COMPARATIVE STUDY ON INDIAN ADMINISTRATIVE LAW AND BRITISH

ADMINISTRATIVE LAW

Introduction:

Administrative law” may means two different things namely, (a) law relating to
administration and (b) law made by administration. The latter would itself be of two kinds.
Firstly, it may be rules, regulations, orders, schemes, bye-laws etc., made by the administrative
authorities on whom power to make such subordinate legislation is conferred by a statute.
Secondly, certain administrative authorities have power to decide questions of law and or fact
affecting particular persons generally, i.e., adjudication. Most of such powers are exercised
quasi-judicially. Such decisions apply a statute or administrative policy and instructions to
specific cases. In doing so they create a body of administrative law.
Administration is government or an agency of government. Under the constitution of India
the powers of the state are divided between the union and states. Both the union and states are
divided into three great departments, namely, (1) the executive (2) the legislature (3) the
judiciary.
Administrative powers are exercised by the executive in either of two ways. It may act in
exercise of the executive power of the Union or of a state or it may act under the authority of a
specific statute or subordinate legislation. The exercise of administrative powers is subject to the
rule of law. The legal control may be exercised by three authorities, namely, (1) the legislature
(2) the higher executive (3) the judiciary. Administrative law concerns itself mainly with the
legal control of the government or of administrative authorities by the courts [1]

Growth and development of Indian administrative law:

Administrative law was existent in India even in ancient times. Under the Maurya's and
Guptas, several centuries before Christ, there was well organised and centralise administration in
India. The rule of "dharma” was observed by kings and administrator's and nobody claimed any
exemption from it. The basic principle of natural justice and fair play were followed by the kings
and officer as the administration could be run only on those principles accepted by dharma which
was even a wider word than "rule of law” or "due process of law", yet, there was no
administrative law is existence in the sense in which we study in today. Therefore the evolution
of administrative law in India can be divided into three phases:

I. 1850-1900

The establishment of East India Company and British rule in India the power of government
increased. Many acts, statutes, legislations were passed by British government to regulate labour
relations, safety, health, morality and transport. Delegated legislation was accepted by the

[1] http://14.139.60.114:8080/jspui/bitstream/123456789/738/15/Administrative%20Law.pdf
Northern India canal and Drainage Act, 1873 and the Opium Act, 1878. Proper and effective
steps were taken to regulate the trade and traffic in explosives Act, 1884. Many statutes and
provisions were made regarding the holding of permits and licenses and for the settlement of
disputes by the administrative authorities and tribunals [2]

II. 1900-1947

In the 20th century, social and economic policies of the government had significant impact on
private rights of citizens. Government looked upon the subjects such as housing employment,
planning, education, health, service, pension, manufacture of goods. Traditional legislative s and
judicial system could not effectively solve these problems and thus gave rise to delegated
legislation as well as tribunalisation.

During the Second World War, there was a tremendous surge in the scope of executive
power. The defence of India Act, 1939 and rules made there under conferred ample
powers on the executive to interfere with life, liberty and property of an individual with less
or no judicial control. The government issued many orders and ordinance's covering several
matters by way of administrative instructions.

III. 1947-onwards

Since the independence the activities and the functions of the government have further increased.
The philosophy of a welfare state has been specifically embodied in the Indian Constitution. In
the Constitution itself provisions are there to secure social, economic, and political justice,
equality of status and opportunity to all citizens. The ownership and control of material resources
of the society should be so distributed as to best sub serve the common good. The operation of
the economic system should not result in the concentration of wealth and means of production
with a few .For the implementation of all these objects, the state is vested with the power to
impose reasonable restrictions even on the fundamental rights guaranteed by the Constitution. To
secure these objects, several acts have been passed by the parliament, such as:

The industrial development and regulation act, 1956;

The maternity benefit act, 1961;

The payment of bonus Act, 1965;

The banking companies (Acquisition and transfer of undertakings) Act, 1969;

The equal Remuneration Act, 1976;

The urban land (ceiling and regulation) Act, 1976;

[2]. kalyan-city.blogspot.in/2010/10/growth-and-development-of.html
Even while interpreting all these acts and provisions of the Constitution, the judiciary started
taking into consideration the objects and ideals of social welfare.

