"No conception may be understood save through-its history." Auguste Comte.

"Acquaintance with legal history is almost totally lacking (among judges)

whenever there is an expounding of history, Blackstone still usually suffices."
John Henry Wigmore.

Introduction
The main point of distinction between administrative law and all other laws is the extent of its
application, and control that is exercised by the Courts over these power of the administrative bodies
when they are related to the citizens. This may be regulated by ordinary Courts or with the Courts
having special jurisdiction over such matters. 1
Administrative law is the study of governance. While the Parliament creates authority, the President
enforces that authority, and courts confine or discipline the exercise of that authority, it is agencies
that govern. That said, the starting point for many administrative law cases is an act of Parliament that
allows the agency to function. It is axiomatic that administrative agencies may issue regulations only
pursuant to authority delegated to them by Congress.2
It has at all times been claimed that when the rights of the government are widely stressed then there
is a threat to the rights of the individuals. The fundamental rights are restricted through the usage of
public order or that of the due process of law, and in these cases the Courts may or may not have
the jurisdiction to look into the matter as to whether there is a violation of such rights or not. 3

Separation of powers has been the important concept of modern democracy. This has been
considered as one of the basic principles of democratic governance, thus there has to be
administrative independence from judicial review by the ordinary Courts. With reference to
the plethora of cases and the judgements rendered by The Supreme Court, 4 as Separation of
1 O. Hood Phillips and Paul Jackson, O. Hood Phillips Constitutional and
Administrative Law (6th ed., London: Sweet and Maxwell, 1978) at 11.
2 Am. Library Assn v. FCC, 406 F.3d 689, 691(D.C. Cir. 2005).
3 Id, at 16.
4 Rai Sahib Ram Jawaya v. State of Punjab reported in AIR 1955 S.C. 549 at p.556 Ram Krishna Dalmia v.
Justice Tendolkar reported in AIR 1958 S.C. 538 at p. 546

Powers has been held to be a sacrosanct component of Basic structure of the Constitution
of India, therefore cannot be curtailed by any law. The concept of separation of powers grew
out of centuries of political and philosophical development. Its origins can be traced to 4th
century B.C., when Aristotle, in his treatise entitled Politics, described the three agencies of
the government viz. the General Assembly, the Public Officials, and the Judiciary.5 In
republican Rome, there was a somewhat similar system consisting of public assemblies, the
senate and the public officials, all operating on the principle of checks and balances. 6
Generally, there are three wings performing three different functions: Legislature, Executive
and Judiciary. At the same time, if these three wings are totally independent of each other,
then there would be no protection against the tyranny of the administrative wing. Due to this,
now the Courts have been empowered with the power of judicial review of the administrative
actions.7
Administrative law provides for a mechanism to control the administration by an
outside agency so that there is no injustice done to the individual, as well as there is enough
freedom for the administration to operate independent of any other body. Due to the
increasing powers of the state it has been observed by Lord Denning that, properly exercised
S.C. Advocates-on-Record Association v. Union of India, AIR 1994 SC 268 at p. 301

5 Aristotle also described three elements in every constitution as the deliberative

element, the element of magistracies, and the judicial element. See generally
Robinson, The Division of Governmental Power in Ancient Greece 18
Pol.Sci.Q.614 (1903).
6 J.Bryce, Modern Democracies 391 (1921) cited in Sam.J.Ervin, Seperation of
Powers: Judicial Independence from the website:
http://www.jstor.org/stable/1191032 (last accessed on 16-12-2010).
7 Eric Barendt, Separation of Powers and Constitutional Government, [1995]
P.L. 599. Indian Express Newspapers (Bombay) Private Limited v. Union of India,
AIR 1986 SC 546. The Central Government issued an order under s.25 of
Customs Act, 1962, withdrawing all the exemptions that were granted to the
newspaper from the customs duty. Due to this there was heavy burden on the
newspaper, as not only the duty exemption was removed, there was a positive
increase in the same. Such a withdrawal was challenged under Art.32 on the
ground that there was a restriction placed on the fundamental right of freedom
of speech and expression guaranteed under Art.19 (1)(a). The Court looked into
the fact whether such an order was within the purview of the powers that are
granted to the executive or not? After the consideration of all the relevant
factors, the Court came to the conclusion that the government should have a
reconsider the order of removing the exemption.

the new powers of the executive lead to a Welfare State, but abused they lead to the
Totalitarian State. There are for the same purpose many remedies and weapons that are
available with the aggrieved individual.8

Definition of Administrative Law:

