SUBJECT:

TEACHING METHODS AND RESEARCH METHODOLOGY

PROJECT WORK ON THE TOPIC:

GROWING IMPORTANCE OF ADMINISTRATIVE LAW AND
THE ROLE OF JUDICIARY IN ADMINISTRATIVE ACTION

SUBMISSION TO:
PROFESSOR P.V. RAO

SUBMITTED BY:
PARUL PRASAD
1ST YEAR, LL.M
ROLL NUMBER - 2012-28

AT:
NALSAR UNIVERSITY OF LAW, HYDERABAD

DATE OF SUBMISSION:
01-10-2012
 PREFACE

I am extremely grateful to my professor, Mr. P.V. RAO for his support for the project, from
initial guidance in the early stages of conceptual inception, and through ongoing advice and
encouragement to this day. He has been instrumental in conceptualization of this study.

I would also like to extend my heartfelt regards and gratitude to the Library Staff and all
those contributors whose names have not been mentioned here.
 CONTENTS

HYPOTHESIS...........................................................................................................................................4
WHAT IS ADMINISTRATIVE LAW?..........................................................................................................5
NATURE AND SCOPE OF ADMINISTRATIVE LAW....................................................................................8
ADMINISTRATIVE LAW AND RULE OF LAW ARE COMPLIMENTARY.....................................................11
HISTORICAL GROWTH AND DEVELOPMENT OF ADMINISTRATIVE LAW..............................................13
RELATION OF ADMINISTRATIVE LAW WITH CONSTITUTIONAL LAW...................................................17
SOURCES OF ADMINISTRATIVE LAW IN INDIA.....................................................................................22
IMPORTANCE OF ADMINISTRATIVE LAW IS GROWING-REASONS.......................................................24
CLASSIFICATION OF ADMINISTRATIVE FUNCTIONS.............................................................................27
JUDICIAL CONTROL OF ADMINISTRATIVE ACTION...............................................................................31
ROLE OF WRITS IN THE ADMINISTRATIVE LAW...................................................................................33
JUDICIAL REVIEW OF ADMINISTRATIVE ACTION..................................................................................39
SUGGESTED FORM OF ADMINISTRATIVE LAW FOR INDIA...................................................................42
CONCLUSION.......................................................................................................................................44
SELECT BIBLIOGRAPHY.........................................................................................................................47
 HYPOTHESIS

Administrative law regulates agency rulemaking, adjudication, enforcement, and

transparency. It specifies the legal status of agencies and administrators and provides for
external review by legislatures and courts. Administrative law is the fundamental regulatory
law of public administration. In democracies it will promote public participation in agency
rulemaking, representation of stakeholders and other interested parties, representativeness,
transparency, fundamental fairness, effective supervision of administrative operations, and
other democratic values.

In democracies, administrative law will emphasize the importance of representativeness,

participation, responsiveness, transparency, and fairness in administration.

In doing this project I have used doctrinal method of research. I have analyses the reasons for
the growth and development of Administrative Law and role of judiciary over Administrative
actions. It addresses the application of administrative law to rulemaking, adjudication,
enforcement, transparency, and the external review of agency actions.
 1

WHAT IS ADMINISTRATIVE LAW?

Administrative Law refers to the set of laws and rules that govern the actions of the Executive
agencies of the government.

According to Sir Ivor Jennings, "administrative law is the law relating to the administrative
authorities". This is the most widely accepted definition of Administrative Law.

According to K. C. Davis, "Administrative law as the law concerns the powers and
procedures of administrative agencies, including especially the law governing judicial review
of administrative action".

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 procedures
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".

The Indian Institution of Law has defined Administrative Law in the following words;
“Administrative Law deals with the structure, powers and functions of organs of
administration, the method and procedures followed by them in exercising their powers and
functions, the method by which they are controlled and the remedies which are available to a
person against them when his rights are infringed by their operation.”

From early 19th century to today’s era the functions of the administration has increased
manifold leading to a transformation in the meaning of the term administrative Law in
accordance with the changes in the society. Administrative Law can be said to be the most
remarkable development of the 20th Century. 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 three main stages led to the expansion of the meaning of the term Administrative law:

Laissez Faire:
The theory of laissez-faire works on the following principles-
 Minimum control of government
 Free enterprise
 Law and order not counted as subjects of state·
 Power said to be concentrated in the hands of the individual

Dogma of Collectivism:
The principle of collectivism evolved which said that the state and individuals shall work in
proper synchronization. The state had proper control over the actions of the individuals and
the state also stood up to take the responsibility for the individual’s life .liberty and property.

Social-Welfare State:
The Dogma of collectivism gave birth to the beginning of a social-welfare state. India is a
socialistic republic as the Preamble of the Constitution articulates. The social welfare state
thrives on the principle of providing justice of all kinds be it social, economic or political and
all laws and actions of the government to be taken keeping in mind the interests of the
citizens. The Constitution envisions at establishing an egalitarian society.

From Laissez –faire to a social welfare state the meaning and definition of administrative law
has developed tremendously. After turning into a social-welfare state the function of state has
shifted from setting the parameters or for deciding the administrative functions to following
the principles of natural justice and reasonableness. Administrative Law today is an all-
pervading feature existing in almost all parts of the society and its functions.

In the field of law, the most significant and outstanding development of the 20th century is
the rapid growth of administrative law. In this century, the philosophy as to the role and
function of the state has undergone a radical change. There was increase in governmental
functions. Administrative Law now includes:
1. The powers and functions of the administrative and quasi-administrative agencies.
2. The procedures these powers to be exercised, prescribed and reviewed.
3. The review by individuals and how the aggrieved persons whose powers have been abused
and can seek a remedy.

Today, the state is not merely a police state, exercising sovereign functions, (protecting the
population from external aggression and from internal strife and for this collecting taxes from
the people) but as a progressive democratic welfare state, it seeks to ensure social security
and social welfare for the common man, regulates the industrial relations exercises control
over production manufacture and distribution of essential commodities; starts many
enterprises, tries to achieve equality for all and equal pay for equal work. (Ref. Directive
Principles of state policy enumerated in the constitution of India) Today, the state is required
to look after the health, and morals of people, provide education to children and takes all the
steps which social justice demands. All these developments have widened the scope and
ambit of administrative law.

Administrative Law is related to public administration. It is the law that controls the
government power. It is concerned with the legal forms and constitutional status of public
authority, with the powers and duty and the procedure followed in exercising them. The
primary purpose of administrative law, therefore, is to restrict the powers of the Government
within their legal limits or bounds so as to protect the citizens against any abuse of power by
governmental machineries.

Rule of law disapproves exercise of arbitrariness on the part of the government. The
significant achievement in the sphere of rule of law is judicial review of administrative action
to ascertain that the executive acts within the four corners of law. While deciding various
cases, the Supreme Court of India has upheld the importance of rule of law in serving the
needs of people without violating their rights.

Administrative Law is an individual’s interface with the State and its instrumentalities. Due
to radical change in the philosophy regarding the role and function of the State (from laissez
faire to welfare), the opportunities of interaction with administration have increased manifold
and continue to increase further. The situation is such that administrative actions impinge on
every aspect of an individual’s life nowadays. Due to unprecedented rise in state intervention
in an individual’s life, the possibility of accumulation of uncontrolled power and arbitrariness
in its exercise too has increased. This in turn has started adversely affecting legal rights
granted to an individual by the law. Therefore, administrative law has been systematically
developed as an instrument to ensure that the powers entrusted or delegated to the
administrative authorities are exercised strictly in accordance with the law. It deals with legal
framework governing public administration and develops the principles to control
administrative power to avoid arbitrariness. Recent growth of international administrative
process has added new dimension to the study of administrative law.
 2

NATURE AND SCOPE OF ADMINISTRATIVE LAW

Administrative law deals with the powers of the administrative authorities. It deals with the
manner in which the powers are exercised and the remedies which are available to the
aggrieved persons, when those powers are abused by the authorities. As discussed above, the
administrative process has come to stay and it has to be accepted as necessary evil in all
progressive societies, particularly n welfare state, where many schemes for the progress of
the society are prepared and administered by the government. The execution and
implementation of this programme may adversely affect the rights of the citizens. The actual
problem is to reconcile social welfare with the rights of the individual subjects. As has been
rightly observed by Lord Denning; “Properly exercised the new powers of the executive lead
to the Welfare State; but abused they lead to Totalitarian State”. The main object of the study
of administrative law is to unravel the way in which these administrative authorities could be
kept within their limits so that the discretionary powers may not be turned into arbitrary
powers.

Administrative Law as a law is limited to concerning powers and procedures of

administrative agencies. It is limited to the powers of adjudication or rule-making power of
the authorities. Thus, it is limited to:
 Establishment, organization and powers of various administrative bodies
 Delegated legislation - the Rule-making power of the authorities
 Judicial functions of administrative agencies such as tribunals
 Remedies available such as Writs, Injunction etc.
 Procedural guarantees such as the application of principles of Natural Justice
 Government liability in tort
 Public corporations

Firstly, Administrative Law is a branch of Public Law which deals with the contradistinction
with private law which deals with the relationships of individuals inter se.
Secondly, It deals with the organisation and powers of administrative and quasi
administrative agencies and but also quasi administrative agencies like Public Sector
undertakings
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. 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 cannot be just.
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

Administrative Law is a new branch of law that deals with the powers of the Administrative
authorities, the manner in which powers are exercised and the remedies which are available
to the aggrieved persons, when those powers are abused by administrative authorities. The
Administrative process has come to stay and it has to be accepted as a necessary evil in all
progressive societies. Particularly in welfare state, where many schemes for the progress of
the society are prepared and administered by the government. The execution and
implementation of these programmes may adversely affect the rights of the citizens. The
actual problem is to reconcile social welfare with rights of the individual subjects. The main
object of the study of Administrative law is to unravel the way in which these Administrative
authorities could be kept within their limits so that the discretionary powers may not be
turned into arbitrary powers.

There are several branches of the science of law. The Administrative Law is a recent branch
of the science of law. In the political science there are few Administrative organs. Certain
functions have been allotted to these organs in the Administrative Machinery. The
Administrative law deals with the structure, functions and powers of the Administrative
organs. It also lays down the methods and procedures which are to be followed by them
during the course of remedies which are available to the persons whose rights and other
privileges are damaged by their operations. From the few lines above explaining the meaning
of the Administrative law, we can notice the exact scope of this new branch of Law. The
scope of Administrative law can be narrated as under:-
 The methods and procedures of these Administrative organs are also studied by this
new branch of law.
 It covers the nature of structure, powers and functions of all these administrative
organs.
 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.
 Why and How the Administrative Organs are to be controlled is also viewed by the
Administrative law.
In this way along with the development in the Political Science and along with the idea of
federal Administration, the separate branch of Administrative law has been developed. It is to
be clearly noted that this branch of Law is exclusively restricted to the Administrative organs
only. The delegated legislations are supposed to be the backbone of the Administrative law.

