Author: Aanchal Gupta, II year of B.B.A.,LL.B. from Gitarattan International Business School is affiliated with Guru Gobind Singh Indraprastha University
Introduction
For the smooth functioning of a democratic country, there should be a society based on fairness, reasonableness and justness. Administrative law strives to develop a rule of law. It regulates the relationships between citizens and government & protects the common man from arbitrary decisions of officials. It consists of all executive actions, its programs & policies; all administrative aspects of parliament & judiciary; all actions of state like actors (agency & instrumentality of the state); all actions of non-state actors (private entities) exercising public functions. It is the branch of public law which ensures the working of government at both central and state levels and also deals with the organizations and powers of administrative and quasi- administrative bodies. It is judge-made law in general which ensures public welfare by providing guidelines.
MEANING
Administrative law is basicallya law which regulates the actions of administrative authorities or agencies. Administrative law tries to develop a relation between the public and government by regulating itself as the time required. Administrative law as per the Indian perspective it is almost judge-made law it is because of its changes by the court case by case in the form of guidelines. It contains all aspects of administrative actions as it can work as legislative as it has delegated powers given through legislature but in limits, it can also work as executive as it enforces the law or implements the law, it comes in the role of the judiciary when there is need to make quick decisions but there can be judicial review of that actions if there is contrary in that decision. Administrative law regulates all these actions and ensures remedies against the arbitrary actions of administrative agencies.
Administrative law may be identified on the four basics stone
1. Checking constructive or abusive of the powers of the administrative authorities
2. Ensuring citizens a just and fair solution or determination of disputes
3. Protect from unauthorized curtailing of rights of the citizens
4. Accountability of the powers.
Ensuring the protection of citizens over the arbitrary actions of the administration and also focuses on the judicial review of the actions or decisions taken by the administration to fulfilthat protection against the actions of the administration are main objects of the administrative law.
Definitions of Administrative law
According to K.C. Devis, Administrative law is a law which is related to powers and procedures of administrative agencies, including specially the law related to judicial review of administrative actions.
According to Ivor Jennings, Administrative law is relating to the administration which helps in the determination of the organization, powers and duties of the administrative authorities.
According to Austin, Administrative law is to determine the ends to and the modes in which the sovereign powers shall be exercised. It shall be directly or by the subordinates.
According to Prof.H.W.R. Wade, Administrative law is the law which controls the powers of the government.
According to C.K.Takwani, Administrative law is the branch of constitutional law which deals with the powers and procedures of the administrative authorities.
Nature and Scope of Administrative Law
The administrative law has a growing importance and the interest and it is most outstanding phenomenon in the welfare state today. Knowledge of the administrative law is as important for the officials as responsible for carrying on administration as for the students of law.
Not a codified Law: Administrative law is not codified like the IPC or law of the contracts. It is based on the constitution.
Judge made law: It is essentially a judge made law and it is a branch of public law which deals with the constitution and delegation of power.
Deals with the organisation: Administrative Law deals with organisation and powers of the administrative and quasi-administrative authorities.
Concerned with the official actions: Administrative Law is primarily concerned with the official action and the procedure by which official action is reached. Example: Rule Making, Rule Application, Monitoring actions or pure administration.
Control Mechanism: It includes control mechanism (judicial review) by which the administrative authorities are kept within bounds and made effective.
Authorities: Administrative law is derived from the authorities from the constitutional and statutory law.
Rights: Administrative Law relates to the individual rights as well as public needs and ensures transparency, open and honest governance which is more people friendly.
Means or the End: The study of the administrative law is not an end in itself, but it is a means.
Emergence and development: Administrative law emerges and develops wherever and whenever any person becomes the victim of the arbitrary exercise of the public power. Administrative law I not the branch of the philosophy of law, but of sociology of law.
Branches which govern: It is the body of law which governs the activities of the administrative authorities of the government. Government agency action includes rule making, rule adjudication, enforcement of specific regulations and the related agenda.
Scope of Administrative law
Scope means an area of study or the variety of subjects that are being discussed or considered. As administrative law is almost judge-made law so it changes according to societal needs but in the guidance of the basic principles so the scope of this law is wider in comparison to other laws. Administrative law determines the powers and duties of the organization and the administrative authorities. The scope of administrative law is wide enough because, with the requirement of time, Administrative Law incorporates and culls out new rules and regulations. The concept of administrative law is founded on the following:-
1. Principles of natural justice and for rulemaking
2. Notion of the Rule of law
3. Law conferred power to administration as per Article 13 of the Indian Constitution
4. Accountability of powers, no power is absolute or uncontrolled
5. There should be a reasonable restriction on the regulations of such powers
6. The power of the court to issues writs
7. Opinions of public and mass media.
As administrative law incorporates new rules and regulations as per the requirement of time, so its scope is wide enough to incorporate all such rules and regulations. In general, it is a judge made law so it varies according to societal needs. The scope of the administrative law is wide as it can act as all three branches of the government. It can make law, implement the law and can also take decisions whenever required. But the review of the decision can be taken and on the basis of that review, the court can issue guidelines if there is any contradiction in that decision.