There is no universally accepted definition of administrative law, but rationally it may be held
to cover the organization, powers, duties, and functions of public authorities of all kinds
engaged in administration; their relations with one another and with citizens and nongovernmental bodies; legal methods of controlling public administration; and the rights and
liabilities of officials. Administrative law is to a large extent complemented by constitutional
law, and the line between them is hard to draw.
The law relating to public health, education, housing, and other public services could
logically be regarded as part of the corpus of administrative law; but because of its sheer bulk
it is usually considered ancillary.9
Maitland discussed the definitions of constitutional and administrative law. He examined the
views of Asutin to whom constitutional law is simply what person or classes of persons bore
the sovereign powers, while administrative law determines the end and odes to and in which
the sovereign powers were exercised. Hollands view were summarized by Maitland as I
think we catch his idea if we say that, while constitutional law deals with structure,
administrative law deals with function.10
Professor Upendra Bakshi of India has defined administrative law as that portion of law
which controls the abuse of powers by the administrative authorities so as to protect the rights
of individuals.11
Sir Ivor Jennings wrote, Administrative law is the law relating to the administration. It
determines the organization, powers and duties of administrative authorities. This is most
8 C.K.Takwani, Lectures on Administrative Law (3rd ed., Lucknow: Eastern Book Company, 1998) at 289.

9 http://www.britannica.com/topic/administrative-law
10 F.W. Maitland, Constitutional History of England (Cambridge, The University
Press 1920, 2001 published by law book exchange, Union N.J. 1908)
11 I.P. Massey: Administrative law Introduction by Prof. Upendra Baxi (8 th ed.
Eastern Book Company, 2012

commonly accepted definition today but it does not attempt to distinguish constitutional and
administrative law. Ivor Jennings (1959:217) views administrative law, as the law relating to
Public administration. It is concerned from the legal point of view, with the forms and
constitutional position of public authorities. But Foulkes (1982:1) observes that it is also
concerned with the powers and duties of administrators, with their legal relationships with
another, with the public and with their employees. According to Professor H.W.R Wade first
approximation to a definition of administrative law is to say that it is the law relating to the
control of governmental power and as a second approximation to a definition, administrative
law may be said to be body of general principles which govern the exercise of powers and
duties by public authorities. According to Wade, administrative law relates to the control of
government power. In his opinion, the primary objective of administrative law is to keep
powers of the government within their legal limits, so as to protect the citizens against their
abuse.12

History of Administrative Law

Even though administrative law is a newly coined term, but its history can be traced back to
the advent of the governments. It has been in existence, one way or another, in every form of
government and in all the ages. The development of administrative law goes hand-in-hand
with the development of the society. Administrative law can more rightly be said to be the
sociology of law and not the philosophy of law. The rapid growth of administrative law in the
modern times can be attributed to the following critical changes in the philosophy of the role
and function of the state.
"Droit administratif is, in its contents, utterly unlike any branch of modern English law",
wrote Dicey13 in 1885 "For the term droit administratif, English legal phraseology supplies
no proper equivalent .In England and in countries which, like the United States, derive their
civilization from English sources, the system of administrative law, and the very principles
upon which it rests, are in truth unknown."
12 Administrative Law: (11th Edition) Christopher Forsyth and William Wade
Published: 01 October 2014 ISBN: 9780199683703
13 Law OF THE CONSMIUTION (9th ed., Wade, 1939), Ch. XII deals -with droit
administratif.

But in the more than half a century which has elapsed since that was written, these concepts
have undergone a change which affected even that author himself14 and it is now generally
recognized that not only Continental nations but Britain and the United States have an
administrative law.
Francis Bacon, in his essay Of Judicature (written in 1612), put forth the royalist point of
view when he declared that the judges should be lions, but yet lions under the throne. It is
a happy thing in a state, he wrote, when kings and states do often consult with judges; and
again, when judges do often consult with the king and state: the one, when there is matter of
law intervenient in business of state; the other, when there is some consideration of state
intervenient in matter of law.15 The subordination of the judicature to the royal will was
strongly resisted by Chief Justice Sir Edward Coke, Bacons great rival, who refused to
comply with James Is wishes in a number of cases in which the royal prerogative was
involved. The King criticised the judges more than once on their duty to respect the royal
prerogative and power.
As a result, the executive possessed no inherent powers other than those subject to the rule of
law inasmuch as legislation now had to emanate from the crown in Parliament. In addition,
the judges were expected to protect the subject against the executive. A more intangible
consequence was the belief that government and law were often thought to be opposed to
one another. The earlier conflict between crown and judges survived to become an
antagonism between the legal profession and the executive, particularly the civil service.
In France the separation of powers was given a place of honour in the Declaration of the
Rights of Man and of the Citizen (1789).16 In the French view, however, if a court were
permitted to review an administrative act or decision, it would contravene the separation of
powers as much as if the executive could override the decision of a court. Just as an appeal
from a court lies to a higher court, the reasoning goes, so an appeal from an administrative
14 See Dicev, LAW AND OPINION. IN ENGLAND IN THE 19 th century(2d ed., 1914)
XXIX, XXXI; The Development of Administrative Law in England, (1915) 31 L. Q.
REv. 1 8 et seq
15 Is Administrative Law Unlawful? By Philip Hamburger published: January 1,
2014
16 http://avalon.law.yale.edu/18th_century/rightsof.asp