Thus Administrative law can be said to be science of power of Administrative authorities.

In view of above discussion we can derive at the following conclusions so far as nature and
scope of administrative law is concerned: -

 The administrative law has growing importance and interest and the administrative
law is the most outstanding phenomena in the welfare state of today. Knowledge of
administrative law is as important for the officials responsible for carrying on
administration as for the students of law.
  Administrative law is not codified like the Indian Penal code or the law of Contracts.
It is based on the constitution. No doubt the Court of Law oversees and ensure that the
law of the land is enforced. However, the “very factor of a rapid development and
complexity which gave rise to regulation made specific and complete treatment by
legislation impossible and, instead, made necessary the choice of the body of officers
who could keep abreast of the novelties and intricacies which the problems
presented.”

 Administrative law is essentially Judge made law. It is a branch of public law as

compared to private law-relations inter-se. Administrative law is an ever-expanding
subject in developing society and is bound to grow in size as well as quality in coming
the decades. We need an efficient regulatory system, which ensures adequate
protection of the people’s Rights.

 Principles of administrative law emerge and development whenever any person

becomes victim of arbitrary exercise of public power. Therefore administrative law
deals with relationship individual with power.

 The administrative agencies derive their authority from constitutional law and
statutory law. The laws made by such agencies in exercise of the powers conferred on
them also regulate their action. The principle features are: (a) transfer of power by
legislature to administrative authorities, (b) exercise of power by such agencies, and
(c) judicial review of administrative decisions.

 Administrative law relates to individual rights as well as public needs and ensures
transparent, open and honest governance, which is more people-friendly.

 Inadequacy of the traditional Court to respond to new challenges has led to the growth
of administrative adjudicatory process. The traditional administration of justice is
technical, expensive and dilatory and is not keeping pace with the dynamics of ever
increasing subject matter. Because of limitation of time, the technical nature of
legislation, the need for flexibility, experimentations and quick action resulted in the
inevitable growth of administrative legislative process.

 Administrative law deals with the organization and powers of administrative and
powers quasi-administrative agencies

 Administrative law primarily concerns with official action and the procedure by
which the official action is reached.

 Administrative law includes the control mechanism (judicial review) by which

administrative authorities are kept within bounds and made effective.

Thus, the Administrative Law deals with the structure, power and functions of the various
organs of administration; the methods and procedures followed by them in expressing their
powers and functions; the methods by which they are controlled and the remedies which are
available to a person against them when his rights are infringed by their operation.
 3

ADMINISTRATIVE LAW AND RULE OF LAW ARE COMPLIMENTARY

The basis of Administrative law is the doctrine of “The Rule of Law”. The Expression “Rule
of Law” plays an important role in the administrative law. It provides protection to the people
against the arbitrary action of the administrative authorities. The expression ‘rule of law’ has
been derived from the French phrase ‘la Principle de legality’ i.e. a government based on the
principles of law. In simple words, the term ‘rule of law, indicates the state of affairs in a
country where, in main, the law rules. Law may be taken to mean mainly a rule or principle
which governs the external actions of the human beings and which is recognized and applied
by the State in the administration of justice.

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.

Thus the rule of law signifies that nobody is deprived of his rights and liberties by an
administrative action; that the administrative authorities perform their functions according to
law and not arbitrarily; that the law of the land are not unconstitutional and oppressive; that
the supremacy of courts is upheld and judicial control of administrative action is fully
secured.

BASIC PRINCIPLES OF RULE OF LAW

 Law is Supreme, above everything and everyone. Nobody is the above law.
 All things should be done according to law and not according to whim
 No person should be made to suffer except for a distinct breach of law.
 Absence of arbitrary power being hot and sole of rule of law
 Equality before law and equal protection of law
 Discretionary should be exercised within reasonable limits set by law
 Adequate safeguard against executive abuse of powers
 Independent and impartial Judiciary
 Fair and Justice procedure
 Speedy Trial

RULE OF LAW AND INDIAN CONSTITUTION

The doctrine of Rule of Law has been adopted in Indian Constitution. The ideals of the
Constitution, justice, liberty & equality are enshrined in the preamble.

The Constitution of India has been made the supreme law of the country and other laws are
required to be in conformity with the Constitution. Any law which is found in violation of
any provision of the Constitution is declared invalid.
Part III of the Constitution of India guarantees the Fundamental Rights. Article 13(l) of the
Constitution makes it clear that all laws in force in the territory of India immediately before
the commencement of the Constitution, in so far as they are inconsistent with the provision of
Part III dealing with the Fundamental Rights, shall, to the extent of such inconsistency, be
void. Article 13(2) provides that the State should not make any law which takes away or
abridges the fundamental rights and any law made in contravention of this clause shall, to the
extent of the contravention, be void. The Constitution guarantees equality before law and
equal protection of laws. Article 21 guarantees right to life and personal liberty. It provides
that no person shall be deprived of his life or personal liberty except according to the
procedure established by law. Article 19 (1) (a) guarantees the third principle of rule of law
embodies right of freedom of speech & expression.

Article 19 guarantees six Fundamental Freedoms to the citizens of India -- freedom of speech
and expression, freedom of assembly, freedom to form associations or unions, freedom to live
in any part of the territory of India and freedom of profession, occupation, trade or business.
The right to these freedoms is not absolute, but subject to the reasonable restrictions which
may be imposed by the State.

Article 20(1) provides that no person shall he convicted of any offence except for violation of
a law in force at the time of the commission of the act charged as an offence not be subject to
a penalty greater than that which might have been inflicted tinder the law in for cc at the time
of the commission of the offence. According to Article 20(2), no person shall be prosecuted
and punished for the same offence more than once. Article 20(3) makes it clear that no person
accused of the offence shall be compelled to be witness against himself. In India, Constitution
is supreme and the three organs of the Government viz. Legislature, Executive and judiciary
are subordinate to it. The Constitution provided for encroachment of one organ i.e.: Judiciary
upon another the Legislature if its action is mala fide, as the citizen i.e. an individual can
challenge under Article 32 of the Constitution.

In India, the meaning of rule of law has been much expanded. It is regarded as a part of the
basic structure of the Constitution and, therefore, it cannot be abrogated or destroyed even by
Parliament. It is also regarded as a part of natural justice.

In Kesavanda Bharti vs. State of Kerala Honourable Supreme Court enunciated the rule of
law as one of the most important aspects of the doctrine of basic structure.

In another case Menaka Gandhi vs. Union of India again Honourable Supreme Court declared
that Article 14 strikes against arbitrariness which depicted the importance of the principle of
rule of law.

In Indira Gandhi Nehru vs. Raj Narain13 in which Article 329-A was in question, this
provided certain immunities to the election of office of Prime Minister from judicial review.
The Supreme Court declared Article 329-A as invalid since it abridges the basic structure of
the Constitution.
 3

HISTORICAL GROWTH AND DEVELOPMENT OF ADMINISTRATIVE LAW

1) ENGLAND

In England, by and large, the existence of administrative law as a separate branch of law was
not accepted until the advent of the 20th century. In 1885, Dicey in his famous thesis on rule
of law observed that there was no administrative law in England. He had pronounced to
Robson: “In England, we know nothing of administrative law and we wish to know nothing
about it”. But while saying this, he ignored the existence of administrative discretion and
administrative justice which were current even in his days. In a large number of statutes
discretionary powers were conferred on the executive authorities and administrative tribunals
which could not be called into question by the ordinary courts of law. But he disregarded
them altogether. It appears that his contemporary Maitland was quite conscious about the true
position and he observed in 1887: “If you take up modern volume of the reports of the
Queen’s Bench Division, you will find that about half of the cases reported have to do with
rules of administrative law”.

In 1914, however, Dicey changed his views. In the last edition of his famous book, ‘Law and
the Constitution’, published in 1915, he admitted that during the last 30 years, due to increase
of duties and authority of English officials, some elements of droit had entered in the law of
England. But even then, he did not concede that there was administrative law in England.
However, after two decisions of the House of Lords in Board of Education V. Rice and Local
Government Board V. Arlidge, in his article “The Development of Administrative Law in
England” he observed: “Legislation had conferred a considerable amount of quasi-judicial
authority on the administration which was a considerable step towards the introduction of
administrative law in England”.

A observed by Griffith and Street, the study of administrative law had to suffer a lot because
of Dicey’s conservative approach. Of course, in due course, scholars made conscious efforts
to know the real position. But even to them, the study of administrative law was restricted
only to two aspects, viz. delegated legislation and administrative adjudication.

In 1929, the Committee on Minister’s Powers headed by Lord Donoughmore was appointed
by the British Government to exaine the problems of delegated legislation and the judicial
and quasi-judicial powers exercised by the officers appointed by the ministers and to suggest
effective steps and suitable safeguards to ensure the supremacy of the rule of law.

In 1932, the Donoughmore Committee submitted its report and made certain
recommendations with regard to better publication and control of subordinate legislation,
which were accepted by the Parliament by the passage of the Statutory Instruments Act,
1946. In 1947, the Crown Proceedings Act was passed by the British Parliament which made
the government liable to pay damages in cases of tortious and contractual liability of the
Crown.

Thus, the abandonment of the famous doctrine, “The King can do no wrong” considerably
expanded the scope of administrative law in England. In 1958, the Tribunals and Inquiries
Act was passed for the purpose of better control and supervision of administrative decisions,
and the decisions of the administrative authorities and tribunals were made subject to appeal
and supervisory jurisdiction of the regular courts of law.

2) UNITED STATES OF AMERICA

Administrative Law was in existence in America in the 18th century, when the first federal
administrative law was embodied in statute in 1789, but it grew rapidly with the passing of
the Inter-state Commerce Act, 1877. In 1893, Frank Goodnow published a book on
‘Comparative Administrative Law’ and in 1905, another book on the ‘Principles of
Administrative law of the United States’ was published. In 1911, Ernst Freund’s ‘Case Book
on Administrative Law’ was published. The Bench and the Bar also took interest in the study
of administrative law. In his address to the American bar Association in 1946 President Elihu
Root warned the country by saying: “There is one special field of law. Development of which
has manifestly become inevitable. We are entering upon the creation of a body of
administrative law, quite different in its machinery, its remedies and its necessary safeguards
from the old methods of regulation by specific statutes enforced by the courts………. If we
are to continue a Government of limited powers, these agencies of regulation must
themselves be regulated….”. Unfortunately, this advice of a wise counsel was ignored by the
leaders of the Bar. The powers of the administrative bodies continued to increase day by day
and they became a “Fourth Branch” of the Government.

