INTRODUTION NATURE AND SCOPE OF ADMINSTRATIVE LAW INTRODUCTION: ‘Administrative law deals with the authorities’ powers, the way these powers are exercised, and the remedies accessible to the aggrieved individuals when these authorities abuse these powers. ‘Administrative law isa part of Constitutional law and all administrative law concerns are also constitutional law concerns. 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. 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, 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 cannot be transformed into arbitrary powers DEFINITIONS: . Ivor Jennings in his “The Jaw 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 low relating to the administration. It determines the organization, powers, and duties of administrative authorities’. 2. 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”. 3. 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 thse powers by these authorities. It controls these administrative authorities by judicial and other means. PENSOURCES OF ADMIN LAW: Constitution of india ‘The constitution of India is the supreme governing body. We observe that there are various areas such as the fundamental rights, writs, directive principles of state policy, executive, legislative and judiciary, position of members of union public commission, tribunals etc., which form the basis of rulemaking, ‘Acts and Statutes We see that there are various laws such as Companies Law, Contracts Act, Administrative Tribunal Act, ‘Ombudsman Act, Lokpal, and Lokayukta Act which acts as a source of legislation. Ordinances When the parliament is not in session, the executive branch under Article 123 and 213 is given the permission to make the ordinances. Judicial Decisions The landmark judgements such as Puttaswamy case related to privacy, Maneka Gandhi vs Union of India related to right to travel abroad, Vishakha vs State of Rajasthan related to the prevention of sexual harassment of women at workplace, MC Mehta vs Union of India related to the control of the environmental pollution, PUCL vs UO! related to the rights of workers who are working in mines form the basis of the establishment of the ‘tests’ which may be used to clarify the scope of the provisions of the law and its interpretation. This includes the ‘Right to Food’ as well NATURE AND SCOPE OF ADMIN LAW: * Not a codified Law: Administrative law is not codified like the IPC or law of the contracts. It is based on the constitution, + Judge made law: It is essentially a judge made law and it is a branch of public law which deals with the constitution and delegation of power. + Deals with the organization: Administrative Law deals with organization and powers of the administrative and quast-administrative authorities. * Concerned with the official actions: Administrative Law is primarily concerned with the official action and the procedure by which official action is reached. Example: Rule Making, Rule Application, Monitoring actions or pure administration. * Control Mechanism: it includes control mechanism (judicial review) by which the administrative authorities are kept within bounds and made effective, * Authorities: Administrative law is derived from the authorities from the constitutional and statutory law. * Rights: Administrative Law relates to the individual rights as well as public needs and ensures ‘transparency, open and honest governance which is more people friendly. ‘+ Means or the End: The study of the administrative law is not an end in itself, but itis a means. + Emergence and development: Administrative law emerges and develops wherever and whenever any person becomes the victim of the arbitrary exercise of the public power. Administrative law rot the branch of the philosophy of law, but of sociology of law.* Branches which govern: itis the body of law which governs the activities of the administrative authorities of the government. Government agency action includes rule making, rule adjudication, enforcement of specific regulations and the related agenda, ADMIN PATTERNS IN DIFF COUNTRIES: FRANCE ~ DROIT ADMINSTRATION: Droit Administrative lays down the obligations of public administrative organs along with which it helps in regulating the administrative relations between the State and its citizens, The body which is structured with the rules brought in by the administrative courts is attached to the name of Napoleon Bonaparte. The ‘two bodies that overtook authority from one another during the pre- and post-revolutionary France were then recognized as the Conseil du Roi and Conseil d ‘Etat respectively Conseil du Roi was the product of pre-revolutionary France. This body acted as an advisor in legal and administrative subjects for the King. Along with the executive function, Conseil du Roi also performed judicial activities which included settling disputes between the nobles of the nation. It was in the 16th century that the judiciary was slowly being overshadowed by the growing power of the executive in form of the Conseil du Roi. The revolutionary change that was brought about during the post-revolution is the restriction of power confined in the hands of the executive. Such change was regulated by the concept of separation of power. This subsequently resulted in the abolition of the Conseil du Roi under the governance of Napoleon Bonaparte who was a supporter of reforms and freedom on part of