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Admin Law

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10 views

Admin Law

Uploaded by

jyoti pandit
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© © All Rights Reserved
We take content rights seriously. If you suspect this is your content, claim it here.
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ADMINISTRATIVE

LAW
CONSTITUTIONAL LAW &
ADMINISTRATIVE LAW
• As per Holland, Constitutional Law – government organs at rest; Administrative
Law – government organs in motion.
• Thus, Structure of legislature and executive- Constitutional Law; Functioning of the
same – Administrative Law.
• Constitutional Law – general principles relating to organization and powers of
various organs of the State and their mutual relationships and relations of the organs
with individuals; Administrative Law – organization, powers, functions, duties of
administrative authorities.
• Constitutional Law – rights; Administrative Law- public needs.
ORIGIN, GROWTH & DEVELOPMENT
OF ADMINISTRATIVE LAW
GROWTH OF ADMINISTRATIVE LAW
IN U.K.
• Initially, administrative law was denied any existence in U.K., U.S.
• Dicey mistook Administrative Law for the French system of droit administratiff, and his
influence was profound in England.
• French system - duality in system of courts; Administration is subject to droit
administratiff; not subject to jurisdiction of ordinary law courts.
• Decisions of droit administratiff are final, subject only to the review of Conseil de Etat.
• Dicey thus erroneously concluded that any administrative court enforcing any system of
administrative law was alien to Common Law traditions.
• Later – practice of Parliament delegating ‘minor’ legislative powers to Ministers
and subordinate bodies and vesting them with quasi-judicial functions arose.
• This led to an inquiry by the Lord Chancellor’s Committee (Committee on Ministers’
Powers) appointed in 1929.
• 1932 Report of the Committee stressed on certain infrastructural safeguards, while
it did not completely agree with the critics at the same time.
• Committee on Administrative Tribunal and Enquiries appointed in 1955 (Franks
Committee) subsequently examined the relations between the individuals and the
authority.
GROWTH OF ADMINISTRATIVE LAW IN
U.S.
• Certain fundamental ideas of U.S. Constitution, such as doctrine of separation of powers,
due process, other provisions guaranteeing freedom and liberty had been narrowly
interpreted till the first half of the 21st Century because of which administrative law could
not get proper recognition.
• 1893 – Goodsnow brought out a book on Comparative Administrative Law, and
thereby treated the subject as separate for the first time.
• 1946 – Federal Administrative Procedure Act passed prescribing the essential uniform
Administrative Procedure with respect to administrative discretionary and adjudicatory
functions of administrative agencies.
GROWTH OF ADMINISTRATIVE LAW IN
INDIA
• East India Company reign – uncontrolled administrative law. Object of British
administration – maximize profit; Courts – tools in Company’s hands.
• Powers of the Government concentrated in the Governor-General-in-Council, constituted
under the Regulating Act, 1773.
• Covenanted servants of the Company wielded both administrative and judicial powers,
except within territories under the jurisdiction of Supreme Courts at Bombay, Calcutta,
and Madras.
• The beginnings of a functionally distinct body discharging legislative functions was
made under the Charter Act, 1833 and a separate Legislative Council was established
after the takeover from the Company in 1858 under the Indian Councils Act, 1861.
• From Battle of Plassey in 1757 till Independence – one advantage Indian administration
had from a centralized but undemocratic form of government was the facility to make
laws. Executive during this period – wide powers to make rules.
• While there was expansion of administrative powers on one hand, there were provisions
for some kind of control, as well.
• During world Wars, there was a sudden usurpation of administrative powers under various
acts like Defence of India Act 1939. Thus, need of administrative control was recognised.
POST-INDEPENDENCE
• Welfare State philosophy in Indian Constitution.
• DPSP Provisions cannot be achieved by State without growth of administrative process.
• Articles 323A, 323B – special tribunals to facilitate growth of administrative process.
• Control mechanism within the Constitution – Articles 32, 226 (writs); Article 300
(individuals can file suit against government for torts by its servants); Article 311 –
protects government servants from arbitrary actions of government with respect to
dismissal, termination, reduction in rank; Article 136 – Special Leave to appeal; Article
227 – High Courts power of superintendence over all courts, tribunals within their
jurisdiction.
• Constitutional provisions for establishment of administrative agencies to regulate
particular fields such as Article 263 (creation of Inter-State Council); Article 280
(Finance Commission); Article 262 (Inter-State Water Dispute Authority); Article 315
(Public Service Commissions of India); Article 324 (Election Commission).
• Functions of State as facilitator, enablor, regulator – bound to increase present time.
• Today, in India, due to rapid growth of administrative process, “we are not governed, but
administered”.

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