authority should lie to a higher administrative authority. Only thus would the true separation
of powers be observed.17
The Conseil du Roi of the ancien rgime, with its functions as legal adviser and
administrative court, is generally considered to be the precursor of the Conseil dtat. The
basic structure of the Conseil dtat was laid down by Napoleon, however. Among the
functions accorded to it by the constitution of the year VIII (December 1799) was that of
adjudicating in conflicts that might arise between the administration and the courts. It was
also empowered to adjudicate any matters previously left to the ministers discretion that
ought to be the subject of judicial decision. In 1806 a decree created a Judicial Committee of
the Conseil to examine applications and report thereon to the General Assembly of the
Conseil. These enactments laid the foundation of an administrative jurisdiction that was not
clearly established until May 24, 1872, when a law delegated to the Conseil dtat the
judicial power to make binding decisions and recognized the Conseil as the court in which
claims against the administration should be brought.
The Conseil dtat is and always has been part of the administration. It has for long had the
task of giving legal advice to the government on bills, regulations, decrees, and
administrative questions. It is this that long led foreign jurists into believing that, when sitting
as a court, its decisions would inevitably be biased in favour of the executive. Nothing could
be further from the truth, and today the Conseil is universally recognized as an independent
court that provides French citizens with exceptionally good protection against
maladministration. Suits that are directed against the French administration are heard in the
Section du Contentieux, or Judicial Division, the successor of the Judicial Committee after
restructuring in 1872.
The Conseil dtat is the final authority in administrative disputes. Owing to the immense
volume of work falling on it, the former prefectural councils, which served as administrative
courts subordinate to the Conseil dtat, were transformed in 1953 into administrative
tribunals of first instance, and the professional qualifications and career prospects of their
members were improved. The great majority of cases go before these tribunals, and the
Conseil dtat is the court of first and last instance only in those exceedingly rare cases when
it is specially designated for that purpose.
17 http://www.britannica.com/topic/administrative-law

If difficulty or doubt arises as to whether a case falls within the administrative jurisdiction or
that of the ordinary courts, the question is resolved by the Tribunal des Conflits. This is a
court specially established for the purpose, consisting of five judges from the Cour de
Cassation (the highest civil court) and five from the Conseil dtat. The minister of justice, in
his capacity as keeper of the seals (garde des sceaux), may sometimes preside and cast a tiebreaking vote.
Several other countries have followed France in establishing councils of state. Among them
are Italy, Greece, Belgium, Spain, Turkey, Portugal, and Egypt. It must be stated, however,
that in no other country has a council of state acquired such high status, powers, authority, or
prestige as in France.

Reasons for Growth of Administrative Law

Administrative law is considered as an intensive form of government. It deals with the
pathology of functions. The functions that are discharged by the administrative authorities
differ from time to time depending upon the changes in socio-economic conditions in any
nation. The following factors are responsible for the rapid growth and development of
administrative law:
1. There is a radical change in the philosophy as to the role played by the State. The
negative policy of maintaining 'law and order' and of 'laissez faire' is given up. The
State has not confined its scope to the traditional and minimum functions of defence
and administration of justice, but has adopted the positive policy and as a welfare
State has undertaken to perform varied functions.
2. Urbanization - Due to the Industrial Revolution in England and other countries and
due to the emergence of the factory system in our country, people migrated from the
countryside to the urban areas in search of employment in factories and large scale
industries. As a result of which there arose a need for increase in providing housing,
roads, parks, effective drainage system etc. Legislations were enacted to provide all
these basic facilities and accordingly administrative authorities were required to make
rules and regulations, frame schemes for effective infrastructure and facilities which
ultimately lead to the growth of administrative law.
3. To meet Emergency Situations Enacting legislations, getting assent from the
President is all a lengthy process, whereas it is very easy and quick to frame schemes