administrative actions. it was this thought that gave birth to Conseil d ‘Etat in 1799 with an objective to eliminate difficulties in administrative courses. In the course of time, Conseil d ‘Etat started looking after judicial matters as well. The jurisdiction of the Conseil d ‘Etat was decided to be final in all administrative matters by the Arrents Blanco which was the executive law during 1873. It was decided that if any conflict would have arisen between the ordinary courts and that of the administrative courts, the same was supposed to be settled by the Tribunal des Conflicts which was presided over by the Ministry of Justice and involved an equal number of judges from both courts. Characteristics: 1. The matters that are associated with the State and administration-oriented litigation are to be decided by the administrative courts and not by the ordinary courts of the land. 2. While deciding matters concerning litigation as mentioned above, the rules that are applied in the same are developed from the courts itself. 3. The deciding agency in matters of jurisdiction conflicts between the two courts, namely the administrative and ordinary, i known as Tribunal des Conflicts. 4, The Droit Administrative acts as a safeguard for the government officials from the authority of the ordinary courts.5. The development of Conseil d ‘Etat is not a one-day plan but the product of a long going process surrounding the French Revolution. It played the role of both a consulting and an adjudicating body. Rules of droit administration: Droit Administratif is a representation of judge-made rules decided in a court of law and not of the rules carved out from the French Parliament. The series of rules that, if compiled together, will result in the Droit Administratif are as follows Rules that deal with administrative authorities and officials associated with the same, 2. Rules that deal with public service operations to fulfil citizens’ needs. 3. Rules that deal with adi istrative adjudication. While the first rule applies to appointment, removal, allowances, obligations, the second rule was made to focus on the welfare of the public which was to be operated directly by the public officials or could have been delegated by them and carried out under their authority. The third rule makes it clear that the highest administrative court in the land is Conseil d ‘Etat INDIA: ‘Administrative law in India can be traced back to ancient history times. The Maurya and the Gupta dynasties of Ancient India had centralized administrative system. Following this, came the Mughals who had somewhat similar administrative system. The kings in the anterior period of history were mostly concerned majorly about three things- + Protecting the state from external aggression + Maintaining law and order and order + Collecting taxes. With the arrival of the British in india, there was the advent of modern administrative law. Establishment of East India Company increased the government's powers manifold. Several Acts, legislatures and statutes were brought by the British Parliament for regulating public safety, health, morality, transport and labor relations. In many statutes, provisions were made vis-a-vis granting of permits and licenses and settlement of disputes by administrative authorities and tribunals. During the Second World War, the executive powers Increased manifold by virtue of Defense of India Act. In addition to this, the government issued many orders and ordinances, covering several matters by way of administrative instructions. Post independence, India adopted a welfare state approach, which in turn increased state activities. With increase in power and activity of the Government and administrative authorities increased so did the need for ‘Rule of Law’ and ‘Judicial Review of State actions. The philosophy of a welfare state became specifically ‘embodied in the Constitution of India. In the Constitution itself, provisions were made to secure to all citizens social, economic, and political justice, equality of status and opportunity. The ownership andcontrol of material resources of the society should be so distributed as best to sub-serve the common good. RULE OF LAW: Albert Venn Dicey, a Britain-based constitutional juris, is given the credit for propounding the concept of rule of law which was originally introduced by Sir Edward Coke. In 1885, Dicey in his book - ‘The Law of the Constitution’ enumerated the concept of Rule of Law which made a differentiation between the law of administration and the rule of law. The rule of law advocates the supremacy of law. AV Dicey proposed three postulates of Rule of Law, which are as follows: 1. Supremacy of Law 2. Equality before the Law 3. The predominance of legal spirit Supremacy of law: It is the first postulate of Dicey’s theory of rule of law. It indicates that the law is supreme over all individuals. It also includes the individuals who are making, administering, or executing the laws. As per the words of Dicey, the rule of law is constituted by absolute supremacy of the laws in contrast to the tyrannical power exercised by the government. In brief, an individual must only be penalized for a specific violation of the laws, and not for something else. The individual must not be prosecuted by the state just on the ground of its unilateral arbitrary will. One can only be punished in accordance with established