Karandeep singh chawla

Syllb 7

Family law

nature and scope of administrative law

Introduction

The basic and traditional functions of the state are those of

maintenance of law and order and of collecting taxes from the
public. However during the last century, there has been a
tremendous increase in the functions of the State. This increase
in powers and functions of State has made the relationship of the
administrative authorities and the people have very complex. In
order to regulate these complex relations, some law is necessary,
which may bring about regulatory certainty and may check at the
same time the misuse of powers vested in the administration.
This law is known as ‘Administrative law’.

What is Administrative Law

The expression ‘Administrative Law’ may mean two different

things, namely –

(a) law relating to administration, and

(b) law made by the administration.

The latter would itself be of two kinds. Firstly, it may be rules,

regulations, orders, schemes, bye-laws, etc., made by the
administrative authorities on whom power to make such
subordinate legislation is conferred by a statute. This may be
called ‘rule-making’. Secondly, certain administrative authorities
have power to decide questions of law and/ or fact affecting
particular person or persons generally, i.e., adjudication. Most of
such powers are exercised quasi-judicially. Such decisions apply
a statute or administrative policy and instructions to specific
cases. In doing so they create a body of administrative law.

Meaning and Nature of Administrative Law

It is indeed difficult to arrive at a specific, precise and satisfactory
definition of administrative law. Many jurists have made attempts
to define it, but none of the definitions have completely
demarcated the nature, scope and content of administrative law.
Either the definitions are too broad and include much more than
what is necessary or they are too narrow and fail to include all
the essential ingredients.

In the simplest sense, administrative law refers to that branch of

the law which is concerned with the composition of powers,
duties, rights and liabilities of the various organs of the
Government.

Some important definitions of Administrative Law are as follows –

SIR IVOR JENNINGS

“Administrative law is the law relating to the administration. It

determines the organisation, powers and duties of the
administrative authorities.”

This is the most widely- accepted definition.

A.V. DICEY

“Administrative law is that portion of a nation’s legal system

which determines the legal status and liabilities of all State
officials, which defines the rights and liabilities of private
individuals in their dealings with public officials and which
specifies the procedure by which their rights and liabilities are
enforced.”

According to this definition, administrative law consists of three

aspects –

1. the legal status and liabilities of all State officials

2. the rights and liabilities of private individuals in their

dealings with public officials, and

3. the procedure by which their rights and liabilities are

enforced
K.C DAVIS

“Administrative law is the law concerning the powers and

procedure of administrative agencies, including especially the law
governing judicial review of administrative action.”

According to Davis, an ‘administrative agency’ is a governmental

authority, other than a court and a legislature which affects the
rights of private parties either through administrative
adjudication or rulemaking.

Nature of Administrative Law

Administrative Law is a branch of public law. Public law is that

part of law which governs relationships between individuals and
the government, and those relationships between individuals
which are of direct concern to society. Administrative law deals
with the relationship between individuals and the government. It
is mainly concerned with the control of the powers of the
administrative authorities.

The main objective 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 controls the administrative authorities so that

they may not become despotic administrative law aims at
maintaining a balance between administrative powers and the
individual liberty.

However a distinction must be drawn between administrative law

and constitutional law.

Administrative law is closely connected with constitutional law. It

has even been called as a branch of the Constitutional Law.
However at present administrative law has assumed the status of
an independent subject. Administrative law is mainly concerned
with the executive branch of the Government whereas the
Constitutional Law gives equal importance to the Legislative,
Executive as well as the Judiciary.

Scope of Administrative Law

The literature on administrative law, presents the reader with

considerable diversity of opinion. For some, it is the law relating
to the control of powers of the government and for the others it is
the law made by the administration. Yet others highlight the
principal objective of administrative law as ensuring
governmental accountability, and fostering participation by
interested parties in the decision making process.