and rules for meeting any emergency situations that arise in a locality. Due to the
flexibility of making the rules, obviously there is a constant growth of administrative
law making in the country.
4. The judicial system proved inadequate to decide and settle all types of disputes. It was
slow, costly, inexpert, complex and formalistic. It was already overburdened, and it
was not possible to expect speedy disposal of even very important matters, e.g.
disputes between employers and employees, lockouts, strikes, etc. These burning
problems could not be solved merely by literally interpreting the provisions of any
statute, but required consideration of various other factors and it could not be done by
the ordinary courts of law. Therefore, industrial tribunal and labour courts were
established, which possessed the techniques and expertise to handle these complex
problems.
5. The legislative process was also inadequate. It had no time and technique to deal with
all the details. It was impossible for it to lay down detailed rules and procedures, and
even when detailed provisions were made by the legislature, they were found to be
defective and inadequate, e.g., rate fixing. And, therefore, it was felt necessary to
delegate some powers to the administrative authorities.
6. There is scope for experiments in administrative process. Here, unlike legislation, it is
not necessary to continue a rule until commencement of the next session of the
legislature. Here a rule can be made, tried for some time and if it is found defective, it
can be altered or modified within a short period. Thus, legislation is rigid in character
while the administrative process is flexible.
7. The administrative authorities can avoid technicalities. Administrative law represents
functional rather than a theoretical and legalistic approach. The traditional judiciary is
conservative, rigid and technical. It is not possible for the courts to decide the cases
without formality and technicality. The administrative tribunals are not bound by the
rules of evidence and procedure and they can take a practical view of the matter to
decide complex problems.
8. Administrative authorities can take preventive measures, e.g. licensing, rate fixing,
etc. Unlike regular courts of law, they have not to wait for parties to come before them
with disputes. In many cases, these preventive actions may prove to be more effective
and useful than punishing a person after he has committed a breach of any provision
or law. As Freeman says, "Inspection and grading of meat answers the consumer's
need more adequately than does a right to sue the seller after the consumer is injured."

Administrative authorities can take effective steps for enforcement of the aforesaid preventive
measures; e.g. suspension, revocation and cancellation of licences, destruction of
contaminated articles, etc. which are not generally available through regular courts of law.

Growth of Administrative Law in India

The history shows that man has always appealed to something higher than that which is his
own creation. In jurisprudence, Romans call it jus naturale, Hobbes, Lock and Rousseau
call it social contract, or natural law and the modern man calls it Rule of Law.
The term Rule of Law of derived from French phase la principe de legalite which means
the principle of legality or the morality of law. It refers to a government based on principles
of law and not of man. Edward Coke is said to be the originator of this concept.18
Diceys concept of Rule of Law contains three principles:
1. Absence of discretionary power in the hands of government officials
2. Person should not be punished except for the breach of law and
3. The rights must flow from customs and traditions of people.
The system of administrative legislation and adjudication has existed in India from a very
long time. The Britishers came to India for trade so the primary object of British
administration was to maximise profit. As the Britishers gained control over India the
efficiency of administration became the basic necessity to fulfil its basic purpose. The
executive at that time had overriding powers in the matters of justice.
The establishment of Supreme Court in Calcutta had inaugurated an era of independent
judicial administration but it came to an end with the passage of the Act of Settlement, 1781.
After the Battle of Plassey 1757 a centralised administrative system was formed to make
laws. Thereafter many regulations were passed to take care of administrative justice system,
one among them is Cornwallis Code, 1793. The other one is Section 108 of Regulation Act
18 I.P. Massey: Administrative law Introduction by Prof. Upendra Baxi (8 th ed. Eastern Book Company, 2012

1822 which required administrative agencies to record facts, evidence and decision. The court
had power to control administrative actions but it payed great respect and attention to the
administrative decision.19 Till the end of British rule the Indian Government was concerned
with the more primary duties only. The Indian Constitution was adopted on the policy of
welfare state. Various sections in the constitution such as Article 39 require the state to direct
its policy towards adequate means of livelihood. Article 47 talks about rising of the level of
nutrition and standard of living of its people, article 32 and 226 confers the power to High
courts and Supreme Courts to issue writs. Moreover the constitution itself provides for
establishment of administrative agencies. Article 315 talks about Public Service Commission
in India and article 329 talks about Election Commissions.20
The concept of Rule of Law is not well defined legal concept. In the case of A.D.M Jabalpur
v. Shivkant Shukla21 an attempt was made to challenge the administrative order during
emergency on the ground that it violates the principle of Rule of Law. Though the contention
did not succeed but this case made it clear that Rule of Law can be used as a legal concept. In
Kesavananda Bharti v. State of Kerala22 the Supreme Court of India emphatically highlighted
and held the Rule of Law was considered the basic structure of Indian constitution. In Indira
Nehru Gandhi v. Raj Narain23 the Judges held that the principle of non-arbitrariness which is
an essential attribute of the rule of law is all pervasive throughout the Constitution; and an
adjunct of this principle is the absence of absolute power, therefore Article 329A offends the
concept of Rule of Law. The Supreme Court in case of Som Raj v. State of Haryana24
observed that the absence of arbitrary power is the first postulate of Rule of Law.
The modern concept of Rule of Law is fairly wide. This concept was developed by
International Commission of Jurists. This concept implies that the function of government in
19
20 The Constitution of India, 1950
21 1976 2 SCC 521
22 1973 4 SCC 225
23 1975 SC 2299
24 1990 2 SCC 653

