How does Administrative Law work

how is administrative law created and how to cite administrative law decisions and how to answer administrative law problem questions
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Dr.MattWood,United States,Teacher
Published Date:25-07-2017
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Module – 1 1 Administrative Law : Conceptual Analysis Issues and Prospects Introductory :- dministrative law is the bye-product of the growing socio-economic functions of the State and the increased powers of the government. Administrative law has become very necessary in the developed A society, the relationship of the administrative authorities and the people have become very complex. In order to regulate these complex, relations, some law is necessary, which may bring about regularity certainty and may check at the same time the misuse of powers vested in the administration. With the growth of the society, its complexity increased and thereby presenting new challenges to the administration we can have the appraisal of the same only when we make a comparative study of the duties of the administration in the ancient times with that of the modern times. In the ancient society the functions of the state were very few the prominent among them being protection from foreign invasion, levying of Taxes and maintenance of internal peace & order. It does not mean, however that there th was no administrative law before 20 century. In fact administration itself is concomitant of organized Administration. In India itself, administrative law can be traced to the well-organized administration under the Mauryas and Guptas, several centuries before the Christ, following through the administrative, system of Mughals to the administration under the East India Company, the precursor of the modern administrative system. But in the modern society, the functions of the state are manifold, In fact, the modern state is regarded as the custodian of social welfare and consequently, there is not a single field of activity which is free from direct or indirect interference by the state. Along with duties, and powers the state has to shoulder new responsibilities. The growth in the range of responsibilities of the state thus ushered in an administrative age and an era of Administrative law. The development of Administrative law is an inevitable necessity of the modern times; a study of administrative law acquaints us with those rules according to which the administration is to be carried on. Administrative Law Module – 1 4 has been characterized as the most outstanding legal development of the 20th-century. Administrative Law is that branch of the law, which is concerned, with the composition of powers, duties, rights and liabilities of the various organs of the Government. The rapid growth of administrative Law in modern times is the direct result of the growth of administrative powers. The ruling gospel of the 19th century was Laissez faire which manifested itself in the theories of individualism, individual enterprise and self help. The philosophy envisages minimum government control, maximum free enterprise and contractual freedom. The state was characterized as the law and order state and its role was conceived to be negative as its internal extended primarily to defending the country from external aggression, maintaining law and order within the country dispensing justice to its subjects and collecting a few taxes to finance these activities. It was era of free enterprise. The management of social and economic life was not regarded as government responsibility. But laissez faire doctrine resulted in human misery. It came to be realized that the bargaining position of every person was not equal and uncontrolled contractual freedom led to the exploitation of weaker sections by the stronger e.g. of the labour by the management in industries. On the one hand, slums, unhealthy and dangerous conditions of work, child labour wide spread poverty and exploitation of masses, but on the other hand, concentration of wealth in a few hands, became the order of the day. It came to be recognized that the state should take active interest in ameliorating the conditions of poor. This approach gave rise to the favoured state intervention in and social control and regulation of individual enterprise. The state started to act in the interests of social justice; it assumed a “ positive” role. In course of time, out of dogma of collectivism emerged the concept of “ Social Welfare State” which lays emphasis on the role of state as a vehicle of socio-economic regeneration and welfare of the people. Thus the growth of administrative law is to be attributed to a change of philosophy as to the role and function of state. The shifting of gears from laissez faire state to social welfare state has resulted in change of role of the state. This trend may be illustrated very forcefully by reference to the position in India. Before 1947, India was a police state. The ruling foreign power was primarily interested in strengthening its own domination; the administrative machinery was used mainly with the object in view and the civil service came to be designated as the “steel frame”. The state did not concern itself much with the welfare of the people. But all this changed with the advent of independence with the philosophy in the Indian constitution the preamble to the constitution enunciates the great objectives and the