In Joseph kuruvilla vellukunnel v. RBI, [3] the supreme court held that under the banking
companies act, 1949, the reserve Bank of India was the sole judge to decide whether the affairs
of a banking company were being conducted in a manner prejudicial to the depositors interest
and the court had no option but to pass an order of winding up as prayed by the Reserve bank.

In Gujarat v. M.I. Haider Bux Imam Razci,[4] the Supreme Court held that under the
provisions of the land acquisition act, 1984, ordinarily, the government is the best authority
to decide whether a particular Purpose is public purpose and whether the land can be
acquired for that Purpose not.

In Raja Ram pal v. Speaker,Lok Sabha,[5] the supreme court held that if a member of
parliament is found guilty by the house of improper conduct and is expelled , a court of
would not interfere with such action.

Now that the activities and powers of the government and administrative authorities have
increased, there is a greater need for the enforcement of the rule of law and judicial review
over these powers, so that the citizens are free to enjoy the liberty guaranteed to them by the
Constitution. Remedies as right appeal, revision, etc. Are given under Article 32, 136, 226,
and 227 of the Indian Constitution. Orders passed by the administrative authorities can be
quashed and set aside if they are malafide, or against the provisions of the Constitution. If the
rules, regulations or orders passed by these authorities are not within their powers, they can
be declared ultra vires, unconstitutional, illegal or void. Principle of judicial review is held to
be part of "basic structure" of our Constitution.

Rule of law in England

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 [6]

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.V. Dicey later developed on this concept in the course of his lectures at the
Oxford University.; 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.

[3].AIR 1962 SC 137

[4].AIR 1977 SC 594
[5]. AIR 2007 SC 184
[6]. https;//www.lse.ac.uk/law/working-paper-series/2007-08/WPS12-2007PooleN2.pdf
(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[7]

(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 principles of the constitution are the
Result of judicial decisions determining the rights of private persons in particular cases brought
before the court [8]

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, 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 criticized the system of droit administratiff
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.e. 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.

[7]. The view of dicey, quoted by Garner in his Book on Administrative Law
[8] View of Dicey, quoted by Garner in his Book on Administrative Law, p.11
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.

Rule of Law and Indian Constitution

In India the Constitution is supreme. The preamble of our Constitution clearly sets out the
principle of rule of law. It is sometimes said that planning and welfare schemes essentially strike
at rule of law because they affect the individual freedoms and liberty in many ways. But rule of
law plays an effective role by emphasizing upon fair play and greater accountability of the
administration. It lays greater emphasis upon the principles of natural justice and the rule of
speaking order in administrative process in order to eliminate administrative arbitrariness.

In S.G. Jaisinghani V. Union of India and others, the Supreme Court portrayed the essentials
of rule of law in a very lucid manner. It observed: ' The absence of arbitrary power is the first
essential of the rule of law upon which our whole constitutional system is based. In a system
governed by rule of law, discretion when conferred upon executive authorities must be continued
within clearly defined limits. The rule of law from this points of view means that decisions
should be made by the application of known principles and rules. If a decision is taken without
any principle or without any rule it is unpredictable and such a decision is antithesis of a decision
taken in accordance with the rule of law.
The Supreme Court in a case, namely, Supreme Court Advocates on Record Association V.
Union of India, reiterated that absence of arbitrariness is one of the essentials of rule of law. The
Court observed. 'For the rule of law to be realistic there has to be rooms for discretionary
authority within the operation of rule of law even though it has to be reduced to the minimum
extent necessary for proper, governance, and within the area of discretionary authority, the
existence of proper guidelines or norms of general application excludes any arbitrary exercise of
discretionary authority. In such a situation, the exercise of discretionary authority in its
application to individuals, according to proper guidelines and norms, further reduces the area of
discretion, but to that extent discretionary authority has to be given to make the system workable.

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 - 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. 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.

ii) Rule-decision action or quasi-judicial action - Today the bulk of the decisions which affect
private individual come not from courts but from administrative agencies exercising ad judicator
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

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.K. Kraipak v. Union of India[9], 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.