ENGLAND
In 1885 Albert Venn Dicey, a British jurist, rejected the whole concept of administrative law. Hence, the numerous statutory discretionary powers given to the executives and administrative authorities and control exercised over them were all disregarded to be able to form a separate branch of law by the legal thinkers. Until the 20th Century, Administrative law was not accepted as a separate branch of law. It was only later that the existence of administrative law came to be recognised.
The Lord Donoughmore Committee, in 1929, recommended for better publication and control of subordinate legislation. The principle, King can do no wrong, was abolished and the scope of administrative law expanded by virtue of the Crown Proceeding Act in 1947 which allowed initiating civil proceedings against the Crown as against any private person.
In 1958, Tribunals and Inquiries Act was passed for better control and supervision of Administrative Decisions. Breen v Amalgamated Engineering Union [1971] 2 QB 175 was the first case wherein the existence of administrative law in the United Kingdom was declared.
UNITED STATES OF AMERICA
In the United States of America, the existence of administrative law and its growth was ignored until it grew up to become the fourth branch of the State. By then many legal scholars like Frank Goodnow and Ernst Freund had already authored a few books on administrative law.
It was in 1933 that a special committee was appointed to determine how judicial control over administrative agencies could be exercised. Thereafter, in 1946 The Administrative Procedure Act was passed which provided for judicial control over administrative actions.
INDIA
The Mauryan and the Guptas of ancient India had a centralised administrative system. It was with the coming of the British that administrative law in India went through a few changes. Legislations regulating administrative actions were passed in British India.
After independence, India adopted to become a welfare state, which henceforth increased the state activities. As the activities and powers of the Government and administrative authorities increased so did the need for ‘Rule of Law’ and ‘Judicial Review of State actions.
Henceforth, if rules, regulations and orders passed by the administrative authorities were found to be beyond the authorities’ legislative powers then such orders, rules and regulations were to be declared ultra-vires, unconstitutional, illegal and void.
Reasons for growth of administrative law
The concept of a welfare state
As the States changed their nature from laissez-faire to that of a welfare state, government activities increased and thus the need to regulate the same. Thus, this branch of law developed.
The inadequacy of legislature
The legislature has no time to legislate upon the day-to-day ever-changing needs of the society. Even if it does, the lengthy and time-taking legislating procedure would render the rule so legislated of no use as the needs would have changed by the time the rule is implemented.
Thus, the executive is given the power to legislate and use its discretionary powers. Consequently, when powers are given, there arises a need to regulate the same.
The inefficiency of Judiciary
The judicial procedure of adjudicating matters is very slow, costly complex and formal. Furthermore, there are so many cases already lined up that speedy disposal of suites is not possible. Hence, the need for tribunals arose.
Scope for the experiment
As administrative law is not a codified law there is a scope of modifying it as per the requirement of the State machinery. Hence, it is more flexible. The rigid legislating procedures need not be followed again and again.
SEPRATION OF POWERS AND ITS RELEVANCE
The whole structure of the Constitution is predicated upon the foundation which is formed because of the doctrine of separation of power. This is a system of checks and balances that prevents any organ from becoming supreme or misusing its power.
The three organs of the government are the fundamentals of law that are maintained by the separation of power. In most of the Countries, we understand that separation of power consists of three branches. Within the working of a State, the doctrine of separation of power ensures fairness. The system of state under the Separation of Powers is such that the ability is split between the various branches so that no branch has more power than the other one. It gives separate and independent powers and areas of responsibility to each branch, which must be freely exercised with no interruption of each other. In the State, there are three organs of the government i.e., (I) Legislature (ii) Executive and (iii) Judiciary. These powers and functions must be properly segregated and exercised by a separate organ of the government, in a free democracy. Thus, the legislature cannot exercise the executive or the judicial power, the executive cannot exercise the legislative or judicial powers.
Meaning Of Separation of Powers
Separation of powers divides the mechanism of governance into three branchesi.e., Legislature, Executive and the Judiciary. Although different authors givedifferent definitions, in general, we can frame three features of this doctrine.
Each organ should have different persons in capacity, i.e., a person with a function in one organ should not be a part of another organ.
One organ should not interfere in the functioning of the other organs.