socio- economic goals for the achievement of which the Indian constitution has been th conceived and drafted in the mid-20 century an era when the concept of social welfare state was predominant. It is thus pervaded with the modern outlook regarding the objectives and functions of the state. it embodies a distinct philosophy which regards the state as on organ to secure good and welfare of the people this concept of state is further strengthened by the Module – 1 5 Directive Principles of state policy which set out the economic, social and political goals of Indian constitutional system. These directives confer certain non-justiceable rights on the people, and place the government under an obligation to achieve and maximize social welfare and basic social values of life education, employment, health etc. In consonance with the modern beliefs of man, the Indian constitution sets up machinery to achieve the goal of economic democracy along with political democracy, for the latter would be meaningless without former. Therefore, the attainment of socio-economic justice being a conscious goal of state policy, there is a vast and inevitable increase in the frequency with which ordinary citizens come into relationship of direct encounter with state power- holder. The Administrative law is an important weapon for bringing about harmony between power and justice. The basic law of the land i.e. the constitution governs the administrators. 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. India’s Constitution is a very lengthy, elaborate and detailed document. It consists of 395 Articles arranged under 22 parts and 9 schedules. It is probably the longest of the organic law now extant in the world. Several reasons have contributed to the prolixity of the Indian Constitution. Firstly, the Constitution deals with the organization and structure not only of the central Government but also of the states. Secondly, in a federal constitution, Center-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. Thirdly, 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. Fourthly, 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. Module – 1 6 Fifthly, to promote the social welfare concept on which the state of India is to be based. The constitution includes Directive Principles of State Policy. Lastly, 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 Module – 1 7 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-justiceable 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 Module – 1 8 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 center 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 Module – 1 9 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. Need for the Administrative Law: Its Importance And Functions The emergence of the social welfare has affected the democracies very profoundly. It has led to state activism. There has occurred a phenomenal increase in the area of sate operation; it has taken over a number of functions, which were previously left to private enterprise. The state today Module – 1 10 pervades every aspect of human life. The functions of a modern state may broadly be placed into five categories, viz, the state as:- •= protector, •= provider, •= entrepreneur, •= economic controller and •= arbiter. Administration is the all-pervading feature of life today. The province of administration is wide and embrace following things within its ambit:- •= It makes policies, •= It provides leadership to the legislature, •= It executes and administers the law and •= It takes manifold decisions. •= It exercises today not only the traditional functions of administration, but other varied types of functions as well. •= It exercises legislative power and issues a plethora of rules, bye- laws and orders of a general nature. The advantage of the administrative process is that it could evolve new techniques, processes and instrumentalities, acquire expertise and specialization, to meet and handle new complex problems of modern society. Administration has become a highly complicated job needing a good deal of technical knowledge, expertise and know-how. Continuous experimentation and adjustment of detail has become an essential requisite of modern administration. If a certain rule is found to be unsuitable in practice, a new rule incorporating the lessons learned from experience has to be supplied. The Administration can change an unsuitable rule without much delay. Even if it is dealing with a problem case by case (as does a court), it could change its approach according to the exigency of the situation and the demands of justice. Such a flexibility of approach is not possible in the case of the legislative or the judicial process. Administration has assumed such an extensive, sprawling and varied character, that it is not now easy to define the term “ administration” or to evolve a general norm to identify an administrative body. It does not suffice to say that an administrative body is one, which administers, for the administration does not only put the law into effect, but does much more; it legislates and adjudicates. At times, administration is explained in a negative manner by saying that what does not fall within the purview of the legislature or the judiciary is administration. Module – 1 11 In such a context, a study of administrative law becomes of great significance. The increase in administrative functions has created a vast new complex of relations between the administration