Contents

Introduction...........................................................................................................2
Reasons for Expansion of Administrative Law....................................................3
Sources of Administrative Law............................................................................5
General..................................................................................................................5
The Constitution of India......................................................................................6
Statutes..................................................................................................................7
Ordinances............................................................................................................8
Delegated Legislation.........................................................................................10
Case Laws...........................................................................................................11
Reports of Committees and Law Commission...................................................12
Administrative quasi-legislation.........................................................................15
Conclusion..........................................................................................................16
Bibliography & Acknowledgement....................................................................17
Introduction

Administrative Law is the law relating to the administrative operation of

government. It deals with the powers and duties of administrative authorities,

the procedure followed by them in exercising the powers and discharging the

duties and the remedies available to an aggrieved person when his rights are

affected by any administrative action. There were various reasons for the

expansion of administrative law like the change in the concept of the

government, the inadequacy of judicial system, evolution of socialistic pattern

of society etc. This article will cover how Administrative Law was built so

extensively in the country to be in a position in which it is today.

Reasons for Expansion of Administrative Law

 The rapid growth of administrative law during the twentieth century owes

much to the change in the concept of role and function of the modern

government. The doctrine of laissez faire has given place to the doctrine

of welfare state and this has led to the proliferation of administrative

powers and functions.

 It is demanded by the people that the government must solve their

problems rather than merely define their rights. It is felt that the right of

equality under the Indian Constitution will be a sterile right unless the

government comes forward to actively help the weaker sections of the

society to bring about equality in reality.

 The regulation of the patterns of ownership, production and distribution is

considered the responsibility of any good government to ensure the

maximum good of the maximum number. This again has led to the

growth of administrative process and administrative law.

 A welfare state has necessarily to undertake legislation on an ever

widening front, if the ultimate aim of a socialistic pattern of society

operating within the domain of the rule of law is to be evolved by

democratic process.
 The inadequacy of the traditional type of judicial system to give that

quality and quantity of performance which is required in the twentieth

century for the functioning of welfare and functional government is the

biggest single factor which has led to the growth of administrative

process and law. Like medicine, in law there is a shift from punitive to

preventive justice. Litigation is no more considered a battle to be won but

a disease to be cured. Inadequacy of the traditional type of judicial

process to respond to this new challenge has led to the growth of

administrative adjudication.
Sources of Administrative Law

General
Source means the origin of the material content of rule or the formal stamp of

authority as law. With the view to control administrative operation of the

government, it is necessary to know the sources of administrative powers. In

common law countries like India, there is no droit administratiff in the sense of

there being a different or separate system, and administrative law is a part of the

‘ordinary law’ of the land. Sources of American Administrative Law are

common law, statutes and implied powers of the administration.

As regards India, the Administrative Law forms part of the ordinary law of the

land. Therefore, in this branch of public law we are concerned with the

Constitution, statutes, subordinate legislation and case law. However,

administrative law is very closely allied to the study of the government. Ideas

about government change and have an influence on law. It is therefore, that

administrative law is concerned with the study of documents, orders and

decisions which are not true sources of law. The main sources of administrative

law in India are as follows:

The Constitution of India

India has a written Constitution which is the supreme law of the land. Being the

grundnorm of the legal system of the country, it conditions and overrides all

legislative and administrative actions. Besides providing for functional

organisation and consequential growth in administrative process, the

Constitution has also provided for an elaborate control mechanism. The

Constitution demarcates the legislative and administrative power of the Union

and the States conferring on the courts, the power to review legislative and

administrative action and adjudge their constitutionality. All the legislative

actions of the administration have been expressly brought by the Constitution

within the purview of Article 13 by defining ‘Law’ as including ‘order’, ‘bye-

law’, ‘rule’ and ‘notification’ etc. having the force of law. All these features of

the Constitution influence and shape the nature and content of administrative

law in India.
Statutes
Statute is the principal source of administrative power. Statute emanates from

the Constitution. Under the Constitution, law-making power has been given to

Parliament and State Legislatures. Administration is given powers by statutes.

All the statutes have to conform to the constitutional patterns. Exercise of

administrative powers has to conform to statutory patterns. In England as well

in the United States, a good deal of legislation has been enacted to provide for

administrative procedures, composition and procedures of tribunals, liability of

state and its bureaucracy and for strengthening the control on the exercise of

administrative powers.
Ordinances
The ordinance-making power relates to the legislative powers of the Chief

Executive in Union and States. Article 123 of the Constitution of India which

deals with the legislative powers of the President empowers the President to

promulgate ordinances during the recess of Parliament, and Article 213 confers

a similar power on the Governor to promulgate ordinances during the recess of

state legislature.

These provisions have secured considerable flexibility both to the Union and to

the State to enact laws to meet emergent situations as also to meet

circumstances created by laws being declared void by courts of law. Grave

public inconvenience would be caused if an Act, like the Bombay Sales Tax Act,

being declared void, no machinery existed whereby a valid law could be

promptly promulgated. However, it must be remembered that under the Indian

Constitution a validating Act must stand the test of Part III of the Constitution.

Further it must be noted that the Ordinance making power of the Chief

Executive is not unlimited or unbridled. It is provided under the Constitution

that the President or the Governor, as the case may be, can issue ordinances on

the advice of Council of Ministers. For the confirmation of ordinance approval

of the Houses is required. In this way, the power is subjected to legislative

control.
The question whether the ordinance can be challenged if made on collateral

grounds remains open in view of the Supreme Court decision in R.C. Cooper v.

