding arbitrary official action in the sphere..... The provisions of the Constitution were enacted with a view to ensure the rule of law.
VI) Modern concept of Rule of Law is formulated by International Commission of Jurists-
VII) Conclusion- The above discussion clearly shows that the recent judgments of the Highest Court of India as well as High Courts exhibit a new approach to the concept o rule of law by emphasizing the fair play and justice in every walk of administrative action and access to judicial remedies for all including socially and economically weaker sections of the society.
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The concept of Rule of Law formulated by International Commission of Jurists may be regarded as modern concept because it is in consonance with the need of Rule of Law in a modern welfare society. This concept is also known as Delhi Declaration 1959. It was later on confirmed as Lagos in 1961. The commission divided itself into certain working committees.
In executive
Rule of Law
In Criminal procedure
In legislation In Judiciary
The doctrine of Separation of Powers is of ancient origin. The history of the origin of the doctrine is traceable to Aristotle. In the 16th and 17th Centuries, French philosopher John Boding and British Politician Locke respectively had expounded the doctrine of separation of powers. But it was Montesquieu, French jurist, who for the first time gave it a systematic and scientific formulation in his book ‘Esprit des Lois’ (The spirit of the laws).
Montesquieu’s view Montesquieu said that if the Executive and the Legislature are the same person or body of persons, there would be a danger of the Legislature enacting oppressive laws which the executive will administer to attain its own ends, for laws to be enforced by the same body that enacts them result in arbitrary rule and makes the judge a legislator rather than an interpreter of law. If one person or body of persons could exercise both the executive and judicial powers in the same matter, there would be arbitrary powers, which would amount to complete tyranny, if the legislative power would be added to the power of that person. The value of the doctrine lies in the fact that it seeks to preserve human liberty by avoiding the concentration of powers in one person or body of persons. The different organs of government should thus be prevented from encroaching on the province of the other organ. This theory has had different application in France, USA and England. In France, it resulted in the rejection of the power of the courts to review acts of the legislature or the executive. The existence of separate administrative courts to adjudicate disputes between the citizen and the administration owes its origin to the theory of separating of powers. The principle was categorically adopted in the making of the Constitution of the United States of America. There, the executive power is vested in the president. Article the legislative power in congress and the judicial power in the Supreme Court and the courts subordinates thereto. The President is not a member of the Congress. He appoints his secretaries on the basis not of their party loyalty but loyalty to himself. His tenure does not depend upon the confidence of the Congress in him. He cannot be removed except by impeachment, However, the United States constitution makes departure from the theory of strict separation of powers in this that there is provision for judicial review and the supremacy of the ordinary courts over the administrative courts or tribunals.
In the British Constitution the Parliament is the Supreme legislative authority. At the same time, it has full control over the Executive. The harmony between the Legislator and the (Executive) is secured through the Cabinet. The Cabinet is collectively responsible to the Parliament. The Prime Minister is the head of the party in majority and is the Chief Executive authority. He forms the Cabinet. The Legislature and the Executive are not quite separate and independent in England, so far as the Judiciary is concerned its independence has been secured by the Act for Settlement of 1701 which provides that the judges hold their office during good behaviour, and are liable to be removed on a presentation of addresses by both the Houses of Parliament. They enjoy complete immunity in regard to judicial acts. I) Doctrine of Separation of Powers- The doctrine of separation of power can be traced to Aristotle. But it was formulated for the first time by the French jurist, Montesquieu, In India, we have three organs to function properly as below - i) Executive = to implement the law ii) Judiciary = to interpret the law iii) Legislature = to make the law
Separation of power means all this three organs should not interfere in the working of each other.
DOCTRINE OF SEPARATION OF POWERS
In India , the executive is part of the legislature. The President is the head of the executive and acts on the advice of the Council of Ministers. Article 53 and 74 (1) He can be impeached by Parliament. Article 56 (1) (b) read with Art 61, Constitution. The Council of Ministers is collectively responsible to the Lok Sabha Article 75 (3) and each minister works during the pleasure of the President. Article 75 (2) If the Council of Ministers lose the confidence of the House, it has to resign. Functionally, the President’s or the Governor’s assent is required for all legislations. (Articles 111, and Art 368). The President or the Governor has power of making ordinances when both Houses of the legislature are not in session. (Articles 123 and 212). This is legislative power, and an ordinance has the same status as that of a law of the legislature. ( AK Roy v Union of India AIR 1982 SC 710) The President or the Governor has the power to grant pardon (Articles 72 and 161) The legislature performs judicial function while committing for contempt those who defy its orders or commit breach of privilege (Articles 105 (3) 194 (3) Thus, the executive is dependent on the Legislature and while it performs some legislative functions such as subordinate it, also performs some executive functions such as those required for maintaining order in the house. There is, however, considerable institutional separation between the judiciary and the other organs of the government. ( See Art 50) The Judges of the Supreme Court are appointed by the President in consultation with the Chief justice of India and such of the judges of the supreme Court and the High Courts as he may deem necessary for the purpose. (Article 124 (2)) The Judges of the High Court are appointed by the President after consultation with the Chief Justice of India, the Governor of the state, and, in the case of appointment of a judge other than the Chief justice, the Chief Justice of the High Court( Article 217 (1).) It has now been held that in making such appointments, the opinion of the Chief justice of India shall have primacy. (Supreme Court Advocates on Record Association.) The judges of the high Court and the judges of the Supreme Court cannot be removed except for misconduct or incapacity and unless an address supported by two thirds of the members and absolute majority of the total membership of the House is passed in each House of Parliament and presented to the President Article 124 (3) An impeachment motion was brought against a judge of the Supreme court, Justice Ramaswami, but it failed to receive the support of the prescribed number of members of Parliament. The salaries payable to the judges are provided in the Constitution or can be laid down by a law made by Parliament. Article 125 (1) and Art 221 (1). Every judge shall be entitled to such privileges and allowances and to such rights in respect of absence and pension, as may from time to time be determined by or under any law made by Parliament and until so determined, to such privileges, allowance and rights as are specified in the Second Schedule. Neither the privileges nor the allowance nor his rights in respect of leave of absence or pension shall be varied to his disadvantage after his appointment. Appointments of persons to be, and the posting and promotion of, district judges in any state shall be made by the Governor of the State in consultation with the High Court exercising jurisdiction in relation to such state (Article 233). The control over the subordinate courts is vested in the acts of the Legislature as well as the executive. The Supreme Court has power to make rules (Article 145) and exercises administrative control over its staff. The judiciary has power to enforce and interpret laws and if they are found in violation of any provision of the Constitution, it can declare them unconstitutional and therefore, void. It can declare the executive action void if it is found against any provisions of the Constitution. Article 50 provides that the State shall take steps to separate the judiciary from the executive. Thus, the three organs of the Government (i. the Executive, the Legislature and the Judiciary) are not separate. Actually the complete demarcation of the functions of these organs of the Government is not possible.