After the New Deal, it was felt necessary to take effective steps in this field. A special
committee was appointed in 1933 which called for greater judicial control over administrative
agencies. After the report of Roscoe Pound Committee of 1938 and Attorney General’s
Committee of 1939, the Administrative Procedure At, 1946 was passed which contained
many provisions relating to the judicial control over administrative actions.

3) INDIA

Administrative law was existent in India even in ancient times. Under the Mauryas and
Guptas, several centuries before Christ, there was well organized centralized administration
in India. The rule of Dharma was observed by kings and administrators and nobody claimed
any exemption from it. The basic principles of natural justice and fair play were followed by
the kings and officers 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 in existence in the sense in which we study it today.

With the establishment of East India Company and the advent of the British Rule in India, the
powers of Government had increased. Many Acts, statutes and legislations were passed by
the British Government, regulating public safety, health, morality, transport and labour
relations. The practice of granting administrative licence began with the Stage Carriage Act,
1861. The first public corporation was established under the Bombay Port Trust Act, 1879.
Delegated legislations was accepted by the 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 by the Indian Explosives Act, 1884. In many statutes, provisions were made with
regard to holding of permits and licences and for the settlement of disputes by the
administrative authorities and tribunals.
During the Second World War, the executive powers tremendously increased. Defence of
India Act, 1939 and the Rules made there under conferred ample powers on the executive to
interfere with life, liberty and property of an individual with little or no judicial control over
them. In addition to this, the government issued many orders and ordinances covering several
matters by way of administrative instructions.

Since Independence, the activities and the functions of the government have further
increased. Under the Industrial Disputes Act, 1947, the Minimum Wages Act, 1948, the
Factories Act, 1948 and the Employees’ State Insurance Act, 1948, important social security
measures have been taken for those employed in industries.

The philosophy of a welfare state has been specifically embodied in the Constitution of India.
In the Constitution itself the provisions are 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 subserve the common good. The
operation of the economic system should not result in concentration of wealth and means of
production. For the implementation of all these objects the state is given power to impose
reasonable restrictions even on the Fundamental Rights guaranteed by the constitution. In
fact, to secure these objects, several steps have been taken by Parliament by passing many
Acts; e.g. the Industrial (Development and Regulation) Act, 1951, the Requisitioning and
Acquisition of Immovable Property Act, 1952, the Essential Commodities Act, 1955, the
Companies 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, the Beedi
Workers’ Welfare Fund Act, 1976 etc.

Even while interpreting all these Acts and the provisions of the Constitution, the judiciary
started taking into consideration the objects and ideals of social welfare. Thus, in Vellukunel
v. Reserve Bank of India, the Supreme Court held that under the Banking Companies Act,
1949, the Reserve Bank was the sole judge to decide whether the affairs of a banking
company were 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 for by the Reserve Bank. Again, in
State of Andhra Pradesh v. C. V. Rao, dealing with a departmental inquiry, the Supreme
Court held that the jurisdiction to issue a writ of certiorari under Article 226 is supervisory in
nature. It is not an appellate court and if there is some evidence on record on which the
tribunal had passed the order, the said findings cannot be challenged on the ground that the
evidence for the same is insufficient or inadequate. The adequacy or sufficiency of evidence
is within the exclusive jurisdiction of the tribunal. Similar view was taken in K. L. Shinde v.
State of Mysore. In M. P. Srivastava v. Suresh Singh, the Supreme Court observed that in
matters relating to questions regarding adequacy or sufficiency of training, the expert opinion
of the Public Service Commission would be generally accepted by Court. Very recently, in
State of Gujarat v. M. I. Haider Bux, the Supreme Court held that under the provisions of the
land Acquisition Act, 1894, ordinarily, government is the best authority to decide whether a
particular purpose is a public purpose and whether the land can be acquired for that purpose
or not.

Thus, on the one hand, the activities and powers of the government and administrative
authorities have increased and on the other hand, there is greater need for the enforcement of
the rule of law and judicial review over these powers, so that the citizens should be free to
enjoy the liberty guaranteed to them by the Constitution. For that purpose, provisions are
made in statutes giving right to appeal, revision, etc. and at the same time extraordinary
remedies are available to them under article 32, 226 and 227 of the Constitution of India. The
principle of judicial review is also accepted in our Constitution and the orders passed by
administrative authorities can be quashed and set aside if they are mala fide or ultra vires the
Act or the provisions of the Constitution. And if rules, regulations or orders passed by these
authorities are not within their powers, they can be declared ultra vires, unconstitutional,
illegal or void.
 4

RELATION OF ADMINISTRATIVE LAW WITH CONSTITUTIONAL LAW

Administrative law was earlier considered as a part of Constitutional Law. The vast
proliferation of administrative powers developed the Administrative Law as an independent
subject of study requiring a lot of skill and hard work to understand the basic tenets of
governance. There are, however, very wide areas which are of common interest to both
Administrative Law as well as the Constitutional Law; both are concerned with the functions
of Government and both are considered the part of public law. Regarding the distinction
between two systems it has been characterized and correctly as “Constitutional law is
concerned with the organization and functions of Government at rest, whilst Administrative
Law is concerned with that organization and those function in motion”.

Administrative Law is concerned with day to day affairs of the Government while
constitutional law concerned with its structure. Therefore, drawing conclusion from this one
could say that the Constitutional Law represents the static aspects; while the Administrative
Law is concerned with dynamic aspect of government, i.e. the Constitutional Law is
concerned with the theoretical set up. More significantly, it is said that Administrative Law is
the law relating to Administration and defies almost any precise definition or limitation. Thus
the Administrative Law covers a wide range of complex activities.

Administrative law essentially deals with location of power and the limitations thereupon.
Since both of these aspects are governed by the constitution, we shall survey the provisions of
the constitution, which act as sources of limitations upon the power of the state. This brief
outline of the Indian constitution will serve the purpose of providing a proper perspective for
the study of administrative law.
 The Constitution deals with the organization and structure not only of the central
Government but also of the states.
 In a federal constitution, Centre-State relationship is a matter of crucial importance.
While other federal constitutions have only skeletal provisions on this matter the
Indian Constitution has detailed norms.
 The Constitution has reduced to writing many unwritten conventions of the British
Constitution as for example, the principle of collective responsibility of the Ministers,
parliamentary procedure etc.
 There exist various communities and groups in India. To remove mutual distrust
among them, it was felt necessary to include in the Constitution detailed provisions on
Fundamental Rights, safeguards to minorities, Scheduled tribes scheduled castes and
backward classes.
 To promote the social welfare concept on which the state of India is to be based. The
constitution includes Directive Principles of State Policy.
 The Constitution contains not only the fundamental principles of governance but also
many administrative details, such as the provisions regarding citizenship, official
languages, government services, electoral machinery etc. In other constitutions, these
are usually left to be regulated by the ordinary law of the land. The framers of the
Indian Constitution however felt that unless these provisions were contained in the
Constitution, an infant democracy might find itself in difficulties, and the smooth and
efficient working of the Constitution and the democratic process in the country might
 be jeopardized. The form of administration has a close relation with the form of the
Constitution and the former must be appropriate to the latter. It is quite possible to
pervert the constitutional mechanism, without changing its form, by merely changing
the form of the administration and making it inconsistent with, and opposed to, the
spirit of the constitution. Since India was emerging as an independent country after a
long spell of foreign rule, the country lacked democratic values. The constitution-
makers therefore thought it prudent not to take unnecessary risks, and to incorporate
in the constitution itself the from of administration as well, instead of leaving it to the
legislature, so that the whole mechanism may become viable.

The preamble to the Constitution declares India to be a Sovereign Democratic Republic. The
term ‘Sovereign’ denotes that India is subject to no external authority. The term ‘democratic’
signifies that India has a parliamentary from of government, which means a government
responsible to an elected legislature.

The preamble to the Constitution enunciates the great objectives and the socio-economic
goals for the achievement of which the Indian Constitution has been established. These are:
to secure to all citizens of India social, economic and political justice; to secure to all Indian
citizens liberty of thought, expression, belief, faith and worship; to secure to them equality of
status and opportunity, and to promote among them fraternity so as to secure the dignity of
the Individual and the unity of the nation. The Indian Constitution has been conceived and
drafted in the mid-twentieth century-an era when the concept of social welfare state is
predominant. It is thus pervaded with the modern outlook regarding the objectives and
functions of the state. It embodies a distinct philosophy of government, and, explicitly
declares that India will be organized as a social welfare state, i.e., a state that renders social
services to the people and promotes their general welfare. In the formulations and
decelerations of the social objectives contained in the preamble, one can clearly discern the
impact of the modern political philosophy, which regards the state as an organ to secure the
good and welfare of the people. This concept of a welfare state is further strengthened by the
Directive Principles of State Policy, which set out the economic, social and political goals of
the Indian constitutional system. These directives confer certain non-justice able rights on the
people, and place the governments under an obligation to achieve and maximize social
welfare and basic social values like education, employment, health etc. In consonance with
the modern beliefs of man, the Indian Constitution sets up a machinery to achieve the goal of
economic democracy along with political democracy, for the latter would be meaningless
without the former in a poor country like India.

India is a country of religions. There exist multifarious religious groups in the country but, in
spite of this, the Constitution stands for a secular state of India.. The essential basis of the
Indian Constitution is that all citizens are equal, and that the religion of a citizen is entirely
irrelevant in the matter of his fundamental rights. The Constitution answers equal freedom for
all religions and provide that the religion of the citizen has nothing to do in socio-economic
maters.

The Indian Constitution has a chapter on Fundamental Rights and thus guarantees to the
people certain basic rights and freedoms, such as, inter alia, equal protection of laws, freedom
of speech and expression freedom of worship and religion. Freedom of assembly and
association, freedom to move freely and to reside and settle an where in India, freedom to
follow any occupation, trade or business, freedom of person, freedom against double
jeopardy and against export facto laws. Untouchables, the age-old scourge afflicting the
Hindu society, have been formally abolished. The people can claim their Fundamental Rights
against the state subject to some restrictions, which the state can impose in the interests of
social control. These restrictions on Fundamental Rights are expressly mentioned in the
Constitution itself and, therefore, these rights can be qualified or a bridged only to the extent
laid down. These rights, in substance, constitute inhibitions on the legislative and executive
organs of the state. No law or executive action infringing a Fundamental Right can be
regarded as valid. In this way, the Constitution demarcates an area of individual freedom and
liberty wherein government cannot interfere. The judiciary ensures an effective and speedy
enforcement of these rights. Since the inauguration of the Constitution, many significant legal
battles have been fought in the area of Fundamental Rights and, thus, a mass of interesting
case law has come into being in this area.