legislation. Equality before law: The second postulate of Dicey's theory of Rule of Law is Equality before law. It states that every individual, regardless of status or rank, is subject to ordinary laws of the land as well as the jurisdiction of the ordinary court, not any special court. All the special courts offering competence under special laws, in his opinion, are a danger to the values of equality. Asa result, he believes that all individuals should be governed under tthe same code of norms and values and be legally challenged by the very same civil courts, Predominance of legal spi The third postulate of Dicey’s theory of Rule of Law is the predominance of legal spirit. As per Dicey, for the rule of law to prevail, there must be an enforcement institution, which he recognised in the court system. He felt that because the courts are the actual enforcers of the rule of law, they should be devoid of bias and extraneous intervention. The autonomy of the judicial system is thus a critical component for the functioning of the rule of law. He claimed that the institutions of law, rather than the codified constitution, are the supreme guardians for the protection of the fundamental rights of the individuals. Criticisms: © Wade and Forsyth argue that even in England, there was no absolute equality of law since the ‘Monarch was granted several exemptions under the doctrine of Rex Non-Potest Peccare which stated that ‘The King can do no wrong as he is a son of God, and he cannot be prosecuted.‘* William Paton stated that the constitution of the United Kingdom was the consequence of political struggle rather than logical inferences from the Rule of Law. * Ivor Jennings challenged each of Dicey’s three proposed postulates of the Rule of Law which he mentioned in his book. Basic principles of rule of law: * Supremacy of Law. Law is above everyone irrespective of an individual's rank, status, or position. + Whims and Fancies play no role in a state where rule of law prevails. All the actions of the legislature and the executive are held in accordance with laws. + No person shall suffer due to the arbitrariness of another. One can be punished only by the procedure established by law and for the violation of such law. * The absence of arbitrariness and discretionary decision-making is the heart and soul of the Rule of Law. * The rule of law entails equality before the law and equal protection of the law. ‘+ Law provides protection and justice against any tyrannical action taken by the executive. The judiciary is the preserver as well as the protector of the rule of law. It is meant to be independent and free from biases. DOCTRINE OF SEPERATION OF POWERS: The concept of separation of powers is the rudimentary element for the governance of a democratic country. This principle corroborates fairness, impartiality, and uprightness in the workings of @ government. The concept of separation of powers refers to a system of government in which the powers are divided among multiple branches of the government, each branch controlling different facet of government. In most of the democratic countries, itis accepted that the three branches are the legislature, the executive, and the judiciary. According to this theory, the powers and the functions of these branches must be distinct and separated in a free democracy. ‘These organs work and perform their functions independently without the interference of one into others to avoid any kind of conflict. It means that the executive cannot exercise legislative and judicial powers, tthe legislature cannot exercise executive and judicial powers and the judiciary cannot exercise legislative and executive powers. Objectives of separation of powers: + Firstly, it aims to eliminate arbitrariness, totalitarianism and tyranny and promote an accountable and democratic form of government. * Secondly, it prevents the misuse of powers within the different organs of the government. The Indian Constitution provides certain limits and boundaries for each domain of the government, and they are supposed to perform their function within such limits. ‘+ Thirdly, it keeps a check on all the branches of the government by making them accountable for themselves. * Fourthly, separation of powers maintains a balance among the three organs of government by dividing the powers among them, + Fifthly, this principle allows all the branches to specialize themselves in their respective field.Elements of doctrine of separation of powers: 1. Legislative: ‘The legislative organ of the government is also known as the rule-making body. The primary function of the legislature is to make laws for good governance of a state. It has the authority of amending the existing rules and regulations as well Executive: This branch of government is responsible for governing the state. The executives mainly implement and enforce the laws made by the legislature, 3. Judi Judiciary plays a very crucial role in any state. It interprets and applies the laws made by the legislature and safeguards the rights of the individuals. Indian constitution and separation of powers: Like the United Kingdom, India also practices the parliamentary form of government in which executive and legislature are linked to each other. So, the doctrine of separation of powers is not implemented in its strict sense. However, the composition of our constitution creates no doubt that the Indian