One organ should not exercise a function of another organ (they should stick to their mandate only).Thus, these broad spheres are determined, but in a complex country like India there often arises conflict and transgression by one branch over the other.
Significance Of the Doctrine
This principle ensures that autocracy does not creep into a democratic system. It protects citizens from arbitrary rule. Hence, the importance of the Separation of Powers doctrine can be summed up as follows:
Keeps away autocracy
Safeguards individual liberty
Helps create an efficient administration
Judiciary’s independence is maintained
Prevents the legislature from enacting arbitrary or unconstitutional laws
HISTORICAL BACKGROUND
Trias Politica is referred to as the concept of separation of power. It was widely employed by the Roman Republic as a part of the uncodified Constitution of the Roman Republic and it was first developed in ancient Greece. The origin of the Doctrine of Separation of Power is traceable to the period of Aristotle. Aristotle (384-322) mentioned in his book that “there are three elements in each constitution in respect of which each serious lawgiver must search for what’s advantageous to it; of those are well arranged, and therefore the difference in constitutions is sure to correspond to the difference between each of those elements. The three are, first the deliberate; second, the official; and third the justicial element”.
According to Wade and Philips, separation of power means three things
One person shouldn’t be made quite one among the three organs of the government.
One organ of the government shouldn’t control or interfere with any other organ of the government.
One organ of government shouldn’t exercise the function which is assigned to any other organ.
The Doctrine of Separation of Power was expounded by the French philosopher John Bodin and British politicians Locke respectively in the 16th and 17th centuries. Within the same year, in 1948, a French philosopher, Montesquieu published his book ‘Esprit Des Lois’ (The Spirit of the laws) and represented systematically and scientifically this doctrine. He said that there would be an end of everything, where the same men or the same body, whether of nobles or of the people, to exercise these three powers, that of enacting the laws, that of executing the public resolutions, and of trying the cause of individuals.
ELEMENTS OF SEPERATION OF POWER
Legislature- The Legislature is also known as the rule-making body of government. Its function is to make law for the good governance of a state in the State list and Concurrent list. The legislative branch of government has the authority to amend the existing rules and regulations, in addition to the changes, which should be for the benefit of the public. Generally, Parliament holds the power for making rules and laws in the country.
Executive– The Executive is the guideline of thumb utility of government departments and civil servants. The executive is responsible for governing the state. It is mainly responsible to implement and put into effect the legal guidelines made by the legislature.
Judiciary– The Judiciary is the rule adjudication department. It interprets and applies the laws made by the legislature. It safeguards the rights of the individual. It also resolves the disputes within the states or between states and individuals.
Constitutional Status of Separation of Powers in India
Under the Indian Constitution:
Legislature- Parliament (Lok Sabha and Rajya Sabha), State legislative bodies
Executive- At the central level- President, At the state level- Governor
Judiciary- Supreme Court, High Court and all other subordinate courts
Some of Articles of the constitution
Article 50
This article puts an obligation over the State to separate the judiciary from the executive. But, since this falls under the Directive Principles of State Policy, it is not enforceable. Articles 53 and 154
It provides that the executive power of the Union and the State shall be vested with the President and the Governor and they enjoy immunity from civil and criminal liability.
Articles 121 and 211
These provide that the legislatures cannot discuss the conduct of a judge of the Supreme Court or High Court. They can doso only in case of impeachment.
Article 123
The President, being the executive head of the country, is empowered to exercise legislative powers (Promulgate ordinances) in certain conditions.
Article 361
The President and Governors enjoy immunity from court proceedings., they shall not be answerable to any court for the exercise and performance of the powers and duties of his office.
There is a system of checks and balances wherein the various organs impose checks on one another by certain provisions.
The judiciary has the power of judicial review over the actions of the executive and the legislature
The judiciary has the power to strike down any law passed by the legislature if it is unconstitutional or arbitrary as per Article 13 (if it violates Fundamental Rights).
It can also declare unconstitutional executive actions as void.
The legislature also reviews the functioning of the executive.
Although the judiciary is independent, the judges are appointed by the executive.
The legislature can also alter the basis of the judgment while adhering to the constitutional limitation.
Checks and balances ensure that no one organ becomes all-too powerful. The Constitution guarantees that the discretionary power bestowed on any one organ is within the democratic principle.
Functional Overlap
The legislature besides exercising law-making powers exercises judicial powers in cases of breach of its privilege, impeachment of the President and the removal of the judges.
The executive may further affect the functioning of the judiciary by making appointments to the office of Chief Justice and other judges.
Legislature exercising judicial powers in the case of amending a law declared ultra vires by the Court and revalidating it.
While discharging the function of disqualifying its members and impeachment of the judges, the legislature discharges the functions of the judiciary.