The definition of administrative law given by JAIN AND JAIN

presents an apt example of the scope of administrative law.
Based on their definition, the scope and contents of
administrative law can be divided into four aspects –

1. Composition and the powers of administrative authorities.

2. Methods of control of powers of administrative authorities

3. Procedure to be followed by these authorities in exercising

their powers

4. Remedies available to a person through judicial and other

means in case of violation of his rights by these administrative
authorities
The powers and functions of administrative authorities can
be divided into three divisions –

a. Administrative

b. Quasi-judicial

c. Quasi-legislative

a. Administrative

Administrative powers and functions are the residue of the

governmental powers and functions that remain after legislative
and judicial powers and functions are taken away. It can further
be divided into discretionary and ministerial functions.
Discretionary powers and functions are those wherein the
administrative authorities enjoy the opportunity to make a choice
out of available alternatives.

b. Quasi-judicial

An act or function is treated as quasi-judicial act or function

when it has some trappings of judicial function. While exercising
quasi-judicial functions, the administrative authorities determine
a matter affecting the rights of any person. Such quasi-judicial
acts are subject to the principles of natural justice and the writ of
certiorari.

c. Quasi-Legislative

Although the Constitution of India empowers Legislature to make

laws for the country, but keeping in mind various multifarious
activities of a welfare State, it is not possible for the legislature to
perform all the functions. Therefore the administrative
authorities are conferred with quasi-legislative powers and
functions. The development of the legislative power of the
administrative authorities in the form of delegated legislation
occupies a very important place in the study of administrative
law.

Historical development

In India administrative law was in existence in India even in

ancient times. Under the Mauryas and Guptas several centuries
before Christ, there was well organised and centralised
administration in India. The rule of dharma was observed by the
kings and administrators and nobody claimed any exemption
from it.

With the establishment of the East India Company and the

beginning of the British Rule in India, the powers of the
government had increased. Many Acts, statutes and legislations
were passed by the British Government regulating public safety,
health, morality, transport and labour relations.

In the 20th century, social and economic policies of the

government had significant impact on private rights of citizens,
e.g. housing, employment, planning, education, health, pension,
manufacture of goods, etc. Traditional legislative and judicial
system could not effectively solve these problems. It resulted in
increase in delegated legislation as well as tribunalisation.
Administrative law thus became a live subject.

Reasons for Growth of Administrative Law

1. Change in role of State

There is a radical change in the philosophy of the role played by

the State. The negative policy of maintaining “law and order” and
of “laissez faire” has radically changed. The State has not
confined its scope to the traditional and minimum functions of
defence and administration of justice, but has adopted the
positive policy and as a welfare state has undertaken to perform
varied functions.

2. Failure of Judiciary

The judicial system was proved to be inadequate to decide ad

settle all types of disputes. It was slow, costly, inept, 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. therefore, industrial tribunals and labour courts were
established which possessed the techniques and expertise to
handle these complex problems.

3. Inadequate legislative action

The legislative process was also inadequate. It had no times and

technique to deal with all the details. It was impossible for the
legislature to lay down detailed rules and procedures, and even
when detailed provisions were laid down by the legislature, they
were found to be defective and inadequate.

Therefore, it was necessary to delegate some powers to the

administrative authorities.

4. Speedy Justice

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 courts to decide cases
without formality and technicality. Administrative tribunals are
not bound by rules of evidence and procedure, and they can take
a practical view of the matter to decide complex problems.

5. Scope for experimentation

There scope of experimentation in administrative process. Here,

unlike in 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 defective, can be
altered or modified within a short period.

Thus, legislation is rigid in character, while, administrative

process is flexible.

Conclusion

The administrative process has come to stay and it has to be

accepted as a necessary evil in all progressive societies,
particularly in a welfare state, where many schemes for the
progress of society are prepared and administered by the
government. The execution and implementation of this
programme may adversely affect the rights of citizens. The actual
problem is to reconcile social welfare with the rights of 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.”