Introduction to Administrative Law

This article is a brief Introduction to Administrative Law that talks about its origins and how its evolution came into being. It analyses some definitions of the subject given by many famous thinkers.

History

The oldest use of Administrative procedures was referred to as “inquest” or “inquisitions”, which for the Romans meant simply, investigation.[1] In the Magna Carta which was the first Charter that talked about rule of law, procedures and balance of powers during a monarchial rule of the King, there existed a clause that stated “Writ of Inquisition of Life or Limb” and that it “must be granted freely and not denied”.[2]

It grew through the influence of various forces, external being the social and economic forces and internal being the rigid and resolute frameworks that served older systems, conditions and institutions but were inefficient in serving the developments of the new world.

The relative and social necessity were felt when demands like that of regulation of industries when the abuse of it became visible to the people. Thus, the need for control and check developed, which increased the functions and the pressure on the government, giving increased powers to the executive and, thus, increased legislative output.

Slowly and gradually, from one power, for instance, railroad commissions to a much larger scope and power, the role of administrative agencies kept increasing, and their extensions into the fields, such as regulation of public utilities and securities etc., grew.

Droit Administratif

Droit Administratif is the French Administrative law which is considered widely popular and old, through which many administrative provisions in other countries have been influenced from. Napoleon Bonaparte founded the “Droit Administratif” and formed the Conseil d’Etat.

He also passed a law restricting the jurisdiction of courts on administrative subjects. The three main features of the Droit Administratif (as given by Waline) are as follows:

• the power of administration to act suo moto and impose directly on the subject the duty to obey its discretion;
• the power of the administration to take decisions and to execute them suo moto may be exercised only within the ambit of law, which protects individual liberties against administrative arbitrariness
  
• the existence of a specialized administrative jurisdiction

Dicey was a critic of the Droit Administratif due to two reasons - firstly, because the government and every servant of it is a representative of the nation and holds some special rights and privileges that are not the same as every other citizen of the country.

Thus, unlike in French law, an individual’s relationship with the State is not on the same level as the interaction between two ordinary individuals. And secondly, the government should not be bound by restrictions by the ordinary courts and must be free of their jurisdiction. Therefore, Dicey sought that such a system is inapplicable to English Law.

Meaning and Definitions

There are diverse definitions and notions of administrative law, but there remain some key aspects that are a common point between all the interpretations. These are: firstly, it is concerned with the manner of exercising governmental powers, and secondly, any definition of administrative law needs to focus based on the function or a substantial purpose for which it exists, for example, the control of governmental powers.

According to Dr F.J. Port-“Administrative law is made up of all these legal rules either formally expressed by statute or implied in the prerogative-which have as their ultimate object the fulfilment of public law.

It touches first the legislature, in that body usually lays down the formally expressed rules; it touches the judiciary, in that (a) there are rules which govern the judicial action that may be brought by or against the administrative person, (b) administrative bodies are sometimes permitted to exercise judicial powers: thirdly, it is of course essentially concerned with the practical application of Law.”

Sir Ivor Jennings, a prominent British lawyer and academic who wrote popular books like “the law and the Constitution”, defines administrative law as “the law relating to administration. “He believes it determines the organization, powers and duties of administrative authorities.

This formulation does not differentiate between administrative and constitutional law.[3] Massey criticises the definition of Jennings since it neglects to separate administrative and constitutional law. It lays more importance on the association, power, and obligations to the prohibition of the way of their activity.

As such, this definition doesn’t give significance to the administrative procedure, for example, the way of an organization's basic leadership, including the standards, strategies, and principles it ought to conform to.

Thus Massey gives a broad and comprehensive definition “ Administrative law is that branch of public law which deals with the organization and powers of administrative and quasi-administrative agencies and prescribes the principles and rules by which official action is reached and reviewed in relation to individual liberty and freedom”[4]

Dicey, like Jennings, belongs to that group of English writers who did not recognize the independent existence of administrative law. According to Dicey’s formulation, ‘Firstly, it (administrative law) relates to that portion of a nation’s legal systems which determines the legal status and liabilities of all state officials. Secondly, defines the rights and liabilities of private individuals in their dealings with public officials. Thirdly, specifies the procedures by which those rights and liabilities are enforced.’ [5]

Austin has defined it 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 indirectly by the subordinate political superiors to whom portions of those powers are delegated or committed in trust.

Schwartz has defined it as “the law applicable to those administrative agencies, which possess delegated legislation and adjudicative authority.’ This definition is a narrower one. Among other things, it is silent about the control mechanisms and those remedies available to parties affected by administrative action.

Administrative law is other than encompassing all parts of government, administrative and quasi-administrative offices, i.e., companies, commissions, colleges and now and then even private associations. Early English authors didn’t separate between administrative and constitutional law, and subsequently, the definition they supported was progressively wide and general.

Nonetheless, administrative law might be characterized as that part of public law that manages the organization of administrative and quasi-administrative agencies and recommends standards and rules by which an official activity is checked and inspected in connection to individual freedom and liberty.

The Administrative law manages the division and composition of powers of various organs of organization, the framework that the administrative authorities and specialists will follow in the workings of their power and the different methods of control, including especially legal review over the various types of powers practised by the administrative authorities.

In short, administrative law deals with the power, especially quasi-judicial and quasi-legislative, of administrative authorities alongside their official executive powers and control.