Legislature can impose punishment for exceeding freedom of speech in the Parliament; this comes under the powers and privileges of the parliament. But while exercising such power it is always necessary that it should be in conformity with due process.
The heads of each governmental ministry are a member of the legislature, thus making the executive an integral part of the legislature.
The council of ministers on whose advice the President and the Governor acts are elected members of the legislature
Legislative power that is being vested with the legislature in certain circumstances can be exercised by the executive. If the President or the Governor, when the legislature or is not in session and is satisfied that circumstances exist that necessitate immediate action may promulgate ordinance which has the same force of the Act made by the Parliament or the State legislature.
The Constitution permits, through Article 118 and Article 208, the Legislature at the Centre and in the States respectively, the authority to make rules for regulating their respective procedure and conduct of business subject to the provisions of this Constitution. The executive also exercises law making power under delegated legislation.
The tribunals and other quasi-judicial bodies which are a part of the executive also discharge judicial functions. Administrative tribunals which are a part of the executive also discharge judicial functions.
Higher administrative tribunals should always have a member of the judiciary. The higher judiciary is conferred with the power of supervising the functioning of subordinate courts. It also acts as a legislature while making laws regulating its conduct and rules regarding disposal of cases.
Judicial Pronouncement
Kesavananda Bharati v State of Kerala (1973)
In this case, the SC held that the amending power of the Parliament is subject to the basic features of the Constitution. So, any amendment violating the basic features will be declared unconstitutional.
Swaran Singh Case (1998)
In this case, the SC held the UP Governors pardon of a convict unconstitutional.
Ram Jawaya Kapoor V State of Punjab(1955)
In this case it was held that the Indian Constitution has not indeed recognised the doctrine of separation of powers in its absolute rigidity but the functions of the different parts or branches of the government have been sufficiently differentiated and consequently it can be very well said that our Constitution does not contemplate assumption by one organ or part of the state of functions that essentially belong to another.
Indira Nehru Gandhi v. Raj Narain (1975)
Where the dispute regarding Prime Minister’s election was pending before the Supreme Court, it was held that adjudication of a specific dispute is a judicial function which parliament, even under constitutional amending power, cannot exercise.
So, the main ground on which the amendment was held ultra vires was that when the constituent body declared that the election of Prime Minister wouldn’t be void, it discharged a judicial function that according to the principle of separation it shouldn’t have done. The place of this doctrine in the Indian context was made a bit clearer after this judgment.
RELEVANCE OF SEPARATION OF POWER IN MODERN ERA
The basic concept of the separation of powers is to build a modern democracy in order to safeguard freedom and to prevent abuse of power. For setting out the clear division of power among the organs of the state, separation of power is very important. But more importantly, it provides the mechanism to ensure that these organs do not misuse the power which is vested to them and prevent them from being abused. However, in today’s time, we see that in order to achieve a fully functional democratic system there has been an overlap and balance between the three organs of the government. Within the separation of power, there is a high degree of tension and the excess of power remains in the hand of the executive in comparison to judges or judiciary. The power of the legislature and the judiciary must be enhanced so that there remains a balance between the three organs and no one organ is more superior than others. Whenever these three functions don’t work together, the system gets dysfunctional. We can see that the executives are taking the power of the judiciary in their own hands. Police are doing encounters illegally for the sake of name and fame, the power which is given to them is exceeding that and using it in the wrong way. In politics also we can see that there is a division of power but politics exceeds that power, powers being used for a personal favour. If something happens between the party and its opposition, they target each other by going beyond their power. In order to save money, they donate funds to Non-Governmental Organizations and so, corruption grows. It cannot be ignored that in this process, public money is used for personal benefits, which inflicts substantial damage to the economy. Subsequently making the rich, richer and poor, poorer.
Relationship between constitution law and administrative law
Both constitutional and administrative law, concerned with the functions of the government, are components of public law in the modern nation-state. However, there is a difference between administrative law and constitutional law. Administrative law, to be more specific, is an addition to the supreme law of the land, the constitutional law.
Definition Administrative Law
The establishment and administration of government entities are governed by administrative law. It defines the authorities of administrative agencies, the substantive regulations they create, and the legal relationships that bind them to other government organizations and the general public.
Definition Constitutional Law
Constitutional law deals with the powers, rights, and liberties established by a legally passed constitution or a charter. It comprises the powers of the several branches of the government and the rights of the people.
Conclusion
According to Prof. S P Sathe, administrative law is a subset of constitutional law, and all administrative law concerns are constitutional law issues. As a result, constitutional law has a broad scope, with a plethora of administrative laws accounting for a sizable component of it. This is the difference between administrative law and constitutional law.