A provision in a statute which gives an express power to the Executive to amend or repeal any
existing law is described in England as Henry viii Clause because the King came to exercise
power to repeal Parliamentary laws. The said clause has fallen into disuse in England, but in
India some traces of it are found here and there, for example, Article 372 of the Constitution
authorizes the president of India to adopt pro Constitutional laws, and if necessary, to make such
adaptations and modifications, so as to bring them in accord with the provisions of the
Constitution. The State Reorganization Act, 1956 and some other Acts similar thereto also
contain such a provision. So long as the modification of a provision of statute by the Executive is
innocuous and immaterial and does not affect any essential change in the matter.

In W.B. Electricity Board V. Ghosh[10], the Regulation of removal of permanent employee

with 3 months’ notice or pay in lieu thereof was held arbitrary &void, such a Henry viii clause
has no place.

Principles of Natural Justice

The use of natural law ideas in the development of English law revolves around two problems:
the idea of the supremacy of law, and, in particular, the struggle between common law judges
and parliament for legislative supremacy on one hand, and the introduction of equitable
considerations of 'Justice between man and man' on the other. The first ended in a clear victory
for parliamentary supremacy and the defeat of higher law ideas. A number of cases are
evidenced with the beginning of seventeenth century wherein a statute was declared void and not
binding for not being inconformity with the principles of Natural Justice.

[9] AIR 1969 2 SCC 262

[10] 1985 AIR 722, 1985 SCR (2)1014
It was held in, Maneka Gandhi case[11] that 'Natural justice is a great humanizing principle
intended to invest law with fairness and to secure justice and ever the year it has grown into a
widely pervasive rule affecting large areas of administrative action. Thus the soul of natural
justice is fair play in action and that is why it has received the widest recognition throughout the
democratic world. In the United States, the right to an administrative bearing is regarded as
essential requirement of fundamental fairness and in England too it has been held that fair play in
action demands that before any prejudicial or adverse action is taken against a person he must be
given an opportunity to be heard.'

Separation of Powers

In England:

According to Garner, there is 'no sharing-out' of power in England and as such 'Separation of
powers' has no place in its strict sense. There are in England the three Authorities: Parliament,
Executive and the Judiciary. But, there is no exclusive province to any specific authority, e.g.
The Lord Chancellor, is the head of the Judiciary, chairman of the Upper House, and a prominent
member of the Cabinet. The court exercises legislative powers when it is making the rules of
procedure. Ministers make the subordinate legislation and also exercise quasi-Judicial powers.
The House of Commons has the power to investigate and punish for breaches of the privileges of
the House. Hence, the theory has no direct application in England [12]

In India:

The Constitution has vested the Executive power in the president (or the Governor). There is no
such separation of the Judiciary from the Executive. The supreme court in re Delhi Law Act
case" opined that the essence of modern separation of powers was found in the concept of
constitutional limitations and trust. E.g. (i) Ordinance making power of the president (Act 123),
(ii) Judiciary making its own Rules of procedure (iii) A Minister sitting as chairman of a Board
to hear petitions. (iv) Delegations of legislative power to subordinate law making bodies etc.

In Ram Jawaya V. St. of Punjab [13], the Supreme Court held that no organ of the state
should exercise functions that essentially belong to the other.

In Keshavananda Bharathi's case [14] the court held that separation of powers was part of the
basic structure of constitution & even under Act 368, it cannot be amended. Thus Parliament
should respect & preserve the courts: Courts should not enter into political problems: such
mutual checks and balances have become the core of separation of powers in modern
constitution. The sum & substance is that the essential functions of the legislature. Executive and
the Judiciary should not be exercised by the others.

[11] 1978 AIR 597, 1978 SCR (2) 621

[12] http://www.msrlawbooks.com/file/ADMINIISTRATIVE_LAW_FF.pdf
[13] AIR 1955 SC 549, 1955 2 SCR 225
[14] (1973) 4 SCC 225
Conclusion

Thus in the above mentioned ways the administrative law origin and application differs from its
original an application in England.