and the citizen. The modern administration impinges more and more on the individual; it has assumed a tremendous capacity to affect the rights and liberties of the people. There is not a moment of a person’s existence when he is not in contact with the administration in one-way or the other. This circumstance has posed certain basic and critical questions for us to consider: •= Does arming the administration with more and more powers keep in view the interests of the individual? •= Are adequate precautions being taken to ensure that the administrative agencies follow in discharging their functions such procedures as are reasonable, consistent with the rule of law, democratic values and natural justice? •= Has adequate control mechanism been developed so as to ensure that the administrative powers are kept within the bounds of law, and that it would not act as a power drunk creature, but would act only after informing its own mind, weighing carefully the various issues involved and balancing the individual’s interest against the needs of social control? It has increasingly become important to control the administration, consistent with the efficiency, in such a way that it does not interfere with impunity with the rights of the individual. Between individual liberty and government, there is an age-old conflict the need for constantly adjusting the relationship between the government and the governed so that a proper balance may be evolved between private interest and public interest. it is the demand of prudence that when sweeping powers are conferred on administrative organs, effective control- mechanism be also evolved so as ensure that the officers do not use their powers in an undue manner or for an unwarranted purpose. It is the task of administrative law to ensure that the governmental functions are exercised according to law, on proper legal principles and according to rules of reason and justice fairness to the individual concerned is also a value to be achieved along with efficient administration The goal of administrative law is to redress this inequality to ensure that, so far as possible, the individual and the state are placed on a plane of equality before the bar of justice. In reality there is no antithesis between a strong government and controlling the exercise of Module – 1 12 administrative powers. Administrative powers are exercised by thousands of officials and affect millions of people Administrative efficiency cannot be the end-all of administrative powers. There is also the questions of protecting individual’s rights against bad administration will lead to good administration. A democracy will be no better than a mere façade if the rights of the people are infringed with impunity without proper redressed mechanism. This makes the study of administrative law important in every country. For India, however, it is of special significance because of the proclaimed objectives of the Indian polity to build up a socialistic pattern of society. This has generated administrative process, and hence administrative law, on a large scale. Administration in India is bound to multiply further and at a quick pace. If exercised properly, the vast powers of the administration may lead to the welfare state; but, if abused, they may lead to administrative despotism and a totalitarian state A careful and systematic study and development of administrative law becomes a desideratum as administrative law is an instrument of control of the exercise of administrative powers. Nature and Definition of administrative Law Administrative Law is, in fact, the body of those which rules regulate and control the administration. Administrative Law is that branch of law that is concerned with the composition of power, duties, rights and liabilities of the various organs of the Government that are engaged in public administration. Under it, we study all those rules laws and procedures that are helpful in properly regulating and controlling the administrative machinery. There is a great divergence of opinion regarding the definition/conception of administrative law. The reason being that there has been tremendous increase in administrative process and it is impossible to attempt any precise definition of administrative law, which can cover the entire range of administrative process. Module – 1 13 Let us consider some of the definitions as given by the learned jurists. Austin has defined administrative Law. As the law, which determines the ends and modes to which the sovereign power shall be exercised. In his view, the sovereign power shall be exercised either directly by the monarch or directly by the subordinate political superiors to whom portions of those are delegated or committed in trust. Holland regards Administrative Law “one of six” divisions of public law. In his famous book “Introduction to American Administrative Law 1958”, Bernard Schawartz has defined Administrative Law as “the law applicable to those administrative agencies which possess of delegated legislation and ad judicatory authority.” Jennings has defined Administrative Law as “the law relating to the administration. It determines the organization, powers and duties of administrative authorities.” th Dicey in 19 century defines it as. Firstly, portion of a nation’s legal system which determines the legal statues and liabilities of all State officials. Secondly, defines the right and liabilities of private individuals in their dealings