Union of India which is also known as the Bank Nationalisation case. Will the

same test, as advocated in the obiter by the court apply for a declaration of

emergency. The Madras High Court has, however, held on April 3, 1993 that the

dismissal of Patwa Government under Article 356 was invalid because the

emergency power under that Article was exercised mala fide. This is a landmark

decision which opens a new chapter in the history of public law review. Later on

in S.R. Bommai v. Union of India, the Supreme Court has held that

proclamation of emergency on ground of failure of constitutional machinery

under Article 356 is subject to judicial review. Accordingly, Presidential Rule in

certain states was held to be unconstitutional.

Delegated Legislation

Law-making is the primary function of the Legislature. Yet, in no country does

the legislature monopolise the whole of legislative power. A good deal of

legislation is made by the administration under the powers conferred by the

Legislature. This type of administrative legislation is called delegated or

subordinate legislation. The delegated legislation is subject to Judicial and

Parliamentary control. In this way, delegated legislation is an important source

of law.
Case Laws

The basis of Indian Administrative Law is judge-made law. This means that it is

subject to all the strengths and frailties of judicial law-making. In the absence of

special administrative courts, new norms of administrative law have been

evolved. The function of courts is two-fold, regulative and formative. The rules

laid for controlling the actions of administration by various devices namely,

reasoned decisions, quasi-judicial function, rules of natural justice, for instance,

rule of hearing and rule against bias have been developed. The new principles

laid down form guidelines for the future course of action.

Reports of Committees and Law Commission

The phenomenal explosion of scientific, industrial and technological know-how

placed a counter-balancing responsibility on the functional government to

control the forces which science and technology had unleashed. Modernisation

and technological developments had created crucial problems such as cultural

conflicts, haphazard urbanisation, ruthless exploitation of natural resources,

environmental pollution, concentration of economic power, staggering inflation,

accelerated smuggling, etc. which a modern government confronts with. These

multidimensional problems with a varied social, economic and political

ramifications demanded growth of administration and law regulating

administration. In such a socio-economic context the increasing powers of

administration attracted the attention of the jurists. A former Lord Chief Justice,

Lord Hewart published a famous book, The New Despotism, in 1929 which

purported to expose the extent to which the Civil Service and “bureaucracy”

were then alleged to be the true rulers of the country. Two particular factors

were selected for attack on the growth of administrative process:

(i)- The extent to which the executive was given freedom by Parliament to make

delegated legislation, and

(ii)- Complementary evil of freedom from control by the courts over the

exercise of executive discretions by reason of extremely wide powers given by

the legislature. All this led to the setting up of the “Committee on Ministers’

Powers” which is commonly known as Donoughmore Committee. The

Committee submitted its report in 1932. In the opinion of the Committee, three

main areas required attention, namely,

1. The inadequate provision made for publication and control of subordinate

legislation;

2. The lacuna in the Law caused by the inability of a subject to sue the

Crown in tort; and

3. The extent to which the control and supervision of administrative

decisions were passing out of the hands of the courts ad were being

entrusted to specialist tribunals and inquiry without effective control. The

Statutory Instruments Act, 1946 was passed concerning the control of

subordinate legislation. The Crown Proceedings Act, 1947 was passed

assimilating the Crown’s tort liability to that of an individual of full age

and capacity.

The third subject pointed out by the Committee had, however, to wait for longer

before the action was taken. In 1955 a new committee was set up to consider the

question of tribunals and inquiries generally; their Report known as Franks

Report was issued in 1957.

As a result of this Report, the Tribunals and Inquiries Act, 1958 was enacted.

This statute set up a permanent Council on Tribunals and laid down certain

general principles of procedure to be followed by administrative tribunals and

inquiries, and also provided for their supervision by the courts of law. In India,

there is Lok Sabha Committee on Subordinate Legislation, and Rajya Sabha

Committee on Subordinate Legislation. These committees were established to

scrutinize and closely examine the delegated legislation made by the Executive.

Most valuable reports have been submitted by these committees which play an

important role in evolving Indian Administrative Law. Parliamentary control is

exercised over delegated legislation through these committees in an effective

way because the administration takes necessary steps on their recommendations

to avoid discussion in Parliament. Law Commission has gone into the question

of grassroots tribunals, which will have public participation.

Administrative quasi-legislation

“Administrative quasi-legislation” is a term coined for administrative directions

or instructions. An increasing modern trend is the issuing of directions or

instructions by the functional government at work. In any intensive form of

government, the desirability and efficacy of administrative directions issued by

the superior administrative authorities to their subordinates cannot be dispensed

with. “Administrative Direction” is a most efficacious technique for achieving

some kind of uniformity in the exercise of administrative discretion and

determination of policy and its uniform application. These instructions also

serve the purpose of providing desired flexibility to the administration devoid of

technicalities involved in rule-making process.

Conclusion

Thus, Administrative Law is the best designation for the system of legal

principles which settles the conflicting claims of executive and administrative

authority on the one side and of the individual and private right on the other.
Bibliography & Acknowledgement

I Ankit Jain of class S.Y. L.L.B have done this project with the help of my

Parents, Teachers, Friends and Family.

I used:

Note pad

Pen

Google Chrome

Site:

https://blog.ipleaders.in/various-sources-of-administrative-law/