The Indian society lacks homogeneity, as there exist differences of religion, language,
culture, etc. There are sections of people who are comparatively weaker than others-
economically, socially and culturally and their lot can be ameliorated only when the state
makes a special effort to that end. Mutual suspicion and distrust exist between various
religious and linguistic groups. To promote a sense of security among the minorities, to
ameliorate the conditions of the depressed and backward classes, to make them useful
members of society, to weld the diverse elements into one national and political stream, the
Constitution contains a liberal scheme of safeguards to minorities, backward classes and
scheduled castes. Provisions have thus been made, inter alia, to reserve seats in the State
Legislatures and Lok Sabha and to make reservations services, for some of these groups, to
promote the welfare of the depressed and backward classes and to protect the languages and
culture of the minorities.

India has adopted adult suffrage as a basis of elections to the Lok Sabha and the State
Legislative Assemblies. Every citizen, male or female, who has reached the age of 18 years
or over, has a right to vote without any discrimination. It was indeed a very bold step on the
part of the constitution makers to adopt adult suffrage in a country of teeming millions of
illiterate people, but they did so for some very sound reasons. If democracy is to be broad-
based and the system of government is to have the ultimate sanction of the people as a whole,
in a country like India where large masses of people are poor an illiterate, the introduction of
any property or educational qualification for exercising the franchise would have amounted to
a negation of democratic principles. Any such qualification would have disenfranchised a
large number of depressed people. Further, it cannot be assumed that a person with a bare
elementary education is in a better position to exercise the franchise are and choose his
representatives accordingly.

A notable feature of the Constitution is that it accords a dignified and crucial position to the
judiciary. Well-ordered and well-regulated judicial machinery had been introduced in the
country with the Supreme Court at the apex. The jurisdiction of the Supreme Court is very
broadly worded. It is a general court of appeal from the High Court, is the ultimate arbiter in
all-constitutional matters and enjoys an advisory jurisdiction. It can hear appears from any
court or tribunal in the country and can issue writ for enforcing the Fundamental Rights.
There is thus a good deal of truth in the assertion that the highest court in any other
federation. There is a High Court in each State. The High Courts have wide jurisdiction and
have been constituted into important instruments of justice. The most signification aspect of
their jurisdiction is the power to issue writs.
The judiciary in India has been assigned role to play. It has to dispense justice not only
between one person and another, but also between the state and the citizens. It interprets the
constitution and acts as its protector and guardian by keeping all authorities legislative,
executive, administrative, judicial and quasi-judicial- within bounds. The judiciary is entitled
to scrutinize any governmental action in order to assess whether or to it conforms to the
constitution and the valid laws made there under. The judiciary has powers to protect
people’s Fundamental Rights from any unreasonable encroachment by any organ of the state.
The judiciary supervises the administrative process in the country, and acts as the balance
wheel of federalism by settling disputes between the centre and the states or among the state
inter se.

India’s Constitution is of the federal type. It established a dual polity, a two tier governmental
system with the Central Government at one level and the state Governments at the other. The
Constitution marks off the sphere of action of each level of government by devising an
elaborate scheme of distribution of legislative, administrative, and financial powers between
the Centre and the States. A government is entitled to act within its assigned field and cannot
go out of it, or encroach on the field assigned to the other government.

Thus the Constitution of India is having significant effect on laws including

administrative law. It is under this fundamental laws are made and executed, all
governmental authorities and the validity of their functioning adjudged. No legislature can
make a law and no governmental agency can act, contrary to the constitution no act,
executive, legislative, judicial or quasi-judicial, of any administrative agency can stand if
contrary to the constitution. The constitution thus conditions the whole government process
in the country. The judiciary is obligated to see any governmental organ does not violate the
provisions of the constitution. This function of the judiciary entitles it to be called as guardian
of the constitution.

Today in India, the Administrative process has grown so much that it will not be out of place
to say that today we are not governed but administered. It may be pointed out that the
constitutional law deals with fundamentals while administrative with details. The learned
author, Sh. I.P. Messey, has rightly pointed out, whatever may be the arguments and counter
arguments, the fact remains that the administrative law is recognized as separate, independent
branch of legal discipline,. Though, at times, the disciplines of constitutional law and
administrative law may over lap. Further clarifying the point he said the correct position
seems to be that if one draws two circles of administrative law and constitutional law at a
certain place they may over lap and this area may termed as watershed in administrative law.

In India, in the Watershed one can include the whole control mechanism provided in the
constitution for the control of the administrative authorities that is article 32, 226,136,300 and
311. Constitutional Law recognizes administrative law indirectly by envisaging few
administrative bodies like Inter State Council (Art. 263), Union Public Service Commission
(Art. 315) and Election Commission (Art. 329) etc.

CONSTITUTIONAL BACKGROUND OF ADMINISTRATIVE LAW

Administrative authorities are subjected to the control of statutes and judicial decisions. In
India, the administrative and executive acts can be challenged in the following manner:
 Subordinate delegated legislation are expressly brought within the fold of Article 13
of the Constitution by defining ‘law’ as including ‘order’ ‘bye-law’, rule, regulation
notification—having the force of law. Thus, the statutory instrument can be
challenged as involved not only on the ground of its being ultra vires, the statute
which confers power to make it but also on the additional ground that it contravenes
any of the fundamental rights contained in Part III of the Constitution of India under
Articles 32 and 226.

 Even purely administrative action will be void if it contravenes any of those

fundamental rights which constitute limitations against any State action.

 An administrative act whether statutory or non-statutory will be void if it violates any

of the mandatory and justifiable provisions of the Constitution. Remedy of violation
of such Constitutional rights is distinct from the violation of fundamental rights and is
simple one.

 Through Public Interest Litigation, the High Courts and the Supreme Court can
review any administrative action in broader public interest.
 5

SOURCES OF ADMINISTRATIVE LAW IN INDIA

Administrative law is mainly concerned with powers. It is necessary to examine the sources
of powers before considering in details how power is controlled. The customary divisions of
the sources of legal power are "Common law" and "Statute", so it is with administrative
authority. So far as the Central Government is concerned its common law powers falls under
the Royal Prerogative which however has no relevance to the activities either of local
Government authorities or modern statutory corporations. Which also include ministerial
departments, such as, Housing and Local Government Education. Since the latter are
exclusively the creation of parliament it follows their powers are derived solely from the
same source. In the realm of the Administrative law, the conflict between the parliament and
courts would arise whenever the former seeks to abridge any of the fundamental rights of the
citizens which are justifiable.

There are four principal sources of administrative law in India:-

 Constitution of India
 Acts and Statute Law
 Ordinances, Administrative directions, notifications and Circulars
 Judicial decisions

The Constitution of India: It deals with formulation of the executive, the powers of the
executive during peace and emergency times. Administrative law is concerned solely with the
Administrative acts or either the administrator or of quasi judicial bodies. Now the methods
by which such acts are interfered with are by the use of the prerogative or common law writs,
especially by the writs of certiorari, mandamus and prohibitions. These writs are issued only
by the High Courts in England and by the Supreme Court and High Courts in India under
Articles 32 and 226 of the constitution of India. This jurisdiction excludes ordinary courts i.e.
very civil or criminal proceedings in the land, because those proceedings carry with them the
safeguards provided by statute of the appeal, revision and review. Hence, it is clear that these
writs are not available against the judicial proceedings of the courts. The constitution of India
also provides under Article 299 and 300, the contractual and tortious liability of the
government servants.

Acts and Statute Law: It is an exclusive source of Administrative power. The term covers
both Act of parliament and delegated legislation. Act of parliament comprise public general
Acts and private or local Acts. Delegated of Parliament comprise public general Acts
legislation, includes statutory rules and orders. Acts of parliament fall into two categories
which may be conventionally termed constituent Acts and enabling Act, but some Acts deal
with both constitution and power. In short, we can say statues are one of the important
sources of Administrative law.

Ordinances, Administrative directions, notifications and Circulars: Ordinances are

issued by the President (at Union / Federal level) and Governor (at State level) and are valid
for a particular period of time. These ordinances give additional powers to administrators in
order to meet urgent needs. Administrative directions, notifications and circulars provide
additional powers by a higher authority to a lower authority. In some cases, they control the
powers.

Judicial decisions or Judge-made Law: It has been responsible for laying down several
new principles related to administrative actions. They increased the accountability of
administrative actions and acted as an anchor between the notifications, circulars etc. to be
linked and complied directly or indirectly with the constitutional or statutory provisions.
 6

IMPORTANCE OF ADMINISTRATIVE LAW IS GROWING-REASONS

There are several reasons and factors which are responsible for the rapid growth of
Administrative law in 20th century.

 Changed relations of Authorities and Citizens: It can be seen from the present set
up of the Administration that relations of the public authorities with the citizens have
been deeply changed. Citizens were not directly involved in the administration in the
earlier days. They were somewhat isolated from the sphere of Administration. There
was a wide gap between the Administrative organs and the then citizens. This is not
the case today. Today in most of the states there is a democratic Administration of
either type. It is therefore, the association of the people is found to be integral. The
citizens are closely associated with the state Administration. In view of these
changing relations, the basic structure of the legal set up needs to be rearranged. The
Administrative law, has therefore, developed.

 Origin of Welfare State Concept: During the period of 19th and 20th Century the
concept of state was developed. According to the doctrine of welfare the basic
objective of the State Administration is to achieve maximum Welfare of the masses.
Each and every policy of the state should aim at maximum welfare of the people. It
obviously added to the functions of state. The theory of increasing functions of the
state has been accepted by almost all. Increase in functions of the states created
several problems and complications. It was, therefore, thought necessary to solve the
problems to enact separate Branch of Law and hence the branch known as the
Administrative Law has been developed.

 Inadequacy of the Legislations: At present there are several drawbacks in the

present Legislations. It would have been, therefore, found very difficult to
accommodate the new Administrative machinery in the existing legislations. In order
to meet the expanding needs of changed social, economic characterised problems, the
new branch of law, i.e. Administrative Law was necessary. The legislature 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.

 Inadequacy of Courts: As it is quite known to us that the present courts are

overburdened with the huge work, it is almost impossible for the present set of courts
to solve the ever crowded problems of Administration along with its own. It is
therefore, proposed that there should be separate Branch of Law for the problems of
Administration and hence this new Branch has been developed.

 Technical Experts are with Administrative Organs: At present all the technical
experts are with the Administrative organs. In case it is attempted to shift the legal job
 of Administration to the present judiciary and the present legislations, the same will
be handicapped due to lack of technical knowledge. Thus in order to utilise and use
the talent of the technical experts which are at present with the Administrative organs
it is really wise creating new and coordinating branch of law i.e. Administrative law.
And lastly, we can say that they act as an impartial arbitrator, and hence there is a
need of separate Administrative Law.