with public officials. Thirdly, specifies the procedure by which those rights and liabilities are enforced. This definition suffers from certain imperfections. It does not cover several aspects of administrative law, e.g. it excludes the study of several administrative authorities such as public corporations which are not included within the expression “State officials,” it excludes the study of various powers and functions of administrative authorities and their control. His definition is mainly concerned with one aspect of administrative. Law, namely, judicial control of public officials. A famous jurist Hobbes has written that there was a time when the society was in such a position that man did not feel secured in it. The main reason for this was that there were no such things as administrative powers. Each person had to live in society on the basis of his own might accordingly to Hobbes, “ In such condition, there was no place for industry, arts, letters and society. Worst of all was the continual fear of danger, violent death and life of man solitary poor, nasty and brutish and short. The jurists are also of the view that might or force as a means for the enforcement of any decision by man could continue only for some time. To put it is other words, the situation of “might is right” was only temporary. It Module – 1 14 may be said to be a phase of development. This can be possible only through the medium of law. Hence, law was made and in order to interpret it and in order to determine the rights and duties on the basis of such interpretation, this work was entrusted to a special organ that we now call judiciary. The organ, which was given the function of enforcing the decision of judicial organ, is called executive. It has comparatively a very little concern with the composition of the executive organ. K.C. Davis has defined administrative law in the following words: “ Administrative Law is the law concerning the powers and procedures of administrative agencies including specially the law governing judicial review of administrative action.” In the view of Friedman, Administrative Law includes the following. •= The legislative powers of the administration both at common law and under a vast mass of statutes. •= The administrative powers of the administration. •= Judicial and quasi-judicial powers of the administration, all of them statutory. •= The legal liability of public authorities. •= The powers of the ordinary courts to supervise the administrative authorities. 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.” A careful perusal of the above makes it clear that Administrative Law deals with the following problems: A. Who are administrative authorities? B. What is the nature and powers exercised by administrative authorities? C. What are the limitations, if any, imposed on these powers? D. How the administration is kept restricted to its laminose? E. What is the procedure followed by the administrative authorities? Module – 1 15 F. What remedies are available to persons adversely affected by administration? Thus the concept of administrative law has assumed great importance and remarkable advances in recent times. There are several principles of administrative law, which have been evolved by the courts for the purpose of controlling the exercise of power. So that it does not lead to arbitrariness or despotic use of power by the instrumentalities or agencies of the state. During recent past judicial activism has become very aggressive. It was born out of desire on the part of judiciary to usher in rule of law society by enforcing the norms of good governance and thereby produced a rich wealth of legal norms and added a new dimension to the discipline administrative law. 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 Module – 1 16 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. Sources of Administrative Law Module – 1 17 There are four principal sources of administrative law in India:- •= Constitution of India •= Acts and Statutes •= Ordinances, Administrative directions, notifications and Circulars •= Judicial decisions Future Role of Administrative Law The administrative law has come to stay because it provides an instrument of control of the exercise of administrative powers. The administrative law has to seek balance between the individual right and public needs. As we know in the society there exists conflict between power and justice wherever there is power, there exist probabilities of excesses in exercise of the power. One way is to do nothing about this and let the celebrated Kautilyan Matsanayaya (big fish eating little fish) prevail. The other way is to try and combat this. Administrative law identifies the excesses of power and endeavors to combat there. The learned Author, Upender Baxi, while commenting on the administrative law has rightly observed in. (The Myth and reality of the Indian administrative law, Introduction by Upendra Baxi in administrative law ed. by I.P. Massey 2001 at XVIII) “to understand the stuff of which administrative law is made one has to understand relevant domains of substantive law to which courts apply the more general principles of legality and fairness. In this way a thorough study of administrative law is in effect, a study of the Indian legal system a whole. More importantly, it is study of the pathology of power in a developing society.” Growth in science and technology and modernization has resulted in great structural changes