Constitution is bound by the separation of powers. Provisions: + Article 53(1) and Article 154 of the indian Constitution clearly say that the Executive powers of ‘the Union and the States are vest in the President and Governor respectively and shall only be exercised directly by him or through his subordinate officers. * Article 122 and Article 212 of the Indian Constitution state that the courts cannot inquire in the proceedings of Parliament and the State Legislature. This ensures that there will be no interference of the judiciary in the legislature. * Article 105 and Article 194 of the Indian Constitution specify that the MPs and MLAs cannot be called by the court for whatever they speak in the session. ‘+ Article 50 of the indian Constitution encourages the separation of judiciary from the executive in the states. + Article 245 of the indian Constitution gives authority to Parliament and State Legislature for ‘making laws for the whole country and the states respectively. + Article 121 and Article 212 of the Indian Constitution state that the judicial conduct of any judge of the Supreme Court or High Court shall not be discussed in Parliament or State Legislature. * Article 361 of the Indian Constitution specifies that the President and the Governor are not accountable to any court for exercising their powers and performance of duties in his office. Judicial approach towards separation of powers in India: The court has interpreted the applicability of the doctrine of separation of power in India in many case laws. + The very first judgment with relation to the separation of powers was given by Mukherjee J. in the case of Ram Jawaya Kapur v. State of Punjab. He concluded that- “The Constitution of india has not acknowledged the doctrine of separation of power emphatically but the functions and powers of all the organs have been adequately distinguished.+ Inthe case of Indira Nehru Gandhi v. Raj Narain, Ray C.J. said: ~ “A rigid sense of separation of powers which has been given under the American and Australian constitution does not apply to india.” + In Golak Nath v. State of Punjab, it was observed by Subba Rao C.J. that: - “The three organs of the government must exercise their functions keeping in mind certain encroachments ‘assigned by the constitution. The constitution demarcates the jurisdiction of the three organs minutely and expects them to be exercised within their respective powers without overstepping their limits ‘+ Das J. talked about separation of powers in the case of A. K. Gopalan v. State of Madras: - “Although the constitution has imposed some limitations on the three organs ofthe government, it has left our parliament and state legislature supreme in their respective fields. Criticisms: + Itis extraordinarily difficult to distinguish the powers of the legislature, executive and judiciary precisely. A smooth and stable government can exist only if there is cooperation among the three organs. + If this concept is adopted in its totality, then it will become impossible to take certain actions. Consequently, neither the legislature can delegate the law-making power to the executive which may have expertise in the subject matter, nor the courts can make laws related to the functioning of courts and proceedings. + Montesquieu, by propounding this theory aimed to protect and safeguard the freedom and liberty of the individuals which is impossible by the strict enforcement of separation of powers. CLASSIFICATION OF ADMINSTRATIVE ACTION: Administrative action administrative action administrative action administrative action Administrative action Administrative action Administrative action Administrative action Administrative action. 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. 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. it) Rule-application action or administrative action. iv) Ministerial action 1, 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 Ill 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 @ 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, itis known as the rule-making action of the administration or quasi legislative action, Rule decision action or quasi-judicial action: Administrative decision-making may be defined, as 2 power to perform acts administrative in character, but requiring incidentally some characteristics of judicial traditions. Based on 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 citizens! 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. 120, Authority granting or refusing permission for retrenchment. 11, Grant of permit by Regional Transport Authority. Rule application action or administrative actior 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. Administrative action may be statutory, having the force of law, or non-statutory, devoid of such legal force. The bulk of the administrative action is statutory because a statute or the Constitution gives it a legal force but in some cases it may be non-statutory, such as issuing directions to subordinates not having the force of law, but its violation may beVisited with disciplinary action. Though by and large administrative action is discretionary and is based on subjective satisfaction, however, the administrative authority must act fairly, impartially, and reasonable. In AK. Kraipak v. Union of India, the Court was of the view that 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.