 Union of Administrative & Judicial Function: As per the Principle of separation of

powers these organs of Administration have been proposed and created. The
Executive, the Legislative and Judiciary are these three organs which are functioning
separately. But in order to coordinate Administrative Law for Administrative Organs.

 The Judicial System Proved Inadequate: To decide and settle all the disputes. It
was slow, costly inexpert, complex and formalistic. It was already over-burdened, and
it was not possible to expect speedy disposal of even very important matters. e.g.
Disputes between employers and employees, lock-outs, strikes etc. Therefore
industrial tribunals and labour courts were established which possessed the techniques
and experts to handle these complex problems. 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 tribunals and labour courts were established, which possessed
the techniques and expertise to handle these complex problems.

 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.

 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.

 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.

 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.

 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.

 Final glance: In recent times a new branch of Administrative Law is emerging, which
is popularly called Global Administrative Law. According to this the WTO is
dictating guidelines on subsidiaries, facilities and services to the people in different
countries. The Banks have also not been spared from the interference of the WTO
guidelines. Thus, it may be submitted, that due to the emerging Global Administrative
Law, in the near future there is every possibility for the necessity to relook into the
reasons for growth of Administrative law.
 7

CLASSIFICATION OF ADMINISTRATIVE FUNCTIONS

There are three organs of the Government – the Legislature, the Executive and the Judiciary.
The function of the legislature is to enact the law; the executive is to administer the law and
the judiciary is to interpret the law and to declare what the law is. But as observed by the
Supreme Court in Jayantilal Amratlal v. F. N. Rana it cannot be assumed that the legislative
functions are exclusively performed by the legislature, executive functions by the executive
and judicial functions by judiciary.

Today, the executive performs variegated functions, viz. to investigate, to prosecute, to

prepare and to adopt schemes, to issue and cancel licences, (administrative); to make rules,
regulations and bye-laws, to fix prices, (legislative); to adjudicate on disputes, to impose fine
and penalty, etc. (judicial); rule-making (quasi-legislative) and adjudication (quasi-judicial)
have become the chief weapons in the administrative armoury.

Generally administrative functions are separated into:

 Administrative function.
 Legislative function.
 Quasi-legislative function.
 Judicial function.
 Quasi-judicial function.

ADMINISTRATIVE FUNCTION

In A.K. Kraipak v. Union of India, 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 and the consequences.

Therefore, 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. No exhaustive list of
such actions may be drawn; however, a few may be noted for the sake of clarity:
1. Making a reference to a tribunal for adjudication under the Industrial Disputes Act.
2. Functions of a selection committee.

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 Ram Jawaya v. State of Punjab, the Supreme Court observed, “It may not be possible to
frame an exhaustive definition of what executive function means and implies. Ordinarily the
executive power connotes the residue of governmental functions that remain after legislative
and judicial functions are taken away." Thus, administrative functions are those functions
which are neither legislative nor judicial in character. Generally, the following ingredients are
present in administrative functions:
 An administrative order is generally based on governmental policy or expediency.
 In administrative decisions, there is no legal obligation to adopt a judicial approach to
the questions to be decided, and the decisions are usually subjective rather than
objective.
 An administrative authority is not bound by the rules of evidence and procedure
unless the relevant statute specifically imposes such an obligation.
 An administrative authority can take a decision in exercise of a statutory power or
even in the absence of a statutory provision, provided such decision or act does not
contravene provision of any law.
 Administrative functions may be delegated and sub-delegated unless there is a
specific bar or prohibition in the statute.
 While taking a decision, an administrative authority may not only consider the
evidence adduced by the parties to the dispute, but may also use its discretion.
 An administrative authority is not always bound by the principles of natural justice
unless the statute casts such duty on the authority, either expressly or by necessary
implication or it is required to act judicially or fairly.
 An administrative order may be held to be invalid on the ground of unreasonableness.
 An administrative action will not become a quasi-judicial action merely because it has
to be performed after forming an opinion as to the existence of any objective fact.
 The prerogative writs of certiorari and prohibition are not always available against
administrative actions.

LEGISLATIVE FUNCTION

Legislative functions of the executive consist of making rules, regulations, bye-laws, etc. A
further distillate of administrative action is ministerial action. Ministerial action is that action
of the administrative agency, which is taken as matter of duty imposed upon it by the law
devoid of any discretion or judgment. Therefore, a ministerial action involves the
performance of a definitive duty in respect of which there is no choice. Collection of revenue
may be one such ministerial action.
1. Notes and administrative instruction issued in the absence of any
2. If administrative instructions are not referable to any statutory authority they cannot
have the effect of taking away rights vested in the person governed by the Act.

It is, no doubt, true that any attempt to draw a distinct line between legislative and
administrative functions is difficult in theory and impossible in practice. Though difficult, it
is necessary that the line must be drawn as different legal rights and consequences ensue. As
Schwartz said, “If a particular function is termed ‘legislative’ or ‘rule-making’ rather than
‘judicial’ or ‘adjudication’, it may have substantial effects upon the parties concerned. If the
function is treated as legislative in nature, there is no right to a notice and hearing unless a
statute expressly requires them.” In the leading case of Bates v. Lord Hailsham, Megarry, J.
observed that “the rules of natural justice do not run in the sphere of legislation, primary or
delegated.” Wade also said, “There is no right to be heard before the making of legislation,
whether primary or delegated, unless it is provided by statute.” Fixation of price, declaration
of a place to be a market yard, imposition tax, establishment of Municipal Corporation under
the statutory provision, extension of limits of a town area committee, etc. are held to be
legislative functions.

QUASI-LEGISLATIVE FUNCTION

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. 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 a 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, it is
known as the rule-making action of the administration or quasi-legislative action and
commonly known as delegated legislation. Rule-making action of the administration partakes
all the characteristics, which a normal legislative action possesses. Such characteristics may
be generality, prospectively and a behaviour that bases action on policy consideration and
gives a right or a disability. These characteristics are not without exception. In some cases,
administrative rule-making action may be particularised, retroactive and based on evidence.

JUDICIAL FUNCTION

According to the Committee on Ministers’ Powers, a pure judicial function presupposes an

existing dispute between two or more parties and it involves four requisites:
 The presentation (not necessarily oral) of their case by the parties to the dispute;
 If the dispute is a question of fact, the ascertainment of fact by means of evidence
adduced by the parties to the dispute and often with the assistance of argument by or
on behalf of the parties, on evidence;
 If the dispute between them is a question of law, the submission of legal argument by
the parties; and
 A decision which disposes of the whole matter by finding upon the facts in dispute
and ‘an application of the law of the land to the facts found, including, where
required, a ruling upon any disputed question of law.’

Thus, these elements are present, the decision is a judicial decision even though it might have
been made by any authority other than a court, e.g. by Minister, Board, Executive Authority,
Administrative Officer or Administrative Tribunal.
QUASI-JUDICIAL FUNCTION

The word ‘quasi’ means ‘not exactly.’ Generally, an authority is described as ‘quasi-judicial’
when it has some of the attributes or trappings of judicial functions, but not all. Today the
bulk of the decisions which affect a private individual come not from courts but from
administrative agencies exercising ad judicatory 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. On the basis of this definition, the following functions of the administration have
been held to be quasi-judicial functions:
 Disciplinary proceedings against students.
 Disciplinary proceedings against an employee for misconduct.
 Confiscation of goods under the sea Customs Act, 1878.
 Cancellation, suspension, revocation or refusal to renew license or permit by licensing
authority.
 Determination of citizenship.
 Determination of statutory disputes.
 Power to continue the detention or seizure of goods beyond a particular period.
 Refusal to grant ‘no objection certificate’
 Forfeiture of pensions and gratuity.
 Authority granting or refusing permission for retrenchment.
 Grant of permit by Regional Transport Authority.

All quasi-judicial decisions essentially have two characteristics in common.

1. Presentation of their case by the parties; and
2. The decision on questions of fact by means of evidence adduced by the parties.

However, it is not always true. Firstly, in many cases, the first characteristic is absent and the
authority may decide a matter not between two or more contesting parties but between itself
and another party, e.g. an authority effecting compulsory acquisition of land. Here the
authority itself is one of the parties and yet it decides the matter. It does not represent its case
to any court or authority. Secondly, there may be cases in which no evidence is required to be
taken and yet the authority has to determine the questions of fact after hearing the parties, e.g.
ratemaking or price-fixing. Thirdly, after ascertainment of facts, unlike a regular court, an
authority is not bound to apply the law to the facts so ascertained, and the decision can be
arrived at according to considerations of public policy or administrative discretion, which
factors are unknown to an ordinary court of law.
 8

JUDICIAL CONTROL OF ADMINISTRATIVE ACTION

The exercise of power by the Administrative authorities by itself is not pure evil but gives
much room for misuse. Therefore, remedy lies in tightening the procedure and not in
abolishing the power itself.

JUDICIAL CONTROL OF ADMINISTRATIVE ACTION:

Though courts in India have developed a few effective parameters for the proper exercise of
administrative power, the conspectus of judicial behaviour still remains halting and residual.
Judicial control mechanism of administrative action is exercised at two stages:

 Control at the stage of delegation of power - The court exercises control over
delegation of discretionary powers to the administration by adjudicating upon the
constitutionality of the law under which such powers are delegated with reference to
the fundamental rights. Therefore, if the law confers vague and wide discretionary
power on any administrative authority, it may be declared ultra vires Article 14,
Article 19 and other provisions of the Constitution.

 Control at the stage of the exercise of pawer - In India there is no Administrative

Procedure Act providing for judicial review on the exercise of administrative
discretion. The power of judicial review arises from the courts. Courts in India have
developed various formulations to control the exercise of administrative discretion.
These formulations may be conveniently grouped into two broad categories:

o That the authority is deemed not to have exercised its power at all– “non
application of mind” - Under this categorization, courts exercise judicial
control over administrative discretion if the authority has either abdicated its
power or has put fetters on its exercise or the jurisdictional facts are either
non-existent or have been wrongly determined. The authority in which
discretion is vested can be compelled to exercise it, but not to exercise it in a
particular manner. When a discretionary power is conferred on an authority,
the said authority must exercise that power after applying its mind to the fact
and circumstances of the case in hand. Thus where the authority abdicates its
power e.g. abdication of functions, acting under dictation, conditional
precedents, acts mechanically & without due care, imposes fetters on the
exercise of discretion, there is a failure to exercise discretion.

o That the authority has not exercised its power properly– “abuse of
discretion” - When discretionary power is conferred on an administrative
authority, it must be exercised according to law. When the mode of exercising
a valid power is improper or unreasonable there is an abuse of the power.
Improper exercise of discretion includes everything which English courts
include in ‘unreasonable’ exercise of discretion and American courts include
in ‘arbitrary and capricious’ exercise of discretion. Improper exercise of
discretion includes such things as ‘taking irrelevant considerations into
 account’, ‘acting for improper purpose’, ‘asking wrong questions’, ‘acting in
bad faith’, ‘neglecting to take into consideration relevant factors’, ‘acting
unreasonably’ etc.