accompanied with increase in the aspirations of people as to quality of life. We know socio-eco-politico and multi dimensional problems which people face due to technological development cannot solved except by the growth of administration and the law regulating administration. No doubt the principles evolved by the court for the purpose of controlling the misuse of governmental of power is satisfactory. Yet it is said that the administrative law in India is an instrument in the hands of middle class Indians to combat administrative authoritarianism through the instrumentality of the court and there is need to make administrative law a shield for the majority of Indians living in rural area and people under poverty line. Therefore easy access to justice is considered important form of accountability this may include informal procedure, Module – 1 18 speedy and less expensive trial, legal aid,  public interest litigation, easy bail etc. Further, the multifarious activities of the state extended to every social problems of man such as health education employment, old age pension production, control and distribution of commodities and other operations public utilities. This enjoins a new role for administration and also for the development of administrative law. Separation of Powers he doctrine of Separation of Powers is of ancient origin. The history of th th T The origin of the doctrine is traceable to Aristotle. In the 16 and 17 Centuries, French philosopher John Boding and British Politician Locke respectively had expounded the doctrine of separation of powers. But it was Montesquieu, French jurist, who for the first time gave it a systematic and scientific formulation in his book ‘Esprit des Lois’ (The spirit of the laws). Montesquieu’s view Montesquieu said that if the Executive and the Legislature are the same person or body of persons, there would be a danger of the Legislature enacting oppressive laws which the executive will administer to attain its own ends, for laws to be enforced by the same body that enacts them result in arbitrary rule and makes the judge a legislator rather than an interpreter of law. If one person or body of persons could exercise both the executive and judicial powers in the same matter, there would be arbitrary powers, which would amount to complete tyranny, if the legislative power would be added to the power of that person. The value of the doctrine lies in the fact that it seeks to preserve human liberty by avoiding the concentration of powers in one person or body of persons. The different organs of government should thus be prevented from encroaching on the province of the other organ. This theory has had different application in France, USA and England. In France, it resulted in the rejection of the power of the courts to review acts of the legislature or the executive. The existence of separate administrative Module – 1 19 courts to adjudicate disputes between the citizen and the administration owes its origin to the theory of separating of powers. The principle was categorically adopted in the making of the Constitution of the United States of America. There, the executive power is vested in the president. Article the legislative power in congress and the judicial power in the Supreme Court and the courts subordinates thereto. The President is not a member of the Congress. He appoints his secretaries on the basis not of their party loyalty but loyalty to himself. His tenure does not depend upon the confidence of the Congress in him. He cannot be removed except by impeachment, However, the United States constitution makes departure from the theory of strict separation of powers in this that there is provision for judicial review and the supremacy of the ordinary courts over the administrative courts or tribunals. In the British Constitution the Parliament is the Supreme legislative authority. At the same time, it has full control over the Executive. The harmony between the Legislator and the (Executive) is secured through the Cabinet. The Cabinet is collectively responsible to the Parliament. The Prime Minister is the head of the party in majority and is the Chief Executive authority. He forms the Cabinet. The Legislature and the Executive are not quite separate and independent in England, so far as the Judiciary is concerned its independence has been secured by the Act for Settlement of 1701 which provides that the judges hold their office during good behaviour, and are liable to be removed on a presentation of addresses by both the Houses of Parliament. They enjoy complete immunity in regard to judicial acts. In India, the executive is part of the legislature. The President is the head of the executive and acts on the advice of the Council of Ministers. Article 53 and 74 (1) He can be impeached by Parliament. Article 56 (1) (b) read with Art 61, Constitution. The Council of Ministers is collectively responsible to the Lok Sabha Article 75 (3) and each minister works during the pleasure of the President. Article 75 (2) If the Council of Ministers lose the confidence of the House, it has to resign. Functionally, the President’s or the Governor’s assent is required for all legislations. (Articles 111,200 and Art 368). The President or the Governor has power of making ordinances when both Houses of the legislature are not in session. (Articles 123 and 212). This is legislative power, and an ordinance has the same status as that of a law of the legislature. (AK