Nature of Administrative Law

Friedman’s view on the nature of Administrative law is widely accepted and includes 5 points as follows:[6]

• it includes the legislative powers of the administration, both at common law and under the statute
• the administrative powers of administration under both common law and statutes
• the judicial and quasi-judicial powers all under statutory provisions
• the legal liability of public authorities
• the powers of the ordinary courts to supervise the administrative authorities

Classification of Administrative Law

Due to the wide powers of administrative law, it has a classification that determines the scope of the power of various branches under the ambit of administrative organizations that have jurisdiction over specific subjects. Thus, administrative action is classified into four categories:

1. Quasi-legislative action – This refers to the sub-ordinate legislative powers that the Legislature delegates to the administrative agencies. The legislature gives limited powers and specifies the extent to which they can be exercised while delegating this power. The ultimate authority rests with the Legislature on any actions or decisions taken by them.
2. Quasi-judicial action – This refers to the administrative agencies that exercise adjudicatory power delegated to them by the Judiciary. The scope of this also covers certain administrative actions like disciplinary proceedings, for instance, that require judicial interference, and these quasi-judicial bodies can perform such.
3. Purely Administrative action – also referred to as rule application, is the residuary action that is neither quasi-legislative nor quasi-judicial but requires the full exercise of administrative action that is not general and differs from case to case. Administrative action follows natural justice laws.
4. Ministerial action – the only difference between purely administrative and ministerial action is that under administrative action, agencies have enough discretionary powers to make changes and give decisions according to specific situations that arise. In the latter, there is no space provided for exercising individual discretion. Instead, they have to follow the set, defined procedure and duties.

Need and Importance of Administrative Law

The Law Commission, in its XIVth Report, explicitly mentions the reason why administrative law grew exponentially and its need in the current scenario as follows: “Society in the 20th century has become exceedingly complex and governmental functions have multiplied. The change in the scope and character of the Government from negative to positive, that is, from the laissez-faire to the public service state, has resulted in the concentration of considerable power in the hands of the executive branch of Government.”

Due to these changes and the evolution of societies, the interaction between the citizens and administrative bodies has increased, as it has the power to influence the rights and liberties of the people. It evolves new processes and innovative techniques by creating specializations that have the expertise to deal with any new nature of problems that arise to ensure the maximum welfare of the people.

As administrative agencies possess certain discretionary powers, they have the right to change or amend unsuitable or irrelevant rules without much delay in dealing with the problems that come to them by handling them individually. They have this flexibility, unlike the legislature or judiciary.

In brief, administrative agencies have a very wide, extensive and diverse character as they make policies, provide leadership and support to the legislature, execute and administer the law, and make varied decisions regarding the problems put in front of them.

They not only exercise the traditional functions of administration but the other upcoming functions that are needed by exercising legislative power and issuing a plethora of rules, bye-laws and orders of various types.

Constitutional and Administrative Law in India

In the Constitution of India, Articles 245 and 246 provide for the legislative powers to be discharged by the Parliament and State legislature. The delegation of these powers was not specifically stated, although it was eventually considered inevitable. Further, Article 13(3)(a) talks about the ordinances, order-by-law, rules, regulations, notifications etc., all that is included under the law.

The distinction between administrative and constitutional law is important, but their provisions overlap in many situations. Administrative law is considered public law that governs the relationship between government and the public, and this is similar to the goals of Constitutional law, thus, irrespective of their differences, they share common features.

‘The Constitutional law describes the various organs of government at rest, while administrative law describes them in motion”

But, Constitutional law that includes the fundamental rights and duties to ensure the life and liberties of citizens, being the Supreme law of the land, it supersedes administrative law in certain situations. Administrative law doesn’t provide rights but provides the procedure to implement these rights ensured through providing principles, rules and remedies.

Control on Administrative Law

The courts perform checks and balances on administrative law through Judicial review. There are certain remedies that the courts can provide in situations where administrative discretion has been abused or used ultra vires.

The power that the courts can exercise is as follows:[7]

• Annulment of Administrative decisions – which can be done on the grounds of legality
• Declaration of the rights of persons under full jurisdiction
• Giving interpretations of administrative laws, especially in civil matters
• Punishment of administrative crimes

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References:

1. Administrative Law And Administrative Jurisdiction Author(S): W. Ivor Jennings
2. A Theory Of Administrative Law Author(S): William Bishop
3. Understanding Administrative Law Fourth Edition By William F. Fox, Jr.
4. Administrative Law And Process Third Edition Alfred C. Aman, Jr.
5. Constitutional And Administrative Law By Chris Taylor
6. Administrative Law And Droit Administratif A Comparative Study With An Instructive Model By Sumner Lobingier
7. A Comparative Analysis Definitions Of Administrative Law By Dr. Audrius Bakaveckas

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[1] Jenks, A Short History Of English Law

[2] Magna Carta: The Rule of Law and Liberty by James Spigelman

[3] The law and the constitution by Ivor Jennings

[4] Administrative Law by I.P. Massey

[5] The Law of the Constitution: (Oxford Edition of Dicey) by A.V. Dicey

[6] Administrative Law (Friedman’s Practice Series) by Joel Wm Friedman

[7] Notes On Administrative Law: French And English Experience by Fasil Abebe

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1. Judicial Pronouncements on the Doctrine of Separation of Powers
2. Constitutional Provisions Embodying The Rule Of Law