The Supreme Court observed in K.L. Trading Co. Ltd. v. State of Meghalaya, that to attract
judicial review of administration action, the applicant must show that the administrative
action suffers from vice of arbitrariness, unreasonableness and unfairness. Merely because
the Court may feel that the administrative action is not justified on merit, can be no ground
for interference. The Court can only interfere when the process of making such decision is
wrong or suffers from the vice of arbitrariness, unfairness and unreasonableness.
 9

ROLE OF WRITS IN THE ADMINISTRATIVE LAW

Administrative law has greatly demarcated the checks, balances and permissible area of an
exercise of power, authority and jurisdiction over administrative actions enforced by the any
State, Governmental agencies and instrumentalities defined under Article 12 of the
Constitution of India. And the judiciary is dynamically carving the principles and exceptions,
while making the judicial review of administrative actions.

There are provisions in the Constitution, which empowers the Supreme Court and High
Courts to issue writs under Article 32 and 226 respectively in the nature of Habeas Corpus,
Mandamus, Prohibition, Quo Warranto and Certiorari. The fundamental rights which are
inalienable sacrosanct in nature and character which were conceived in national and public
interest could be illusory if there is no constitutional machinery provided for its enforcement.
Unless such constitutional remedies for its enforcement are not provided the rights
guaranteed by part III of the Constitution cannot be ever implemented by the citizens. Article
32 contained in Part III is itself a fundamental right given to the person under the
Constitution. Similarly Article 226 of the Constitution is conferred on the High Courts to
exercise its prerogative writs which can be issued against any person or body of person
including the government.

The distinction between the two remedies is very negligible. The remedy under Article 32 is
confined to enforcement of fundamental rights whereas Article 226 is available not only
against the enforcement of fundamental rights but also for any other purpose. Thus, the
constitution provides the discretionary remedies on the High Court and the Supreme Court. In
the absence of the provisions of such remedies, no one can enforce its rights given. Thus,
wherever there is a right there must be a remedy for it.

TYPES OF WRITS

 The writ of Certiorari can be described as “one of the most valuable and efficient
remedies. Such powers are exercised when the authorities have failed to exercise the
jurisdiction though vested in it or failed to exercise the jurisdiction though vested on
him or to correct the apparent error on the face of record or there is violation of the
principle of natural justice. An instance showing the certiorari powers was exercised
by the Honourable Supreme court in A.K.Kraipak v. Union of India, where the
selection was challenged on the ground of bias. The Supreme Court delineated the
distinction between quasi judicial and administrative authority. The Supreme Court
exercising the powers issued the writ of Certiorari for quashing the action.

 The writ of Prohibition is issued by the court exercising the power and authorities
from continuing the proceedings as basically such authority has no power or
jurisdiction to decide the case. Prohibition is an extra ordinary prerogative writ of a
preventive nature. The underlying principle is that ‘prevention is better than cure.
  The writ of Mandamus is a judicial remedy which is in the form of an order from a
superior court to any Government agency, court or public authority to do or forbear
from doing any specific act which that body is obliged to do under the law. The writ
of mandamus is issued whenever the public authorities fail to perform the statutory
duties confirmed on them. Such writ is issued to perform the duties as provided by the
state under the statute or forbear or restrain from doing any specific act. The writ of
mandamus can be issued if the public authority vested with power abuses the power
or acts mala fide to it.

 The writ of Quo Warranto means “by what warrant or authority”. Quo Warranto
writ is issued against the person of public who occupies the public seat without any
qualification for the appointment. It is issued to restrain the authority or candidate
from discharging the functions of public office. In University of Mysore v. Govinda
Rao, the Supreme Court observed that the procedure of quo Warrato confers the
jurisdiction and authority on the judiciary to control executive action in making the
appointments to public offices against the relevant statutory provisions; it also
protects a citizen being deprived of public office to which he may have a right.

 The writ of Habeas Corpus is a process for securing liberty to the party for illegal
and unjustifiable detention. It objects for providing a prompt and effective remedy
against illegal restraints. The writ of Habeas Corpus can be filled by any person on
behalf of person detained or by the detained person himself. It is a judicial order
issued by Supreme Court or High Court through which a person confined may secure
his release. The writ of Habeas Corpus can be filed by any person on behalf of the
other person. In Icchu Devi v. Union of India, the Supreme Court held that in a case
of writ of Habeas corpus there are no strict observances of the rules of burden of
proof. Even a post card by any pro bono publico is satisfactory to galvanize the court
into examining the legality of detention. In A.D.M. Jabalpur v. Shivakant Shukla , it
was observed that “the writ of Habeas Corpus is a process for securing the liberty of
the subject by affording an effective means of immediate relief from unlawful or
unjustifiable detention whether in prison or private custody. By it the High Court and
the judges of that court at the instance of a subject aggrieved command the production
of that subject and inquire into the cause of his imprisonment. If there is no legal
justification for that detention, then the party is ordered to be released.”

ROLE OF WRITS IN ADMINISTRATIVE ACTION

Now as far as the role of the writs is concerned, let us go by illustration over the cases on
discretion. Conferment of discretionary powers has been accepted as necessary phenomena of
modern administrative and constitutional machinery. Law making agency legislates the law
on any subject to serve the public interest and while making law, it has become indispensable
to provide for discretionary powers that are subject to judicial review. The rider is that the
Donnie of the discretionary power has to exercise the discretion in good faith and for the
purpose for which it is granted and subject to limitations prescribed under the Act. The
Courts have retained their jurisdiction to test the Statute on the ground of reasonableness.
Mostly, the courts review on two counts; firstly whether the statute is substantively valid
piece of legislation and, secondly whether the statute provides procedural safeguards. If these
two tests are not found, the law is declared ultra vires and void of Article 14 of the
Constitution.
Beside this, Courts control the discretionary powers of the executive government being
exercised after the statutes have come to exist. Once they come into existence, it becomes the
duty of the Executive Government to regulate the powers within limitations prescribed to
achieve the object of the Statute. The discretionary powers entrusted to the different
executives of the Government play substantial role in administrative decision making and
immediately the settled principles of administrative law trap the exercise of powers. If these
discretionary powers are not properly exercised, or there is abuse and misuse of powers by
the executives or they take into account irrelevant consideration for that they are not entitled
to take or simply misdirect them in applying the proper provision of law, the discretionary
exercise of powers is void. Judicial review is excluded when it is found that executives
maintain the standard of reasonableness in their decisions. Errors are often crept in either
because they would maintain pure administrative spirit as opposed to judicial flavour or that
they influence their decisions by some irrelevant considerations or that sometimes, the
authorities may themselves misdirect in law or that they may not apply their mind to the facts
and circumstances of the cases. Besides, this aspect, they may act in derogation of
fundamental principles of natural justice by not conforming to the standard or reasons and
justice or those they do not just truly appreciate the existence or non existence of
circumstances that may entitle them to exercise the discretion.

“The Executive have to reach their decisions by taking into account relevant considerations.
They should not refuse to consider relevant matter nor should they take into account
considerations that are wholly irrelevant or extraneous. They should not misdirect themselves
on a point of law. Only such a decision will be lawful. The courts have power to see that the
Executive acts lawfully. They cannot avoid scrutiny by courts by failing to give reasons. If
they give reasons and they are not good reasons, the court can direct them to reconsider the
matter in the light of relevant matters though the propriety adequacy or satisfactory character
of these reasons may not be open to judicial scrutiny. Even if the Executive considers it
inexpedient to exercise their powers they should state their reasons and there must be material
to show that they have considered all the relevant facts.”

 Application of the Writ of Certiorari: The writ of Certiorari is basically issued

against the statutory bodies exercising judicial or quasi judicial powers. Such writ is
issued against the authorities namely the government and the courts or other statutory
bodies who have power to determine and decide the lis between the parties. In
deciding such issues if the decision making order is passed without any authority or
has passed the order in exercise of such authority or has committed an error of law
and facts the high court is empowered to correct such error of the lower court or
government authorities. Certiorari may apply when the administrative or executive
authority fails to observe their duty to act fairly with respect to the administrative
functions. The writ of Certiorari may also be issued against a subordinate tribunal
even if the decision impugned is pronounced. A leading case of Ryots of Garabandho
v. Zamindar of Parlakimedi, was the first decision on the writ of Certiorari

 Application of the Writ of Mandamus: The writ of mandamus is ordered when the
statutory authorities who entrusted with the duties fail to discharge its obligatory duty.
It may be applied when the government authorities vested with absolute powers fail to
perform their administrative and statutory duties. In Ratlam Municipal Council v.
Vardichand , on account of the public nuisance created in the area by the corporation
in not maintaining the drainage system and the dirty water stinking had clogged
around which obviously created nuisance at the hands of municipality for not
 discharging the duties under the act. As a result the residents of Ratlam municipality
moved the Sub-divisional magistrate under section 133 of Code of Criminal
Procedure, 1973 for abatement of nuisance and the court issued the directions that,
“Judicial discretion when facts for its exercise are present has a mandatory import.
Therefore when the Sub-Divisional Magistrate, Ratlam, has before him information
and evidence which disclose the presence of public nuisance, considers it lawful to
remove such obstruction. This is a public duty implicit in the public power to be
exercised on behalf of the public and is pursuant to public proceeding.”

 Application of the Writ of Prohibition: The writ of Prohibition is issued essentially

against the government or its authorities when they are not conferred with the power
or jurisdiction to decide the dispute. The court by virtue of this power restrains the
authority to exercise such powers which are not given to the authority.

 Application of the Writ of Quo Warranto: The high Court would exercise the
power of Quo Warranto against the public authority or government who acts contrary
to the provisions of the statute and restrains the authority or public servant from
usurping the public office on account of lack of qualification. It is a means of
asserting sovereign right. In Sonu Sampat v. Jalgaon Borough Municipality , “If the
appointment of an officer is illegal, every day that he acts in that office, a fresh cause
of action arises and there can be therefore no question of delay in presenting a petition
for quo warranto in which his very, right to act in such a responsible post has been
questioned.”

 Application of the Writ of Habeas Corpus: The writ of Habeas Corpus is a writ
issued in order to protect the liberty and freedom which is conceived to be very vital.
It is issued against the wrongful detention or confinement through the police
authority. By virtue of this writ the police authorities or other such statutory
authorities are empowered to bring the custody of the person who has been
wrongfully detained by the court of law. In the case of State of Bihar v. Kameshwar
Singh it was stated that, the writ of Habeas Corpus is in the nature of an order for
calling upon the person who has detained or arrested another person to produce the
latter before the court, in order to let court know on what ground he has been confined
and to set him free if there is no legal justification for the imprisonment. One of the
telling ways in which the violation of that right can reasonably be prevented and due
compliance with the mandate of article 21 secured, is to mulct its violators in the
payment of monetary compensation.