Roy v Union of India AIR 1982 SC 710) The President or the Governor has the power to grant pardon (Articles 72 and 161) The legislature performs judicial function while committing for contempt those who defy its orders or commit breach of privilege (Articles 105 (3) 194 (3) Thus, the executive is dependent on the Legislature and while it performs some legislative functions such as subordinate it, also performs some executive functions such as those required for maintaining order in the house. There is, however, considerable institutional separation between the judiciary and the other organs of the government. (See Art 50) Module – 1 20 The Judges of the Supreme Court are appointed by the President in consultation with the Chief justice of India and such of the judges of the supreme Court and the High Courts as he may deem necessary for the purpose. (Article 124 (2)) The Judges of the High Court are appointed by the President after consultation with the Chief Justice of India, the Governor of the state, and, in the case of appointment of a judge other than the Chief justice, the Chief Justice of the High Court( Article 217 (1).) It has now been held that in making such appointments, the opinion of the Chief justice of India shall have primacy. (Supreme Court Advocates on Record Association.) The judges of the high Court and the judges of the Supreme Court cannot be removed except for misconduct or incapacity and unless an address supported by two thirds of the members and absolute majority of the total membership of the House is passed in each House of Parliament and presented to the President Article 124 (3) An impeachment motion was brought against a judge of the Supreme court, Justice Ramaswami, but it failed to receive the support of the prescribed number of members of Parliament. The salaries payable to the judges are provided in the Constitution or can be laid down by a law made by Parliament. Article 125 (1) and Art 221 (1). Every judge shall be entitled to such privileges and allowances and to such rights in respect of absence and pension, as may from time to time be determined by or under any law made by Parliament and until so determined, to such privileges, allowance and rights as are specified in the Second Schedule. Neither the privileges nor the allowance nor his rights in respect of leave of absence or pension shall be varied to his disadvantage after his appointment. Appointments of persons to be, and the posting and promotion of, district judges in any state shall be made by the Governor of the State in consultation with the High Court exercising jurisdiction in relation to such state (Article 233) The control over the subordinate courts is vested in the acts of the Legislature as well as the executive. The Supreme Court has power to make rules (Article 145) and exercises administrative control over its staff. The judiciary has power to enforce and interpret laws and if they are found in violation of any provision of the Constitution, it can declare them un- constitutional and therefore, void. It can declare the executive action void if it is found against any provisions of the Constitution. Article 50 provides that the State shall take steps to separate the judiciary from the executive. Thus, the three organs of the Government (i.e. the Executive, the Legislature and the Judiciary) are not separate. Actually the complete demarcation of the functions of these organs of the Government is not possible. Module – 1 21 The Constitution of India does not recognize the doctrine of separation of power in its absolute rigidity, but the functions of the three organs of the government have been sufficiently differentiated.( Ram Jawaya v. State of Punjab, AIR 1955 SC 549) None of the three of organs of the Government can take over the functions assigned to the other organs.( Keshanand Bharti v. State of Kerala, AIR 1973 SC 1461, Asif Hameed v. State of J&K 1989 AIR, SC 1899) In State of Bihar v. Bihar Distillery Ltd., (AIR 1997 SC 1511) the Supreme Court has held that the judiciary must recognize the fundamental nature and importance of the legislature process and must accord due regard and deference to it. The Legislative and Executive are also expected to show due regard and deference to the judiciary. The Constitution of India recognizes and gives effect to the concept of equality between the three organs of the Government. The concept of checks and balance is inherent in the scheme. RULE OF LAW he 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 T 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. Rule of Law is a dynamic concept. It does not admit of being readily expressed. Hence, it is difficult to define it. Simply speaking, it means supremacy of law or predominance of law and essentially, it consists of values. The concept of the rule of Law is of old origin. Edward Coke is said to be the originator of this concept, when he said that the King must be under God and Law and thus vindicated the supremacy of law over the pretensions of the executives. Prof. A.V. Dicey later developed on this concept in the course of his lectures at the Oxford University. Dicey was an individualist; he wrote about the concept of the Rule of law at the end of the golden Victorian era of laissez-faire in England. That was the reason why Dicey’s concept of the Rule of law contemplated the absence of wide powers in the hands of Module – 1 22

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