Administrative law is not a law in the sense of what we perceive

It is so intertwined with Constitution and Constitutional Law that

both overlap each other

Sir Ivor Jennies, famous jurist, in his book, Law and the
Constitution defines Administrative Law as the law relating to administration. It determines the organisation, powers and duties of

administrative authorities.

 The main criticism against this definition is that, Constitution or

Constitutional Law also does the same. Then what is the difference between the Administrative Law and Constitutional law?

This definition lays entire emphasis on the organization, power and

duties to the exclusion of the manner of their exercise

For example a student of Administrative Law is not concerned with

how a Minister is appointed; but with only how a Minister discharges his functions in relation to individual or a group

Keith in Constitutional History of England, also supported the same

view by saying, it is logically impossible to distinguish Administrative Law from Constitutional Law and all attempts to do so are artificial

However, famous jurist, Holland, in his book Jurisprudence tried to

reconcile this dichotomy by saying, the Constitutional Law describes the various organs of the Government at rest, while the Administrative Law describes them in motion

For our purposes, we may define Administrative Law in Four ways: 1.Firstly, it is a branch of Public Law which deals with the contradistinction with private law which deals with the relationships of individuals inter se. Whereas the Administrative Law primarily deals with the relationship of individuals with the organised power 2.Secondly, it deals with the organisation and powers of administrative and quasi-administrative agencies and but alos quasi administrative agencies like Public Sector undertakings 3.Thirdly, Administrative Law includes the study of the existing principles and

also of the development of certain new principles which administrative and

quasi-administrative agencies follow while exercising their powers Contd.

Contd.

One of the main thrusts of the study of Administrative Law is on the

procedure by which official action is reached If the means (procedure) are not trustworthy, the end can not be just. There is a bewildering variety in the

procedure which the administrative agencies follow in reaching action. Such

procedure may be laid down: In the statue itself under which the administrative agency has been created In the separate procedure code which every administrative agency is

bound to follow, i.e., Administrative Act, 1946 in USA and Tribunals and
Enquiries Act, 1958 in England However, in many more cases either the administrative agency is left free to develop its own procedure or its own procedure or it is required to render its actions according to the minimum procedure of the principles of natural justice

Contd.

4. Fourthly, Administrative law includes within its study the control mechanism by
which the administrative agencies are kept within the bounds and made in the service of the individuals. This control mechanism is technically called the review

process or appeal process. An administrative action may be controlled by :

Courts exercising writ jurisdiction through the writs of Hebeas Corpus, mandamus, certiorari, Prohibition and Quo Warranto

Courts exercising ordinary judicial powers through suits, injunctions and

declaratory actions Higher administrative authorities

The institutions of ombudsman and other investigative agencies such as

Vigilance Commissions also exercise control on administrative action. Role of public enquiries in this regard, is also significant

Right to know, right to reply and discretion to disobey also have inherent
potentialities of providing effective , though indirect, in providing check on administrative behaviour

 The focal point of the study of Administrative Law is the reconciliation of

power with liberty When the administrative process started raising after the death of LassiezFaire at the birth of the 20th Century, the stress on the study of Administrative Law was on circumscription of administrative powers

But, now when the administrative process has come to stay, the emphasis has
shifted to the regulation of the administrative powers The paradox of the 20th Century in the form of Government is the prolific growth in the powers of the State which on the one hand necessary for the promotion of human liberty and freedom, but on the other hand, threatens to endanger individual freedom. Therefore, the main task of the students of Administrative Law is to evolve certain principles and rules by which an ideal equilibrium between the powers of the administration and dictates of the individual liberty can be sustained

 Though there are constitutional provisions like Articles 14,15,16,19,21 & 22 which guarantee various human rights and rule of Law. But, in India, finer points of this branch of jurisprudence have emerged out of various court judgments only. Being a judge-made law, it suffers from the frailties and benefits, from the strengths and weaknesses of judicial law making. Consequently, personal and institutional constraints make the growth of Administrative Law vulnerable to judicial meanings and tentativeness

Contd..

Contd..

Prof. Upender Bakshi, Professor of Law, Delhi University has written What we rightly or wrongly named as Administrative Law is nothing more or less then a grand meta-narrative. It is a story about all stories of Law in the making and unmaking. In India, Administrative Law as a separate branch of legal discipline came to be recognized only by the middle of 20th Century

The First seminar on Administrative Law was organised by the Indian Law Institute, New Delhi, in December, 1857. Today, the administration is ubiquitous and impinges freely and deeply on every aspect of an individuals life

Four basic bricks of the foundation of the Administrative Law may be identified as i. To check abuse or detournment of administrative power;

ii. To ensure to citizens an impartial determination of their dispute by officials;

iii. To protect from unauthorized encroachment on their rights and interests; and iv. To make those who exercise public power accountable to the people.

From the above. It should be clear the generally Laws make enabling provisions for the executive to do certain things. But, Administrative Law is in the nature of restricting provisions i.e., ways and means to restrict the arbitrary exercise of power by the executive

Firstly let us try to understand the administrative exercise power in Three ways:

i. Rule making power which is also called quasi-legislative action or delegated legislation
ii. Adjudicatory functions and iii. Rule application action

Besides these main actions, the actions which are incidental to the main action are also covered within its study. Such actions may be investigatory, supervisory, advisory, declaratory or prosecutory

 With all the pervasive nature of governance, today, it is not possible for the legislature to provide for every small detail in the Act and hence the legislature only provides the broad frame work of the policy and leaves the details to be filled up by the executive in form of rules, regulations, etc.,
The Indian Parliament enacted from the period 1973 to 1977 a total of 302 laws: as against this the total number of statutory orders and rules passed in the same period was approximately 25414. Similar figures for the State legislatures may be mind blogging

 Administrative legislation is ultra-virus the enabling act either in policy or in procedure;

excessively delegates or
manifestly unjust

 It is not possible for the Courts to take up all the adjudication of all the disputes. Hence, most of the enactments provide for their own mechanism or primary or secondary level of adjudication in form of department appeals, review or revisions For over some Three or Four Hundred years the AngloAmerican courts have applied Two Principles of Natural Justice, i.e., Nemo judex in causa---No one can be judge in his own case or in other words rule against bias Audi alterm partem ------- Hear the other party or the rule that no one should be condemned unnoticed
Contd.

Contd.

However, Indian Courts have very active in the cause of Natural Justice and the main principles which have emerged out of the Court ruling are: i. Only competent authority can pass an order ii. Rule against dictation or in other words the authority making an order should exercise his independent mind and should not be dictated by others iii. No body can be judge in his own cause. iv. The authority should not suffer from bias either personal bias or departmental bias v. a person must be given an opportunity to defend himself or in other words nobody should be condemned without being heard
Contd.

vi. The order should be reasoned or in other words it should be speaking order

Contd.

Rule of audi alterm partem of being heard includes:-a)Right to notice giving time and place of nature of hearing; b)Right to present case by adducing evidence; c)Right to rebut adverse evidence; d)No evidence to be taken at the back of the party; e)Report of the enquiry to be shown to the party; and f)Reason of the decision or the speaking order.

 Exclusion in the case of emergency Exclusion in the case of confidentiality

Exclusion in the case of routine matter

Exclusion based on impracticality Exclusion in the case of interium preventive action Exclusion in the case of legislature action