The prerogative powers of writ jurisdiction conferred by the constitution for judicial review
of administrative action is undoubtedly discretionary and yet unbounded in its limits. The
discretion however should be exercised on sound legal principles. In this respect it is
important to emphasise that the absence of arbitrary power is the first essential of the rule of
law upon which the whole constitution system is based. In a system governed by rule of law
when discretion is conferred upon the executive authorities it must be based on clearly defied
limits. Thus the rule of law from this point of view means that the discretion or the decision
must be based on some principles and rules. In general the decision should be predictable and
citizens should know where he is. If a decision is taken not on the basis of any principle or
rules then such decision is arbitrary and is taken not in accordance with the rule of law.
The Constitution is the law of the laws and nobody is supreme. Even the judges of Supreme
Court are not above law and they are bound by the decisions which are the law of the land
declared by them under the writ petitions. Thus, the constitutional remedies provided under
the constitution operate as a check and keeps the administration of government within the
bounds of law.
 10

JUDICIAL REVIEW OF ADMINISTRATIVE ACTION

Judicial review is a great weapon in the hands of judges. It comprises the power of a court to
hold unconstitutional and unenforceable any law or order based upon such law or any other
action by a public authority which is inconsistent or in conflict with the basic law of the land.

Judicial review has been declared by the courts as a part of the basic structure of the
constitutional ethos in India and also that in as much as all administrative bodies are required
to act in consonance with the legal regime and principles of natural justice in dealing in
pursuance of their actions. Broadly speaking, judicial review in India deals with three
aspects:
 Judicial review of legislative action;
 Judicial review of judicial decision; and
 Judicial review of administrative action.

The underlying object of judicial review is to ensure that the authority does not abuse its
power and the individual receives just and fair treatment and not to ensure that the authority
reaches a conclusion which is correct in the eye of law.

Judicial review of administrative action is perhaps the most important development in the
field of public law in the second half of this century. In India, the doctrine of judicial review
is the basic feature of Indian Constitution. Judicial review is the most potent weapon in the
hands of the judiciary for the maintenance of the rule of law. Judicial review is the touchstone
of the Constitution. The Supreme Court and High Courts are the ultimate interpreters of the
Constitution. It is, therefore, their duty to find out the ex tent and limits of the power of
coordinate branches, viz. executive and legislature and to see that they do not transgress their
limits. This is indeed a delicate task assigned to the judiciary by the Constitution.

Judicial review is thus the touchstone and essence of the rule of law. The power of judicial
review is an integral part of Indian Constitutional system and without it, there will be no
government laws and the rule of law would become a teasing illusion and a promise of
unreality. The judicial review, therefore, is a basic and essential feature of the Constitution
and it cannot be abrogated without affecting the basic structure of the Constitution.

In recent times, judicial review of administrative action has become extensive and expansive.
The traditional limitations have vanished and the sphere of judicial scrutiny is being
expanded.

In a recent decision, called upon the examine the validity of a Circular issued by the Director
General of Foreign Trade (DGFT) in respect of import of marbles in India, Justice S.
Muralidhar is the Delhi High Court culled out the following tests which are required to be
observed to test the validity of administrative action by the judiciary.

Two essential legal principles govern the exercise of the power of judicial review by a High
Court in matters such as these.
  The court will not sit in appeal over the ultimate decision of the administrative body.
It is really concerned about the procedure adopted in arriving at such decision. Was it
a fair, reasonable and just procedure? Were relevant materials considered and
irrelevant materials kept out? As far as the final decision is concerned, is it vitiated by
malafides or is it so arbitrary that no reasonable person would, in the circumstances,
have arrived at it.
 In policy matters, the Court will be slow to interfere. As the case law reveals, where
the question is of reasonableness of restrictions imposed through an import policy, the
degree of deference shown by the judicial wing to the executive is greater.

In Dy. Assistant Iron & Steel Controller v. L. Manichand the Supreme Court explained:
(SCC p. 337) “…… In granting licences for imports, the authority concerned has to keep in
view various factors which may have impact on imports of other items of relatively greater
priority in the larger interest of the over-all economy of the country which has to be the
supreme consideration; and an applicant has no absolute vested right to an import licence in
terms of the policy in force at the time of his application because from the very nature of
things at the time of granting the licence the authority concerned may often be in a better
position to have a clearer over-all picture of the various factors having an important impact
on the final decision on the allotment of import quota to the various applicants.”

It was observed in Liberty Oil Mills v. Union of India (SCC p.477) “….. The import policy of
any country, particularly a developing country, has necessarily to be tuned to its general
economic policy founded upon its constitutional goals, the requirements of its internal and
international trade, its agricultural and industrial development plans, its monetary and
financial strategies and last but not the least the international political and diplomatic
overtones depending on 'friendship, neutrality or hostility with other countries' (Glass
Chotans Importers and Users' Association v. Union of India [1962]1SCR862 . There must
also be a considerable number of other factors which go into the making of an import policy.
Expertise in public and political, national and international economy is necessary before one
may engage in the making or in the criticism of an import policy. Obviously courts do not
possess the expertise and are consequently incompetent to pass judgment on the
appropriateness or the adequacy of a particular, import policy. But we may venture to assert
with some degree of accuracy that our present import policy is export oriented. Incentives by
way of import licences are given to promote exports…..”

In M.P. Oil Extraction v. State of M.P. it was held (SCC, p.611) “…….The executive
authority of the State must be held to be within its competence to frame policy for the
administration of the State. Unless the policy framed is absolutely capricious and, not being
informed by any reason whatsoever, can be clearly held to be arbitrary and founded on mere
ipsi dixit of the executive functionaries thereby offending Article 14 of the Constitution or
such policy offends other constitutional provisions or comes in conflict with any statutory
provision, the Court cannot and should not out step its limit and tinker with the policy
decision of the executive functionary of the State. This Court, in no uncertain term, has
sounded a note of caution by indicating that policy decision is in the domain of the executive
authority of the State and the Court should not embark on the unchartered ocean of public
policy and should not question the efficacy or otherwise of such policy so long the same does
not offend any provision of the statute or the Constitution of India. The supremacy of each of
three organs of the State i.e. legislature, executive and judiciary in their respective field of
operation needs to be emphasised. The power of judicial review of the executive and
legislative action must be kept within the bounds of constitutional scheme so that there may
not be any occasion to entertain misgivings about the role of judiciary in out stepping its limit
by unwarranted judicial activism being very often talked of in these days. The democratic set
up to which the polity is so deeply committed cannot function properly unless each of the
three organs appreciates the need for mutual respect and supremacy in their respective field.”

In Ugar Sugar Work s Limited v. Delhi Administration the Supreme Court observed thus
(SCC p. 643) “……. It is well settled that the Courts, in exercise of their power of judicial
review, do not ordinarily interfere with the policy decisions of the executive unless the policy
can be faulted on grounds of mala fide, unreasonableness, arbitrariness or unfairness etc.
Indeed, arbitrariness, irrationality, perversity and mala fide will render the policy
unconstitutional. However, if the policy cannot be faulted on any of these grounds, the mere
fact that it would hurt business interests of a party, does not justify invalidating the policy. In
tax and economic regulation cases, there are good reasons for judicial restraint, if not judicial
deference, to judgment of the executive. The Courts are not expected to express their opinion
as to whether at a particular point of time or in a particular situation any such policy should
have been adopted or not. It is best left to the discretion of the State.”

It should be remembered that the object and scope of judicial review of administrative action
is different from that of appeal. The object of judicial review of administrative action by the
ordinary courts is to keep the administrative authorities within the bounds of their powers
under the law. Appeal, on the other hand, means that the superior administrative tribunal or
court to whom appeal lies under the law, has the power to reconsider the decision of the
inferior tribunal on the merits. Appeal, however, is a creature of statue and there is no right of
appeal unless there is a specific statutory provision creating that right.

The power of revision is usually placed at the hands of the highest authority, e.g., the State
Government, to correct any illegality or irregularity in the proceedings before the inferior
authorities. There are:
 Sometimes the statue expressly states that the power of revision may be exercised suo
motu as well as on the application of the party aggrieved;
 Sometimes the statue only authorizes the superior authority to use his power or
revision suo motu or of his own motion, e.g., original s. 33 of the Income-tax Act, 1
922. In such a case the party aggrieved has no right to relief and the revisional
authority has no duty to perform, on the application of such party ;
 Difficulty of interpretation arises where neither the words ‘suo motu’, nor ‘on
application’ are used by the statue.
 11

SUGGESTED FORM OF ADMINISTRATIVE LAW FOR INDIA

The Administrative Law in strict sense of positive law is not law. It is a conglomeration of
constitutional provisions, statutes, decisional law, rules, regulations, circulars, memoranda
etc. It is concerned with various kinds of government, local authorities and public
corporations of government agencies, both at the Centre and at the States and locally with the
interplay of ideas and control between these several agencies and the relationships between
the several agencies and the general public or the private citizens. It is concerned with the
preservation of order, the welfare of the citizen and the rights of the individual as against the
government of the country and also with the machinery by which such matters are
implemented. Thus, the Indian administrative law in the codified form may consist of the
following topics of laws:

 Natural justice as propounded by the Supreme Court of India and accepted by the
general body politic to the country.

 General guidelines issued for the officers and staff while arriving at a decision or
making a suggestion in the file or note.

 Law regarding accountability of the bureaucracy for delay in decision-making or

omission in decision-making as because commission and omission are equally
punishable before law. The member of public bureaucracy should also be personally
liable to the government if the government suffers pecuniary loss due to his latches or
malafide decisions. He should be asked to make good the financial loss to the
government in terms of penalty, fine or compensation paid by government staff or
officer. There will also be appellate fora to reconsider such pecuniary fine and
penalty, which will consist of bureaucrats only. This will be like a regulatory
authority having specialized persons as members. This will eliminate arbitrariness or
subjectivity against the government employee. This function can be done by the
Administrative Tribunals already constituted. Twenty-first century belongs to
information technology. The administration, which could not keep peace, will be
redundant.