the society should be so exercised as to create conditions in which the dignity of man as an
individual is upheld. During the last few years the Supreme Court of India has developed
some fine principles of third world jurisprudence. This could be seen by the extension of the
Rule of Law to the poor and the downtrodden, the ignorant and the illiterate who form the
bulk of humanity in India. This ruling was provided by the court in response to a letter
drawing attention to unjustified and illegal detention of certain prisoners in jail for almost two
to three decades in the case of Veena Seth v. State of Bihar25
The Courts in India have established Rule of Law society. The public administration has
effectively implemented rule of law. Today the administrative process has grown so much
that we are not governed but administered. The negative side of it is that respect for law
degenerates into legalism which from its very rigidity works as an injury to the nation.26

Nature and Scope of Administrative Law:

The concerns of administrative law are general in nature and can arise in connection with
the administration of any public program. While it is necessary to acquire an understanding of
the administrative, legal and policy contexts within which questions about, for example,
procedural fairness, abuse of discretion, and the interpretation of the legislation arise, the
focus of administrative laws not a detailed study of the law of particular programs. Courses
on labour relations, land use planning, securities, broadcasting and communications, human
rights, and immigration, for example, fulfil this function.
In order to determine the nature and scope of the administrative law, it is imperative to
know what it deals with.
Administrative law deals with the structure, powers and functions of the organs of
administration, the limits of their powers and functions, the methods and procedures followed
by them in exercising their powers and functions, the methods by which their powers are
controlled including the legal remedies available to a person against them when his rights are
infringed by their operation. This statement has four limbs.

25 1982 2 SCC 583.

26 http://www.manupatrafast.com/articles/PopOpenArticle.aspx?ID=61fb07af8c80-4868-b707-b9939e9dae87&txtsearch=Subject:%20Administrative%20Law

The first deals with composition and powers of organs of administration. This sphere
properly belongs to constitutional law.
The second refers to the limits on the powers of the administrative authorities.
The third refers to the procedures used in exercising those powers. The study of
administrative law of to-day seeks to emphasize not only the extraneous control but also the
processes and procedures which the administrative authorities themselves follow in the
exercise of their powers. Evolving of fair procedures is a way of minimizing the abuse of vast
discretionary powers conferred on the administration.
The fourth refers to the control of the administration through judicial and other means. This
is very important.
The administrative process has always existed in every country of the world but this process
received great significance during 20th century and so was the case with Administrative
Law. Administrative Law was in existence in some countries but with the expansion in
public administration, it was noticed as a subject of study.
Massey (1995: 7) has summed up the scope of administrative law in this way, the study of
administrative law is not an end in itself but a means to an end. The focal point of this law is
the reconciliation of power with liberty. The paradox of twentieth century, in the form of
government is the prolific growth in the powers of the state, which on the one hand is
necessary for the promotion of the human liberty and freedom, but on the other hand
threatens to endanger individual freedom. Therefore, the main task of administrative law is to
maintain an ideal equilibrium between the powers of the administration and dictates of the
individual liberty.
The scope of administrative law can be narrated as under:
1.

The methods and procedures of these administrative organs are also studied by this
new branch of law.

2.

It covers the nature of structure, powers and functions of all these administrative
organs.

3.

It also makes available all the relevant remedies to the persons whose rights are
infringed by the operations of these organs during the course of administration.

4.

Why and how administrative organs are to be controlled is also viewed by

administrative law.

Administrative law specifies the rights and liabilities of private individuals in their dealings
with public officials and also specifies the procedures by which those rights and liabilities can
be enforced by those private individuals. It provides accountability and responsibility in the
administrative functioning. Also there are specified laws and rules and regulations that guide
and direct the internal administration relations like hierarchy, division of labor, etc