V) Case Laws –
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For reference – i) Delhi Laws Act, 1951 ii) Rama Javaya Vs. State of Punjab, 1955 iii) Ramkrishna Dalmiya Vs. Justice Tendulkar, 1959 iv) Indira Gandhi Vs. Rajnarayan Singh, 1973
III) THE SYSTEM OF DROIT ADMINISTRATIF according to Dicey, is based on the following two ordinary principles which are alien to English law— Firstly, that the government and every servant of the government possess, as representative of the nation, a whole body of special rights, privileges or prerogatives as against private citizens, and the extent of rights, privileges or considerations which fix the legal rights and duties of one citizen towards another. An individual in his dealings with the State does not, according to French law; stand on the same footing as that on which he stands in dealing with his neighbor. Secondly, that the government and its officials should be independent of and free from the jurisdiction of ordinary courts. It was on the basis of these two principles that Dicey observed that Droit Administratif is opposed to rule of law and, therefore, administrative law is alien to English system. But this conclusion of Dicey was misconceived. Droit Administratif , that is, administrative law was as much there in England as it was in France but with a difference that the French Droit Administratif was based on a system, which was unknown to English law. In his later days after examining the things closely, Dicey seems to have perceptibly modified his stand. Despite its overall superiority, the French administrative law cannot be characterized with perfection. Its glories have been marked by the persistent slowness in the judicial reviews at the administrative courts and by the difficulties of ensuring the execution of its last judgment. Moreover, judicial control is the only one method of controlling administrative action in French Administrative law, whereas, in England, a vigilant public opinion, a watchful Parliament, a self- disciplined civil service and the jurisdiction of administrative process serve as the additional modes of control over administrative action. By contrast, it has to be conceded that the French system still excels its counterpart in the common law countries of the world.
IV) CLASSIFICATION OF ADMINISTRATIVE ACTION Administrative action is a comprehensive term and defies exact definition. In modern times the administrative process is a by-product of intensive form of government and cuts across the traditional classification of governmental powers and combines into one all the powers, which were traditionally exercised by three different organs of the State. Therefore, there is general agreement among the writers on administrative law that any attempt of classifying administrative functions or any conceptual basis is not only impossible but also futile. Even then a student of administrative law is compelled to delve into field of classification because the present-day law especially relating to judicial review freely employs conceptual classification of administrative action. Thus, speaking generally, an administrative action can be classified into four categories: i) Rule-making action or quasi-legislative action. ii) Rule-decision action or quasi-judicial action. iii) Rule-application action or administrative action. iv) Ministerial action i) Rule-making action or quasi-legislative action – 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, prospectivity 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, retroactive and based on evidence.
(ii) Rule-decision action or quasi-judicial action – 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: 1. Disciplinary proceedings against students. 2. Disciplinary proceedings against an employee for misconduct. 3. Confiscation of goods under the sea Customs Act, 1878. 4. Cancellation, suspension, revocation or refusal to renew license or permit by licensing authority. 5. Determination of citizenship. 6. Determination of statutory disputes. 7. Power to continue the detention or seizure of goods beyond a particular period. 8. Refusal to grant ‘no objection certificate’ under the Bombay Cinemas (Regulations) Act, 1953. 9. Forfeiture of pensions and gratuity. 10. Authority granting or refusing permission for retrenchment. 11. Grant of permit by Regional Transport Authority. Attributes of administrative decision-making action or quasi-judicial action and the distinction between judicial, quasi-judicial and administrative action.
(iii) Rule-application action or administrative action – Though the distinction between quasi- judicial and administrative action has become blurred, yet it does not mean that there is no distinction between the two. If two persons are wearing a similar coat, it does not mean that there is no difference between them. The difference between quasi-judicial and administrative action may not be of much practical consequence today but it may still be relevant in determining the measure of natural justice applicable in a given situation. In A. 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 justice must always be observed depending on the fact situation of each case. No exhaustive list of such actions may be drawn; however, a few may 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 LAW - notes
Course: BA LLB (HONS.)
University: Dr. Ram Manohar Lohiya National Law University
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