 The exceptions in the Contempt of Courts Act should be enlarged and classified.
Notice for contempt should be ensured to be delivered personally to the condemner or
to his personal assistant or Personal Secretary (PA or PS). Motive should be a good
defence in criminal contempt. In case of Small Civil contempt, the fines should be
realized personally from the condemner if his personal negligence or ill intention is
proved over and above the collective decision mechanism. Contempt power should
not be used as a response to failure to implement judgments. If it is so, all in chain
should be called for contempt including Ministers. As civil servants are liable for
contempt of courts, the subordinate judges should also be liable for not following the
judgments or orders of the Superior Courts on equal footing. Truth must be made a
defence to the exercise of the power of contempt of court as recommended by the
Constitution Review Commission headed by Justice (retd.) Venkatchallaiah.
  A Commission should be set up at the Central and State Level to regulate transfers,
promotions and service conditions of bureaucrats to make them fully transparent and
objective.

 In fructuous tiers of appeal like many appellate tribunals should be discontinued since
the decision of State Administrative or Central Administrative Tribunals are subject to
the appellate jurisdiction of the High Court. In fact, the appeal from Administrative
Tribunals should lie to the Supreme Court to ensure efficacy of the Administrative
Tribunals and to reduce arrears of cases in High Courts.

 Judicially recognized dimensions of Article 21 like the right of survival, right to

shelter, right to a clean and healthy environment and well recognized human rights
must be made enforceable rights so that bureaucrats at all levels are well aware of
ramifications of their decisions.

 Important constituents of right to information should be part of the Administrative

Law of India.

 Constitutional Amendment or Bill after passing by the legislatures should come into
force within the specified time periods and should be a part of legislation.

 The core powers should not be delegated. The appropriate authority should publish
draft of delegated legislation at least 30 days before to receive comments and
suggestions from the public. This will bring about awareness of the delegated
legislation and will generate public debate. And then, it should be placed before the
legislature in due time.

 There should be a constitutional body to investigate instances of corruption. All high

functionaries including the Prime Minister like in LokPal Bill, should be brought
within its ambit. The punishment in the form of pecuniary penalty fine through
administrative body should be so much in quantum as the corruption will no longer be
a profitable venture.

 Apart from body of law, the administrative law should also contain general code of
conduct, which will be generally and equally applicable to all members of the public
bureaucracy irrespective of their rank or position in the government. This code of
conduct will also help to cover unforeseen actions, actions in unforeseen or
emergency situations, commissions or omissions by the bureaucrat.

This whole body of law, rules and guidelines will help the members of public bureaucracy to
enlighten themselves regarding their rights, duties and decision-making process in the
bureaucratic organization which is intricately linked with the progress of the society or the
nation. They will treat it like their Ramayana or the Bible. Thus, the chances of their bona
fide errors in decision-making will be less. Many of the cases will not go to law courts
delaying the matters further for decision. Last but not the least, public will be greatly
benefitted by the just and fair decision-making process at various levels of the bureaucracy
and will place their faith and trust in the government bureaucracy.
 12

CONCLUSION

The Law Commission of India constituted in 1955 observed, “The vast amount of Legislation
which has been enacted by the Union and the States, a great deal of which impinges in a
variety of ways on our lives and occupations. Much of it also confers large powers on the
executive. The greater, therefore, is the need of ceaseless enforcement of the rule of law, so
that the executive may not, in a belief in its monopoly of wisdom in its zeal for administrative
efficiency, overstep the bounds of its power and spread its tentacles into the domains where
the citizens should be free to enjoy the liberty guaranteed to him by the constitution.”

From the above citation it can be said that the since the independence till today very less
efforts have been made to evolve a mechanism to regulate the functions of administrative
authorities so as to make them in consonance with constitutional freedom guaranteed to each
individual. Without some kind of power to control administrative authorities there is a danger
that they may commit excesses and degenerate into arbitrary bodies.

There has not been so far much conscious effort on the part of Government and Parliament in
this Country to develop a viable system of administrative law drawing a balance between
personal rights and freedoms, on the one hand, and administrative needs and exigencies of a
developing social welfare state, on the other.

In England and USA, such attempts have been made from time to time, but in India attempts
in this direction are, by and large, lacking so far and, therefore, a huge burden has been cast
on the judiciary to give shape to the principles by which administrative functioning and
behaviour can be regulated keeping in view the twin objectives mentioned above. Since
independence it has become necessary to re-condition and develop the principles of
administrative law, so as to meet the needs of a democratic system with the demands made on
a country to develop fast in to socio-economic sphere.

Since commencement of the constitution the most commonly used technique to bring an
administrative action within the cognizance of the courts has been the writ system (Art. 32 &
226). Innumerable cases have taken place in this area and hundreds of cases continue to be
filed against the administration every year for seeking its redress. The writ jurisdiction
conferred on the High Court’s by Art. 226 can be invoked to enforce not only fundamental
rights but a non-fundamental right as well. The High Courts and Supreme Court step in to
correct the error where the rules framed under the governing law do not conform to the law or
the action of the administrator is not in accordance with the administrative rules or are against
the fundamental axiom of justice and fair-play.

However remedy is available at the disposal of the court of law. No fixed, codified laws are
been framed to decide the dispute between individual and public official. Also the question
remains that-In what cases do the courts feel that redress to complainants is called for? -
Provisions which may be invoked for the purpose of bringing matters before the court? – The
types of relief which the court may give? – The grounds on which, & the conditions subject
to which, the various reliefs may be given by them? As well as the question, whether, a
particular administrative action infringes a fundamental right or not and therefore, whether a
petition under Art. 32 to challenge it, is maintainable or not, down at times raise complex
issue. The courts have also, however, evolved self imposed restrictions. Matters which effect
policy and require technical expertise, the High court would leave such matters for decision
to those qualified to redress this issue.

The Government of India are contemplating to set up administrative tribunals on the French
Model for disposal of cases relating to fiscal and labour laws.

Droit administratif:

Droit administratif is the name given to the Administrative Law prevailing in France. In this
system the judicial power is kept separate from administrative power. A person seeking any
redress against the administration has to go to an administrative court (Conseil d’Etat) and
not to an ordinary court. Thus the system of Droit administratif in France has resulted in non-
interference by the Courts in the working of administrative authorities.

Need for Establishment of a similar Institution in India:

It is true that the establishment of an institution similar to Conseil d’Etat in France may not
be quite suited to the conditions in India. However it is necessary to develop administrative
courts in the lines of the French Conseil d’Etat would be necessary because that will serve as
counterpoise to the arbitrary action of the administration.

The creation of separate hierarchy of administrative courts brings about a clear division
between the spheres of civil and administrative law. There are separate law reports in both the
branches of law. In India there is expansion of the public sector and the State is assuming
increasing control over the life of the community. There is a move for building an
equalitarian society. In this context, it is desirable that India should develop a well ordered
system of administrative law which may be able to absorb the new relations of public into
this legal system.

The Indian administrative law while basically common law oriented as the Administration is
subject to judicial control, has also imbibed some features of droit adminstratif as is evident
from the increasing tribunalisation of the decision making process.

View on Lokpal (Ombudsman system in India):

Lokpal system is not suitable to India, following are some of the reasons. The primary idea of
the Ombudsman in the Scandinavian and the Common law countries where the institution has
been introduced is to oversee maladministration e.g., negligence, delay, inefficiency, bias,
abuse of power and to make the administration more humane and accountable.

However in India all these aspects are lacking. The system of Lokpal is meant only for
investigating into charges of corruption against public officers at high offices.

Maladministration which is the primary concern of the ombudsman in other countries was
thus proposed to be kept out of the purview of the Indian ombudsman. This is not proper. It
has been suggested that, so far, the institution of ombudsman has succeeded only in countries
with small population and that in a populous country like India, the ombudsman may be
overwhelmed with complaints of maladministration and allegations against the
administration.

What to do?

There is a great need for an institution, independent of the executive, to supplement the
system of judicial control over administrative action in view of the limitation of judicial
review so as to reduce the sense of grievance presently nursed by the people against the
administration.

In the long run, however, it is necessary to improve the tribunal system in India so that
tribunal can provide an effective review-mechanism of administrative decisions. To the
extent, the need to resort to the Lokpal would be reduced. Also it has been it has been the
experience of the ombudsman in other countries that many grievances against the
administration are arises because of the failure of the administration to give reasons for the
decisions taken by it and that if reasons are given as a matter of course then the number of
complaints may be reduced. It will be a great advantage to the individual affected by an
administration, were to disclose to him the reasons for acting in the way it is acting. He can
then decide whether he should challenge the action or not in a court of law.

Many challenges to administrative action are made at present because the individual affected,
being ignorant of the reasons, does not know whether the action suffers from some flaw or
not.

In the area of quasi judicial adjudication, an obligation to make speaking order has come to
be imposed on the concerned bodies. A similar development is a desideratum in the area of
administrative powers. The Conseil d’Etat in France has gone far in the direction of requiring
administrative decisions to contain reasons.

Therefore, if the administration in India were made to adopt the practice of furnishing reasons
for its decision to a person feeling aggrieved by it, then the number of complaints flowing to
the Lokpal (ombudsman) may be reduced and become manageable.

In any case, there is a great need to supplement the existing mechanism to supervise
administration in India, and the experiment of the ombudsman is worth a trial. It is bound to
result in the improvement of administrative individuals dealing with the administration.
 SELECT BIBLIOGRAPHY

BOOKS REFERRED

 Administrative Law facing the future: old constraints and new horizons - Edited by
Peter Leyland and Terry Woods

 Introduction to Administrative Law - by Professor Neil Hawks and Neil Papworth

 Lectures on Administrative Law – by C.K. Takwani

 Administrative Law – by Professor G.C.V. Subba Rao

 The Indian Administrative Law – by Mangal Chandra

 Judicial control of Administrative Action – by B.P. Banerjee

WEBLINKS REFERRED

 en.wikipedia.org/wiki/Law_of_India
 www.lexuniverse.com › General Public User
 www.hrdiap.gov.in/86FC/week.../Administrative%20Law.pdf
 persmin.gov.in/.../Administrative%20Law%20N%20DLM.pdf
 www.legalquest.in/.../law...administrative-law/403-growth-of-a...
 www.legalindia.in/faqs-administrative-laws-india
 www.legalserviceindia.com/.../l402-Role-Of-Writs-In-The-Ad...
 kalyan-city.blogspot.com/.../sources-of-administrative-law-in-i...
 www.manupatrafast.com/.../PopOpenArticle.aspx?...%20Administrative%20Law –
 www.lawisgreek.com/tag/india-administrative-law
 www.du.ac.in/fileadmin/DU/.../5112_Law_4_AdminstrativeLaw.pdf
 kalyan-city.blogspot.com/.../function-of-administrative-law-in....
 www.ag.gov.bc.ca/ajo/down/administrative_law.pdf
 www.mightylaws.in/529/growth-administrative-law-india
 kalyan-city.blogspot.com/.../importance-of-administrative-law...
 www.lawisgreek.com/tag/issues-administrative-importance
 publicadministrationtheone.blogspot.com/.../administrative-law-meaning-scope-
and.html