A complete overview of Administrative Law

Administrative Law: A Complete Guide

Development of administrative law in India

India’s administrative rule can be dated back to ancient times. Ancient India’s Maurya and Gupta dynasties had a centralised administrative structure. The Mughals, who had a similar administrative structure, came after them. In the past, kings were mostly concerned with three things: protecting the kingdom from foreign aggression, upholding law and order, and collecting taxes.

• With the arrival of the British in India, a new administrative rule came into being. The establishment of the East India Company greatly expanded the government’s powers. The British Parliament introduced many Acts, legislatures, and regulations to regulate public safety, welfare, morals, transportation, and labour relations.
• The State Carriage Act of 1861 established the practice of issuing licences. The Bombay Port Trust Act of 1879 established the first public company. In the Northern India Canal and Drainage Act of 1873 and the Opium Act of 1878, delegated law was recognised as valid executive authority.
• India followed a welfare state policy after independence and expanded state operations. As the government’s and regulatory authorities’ control and the operation grew, so did the need for “Rule of Law” and “Judicial Review of State Acts.”

Regulatory authorities’ laws, regulations, and orders were considered to be outside their statutory authority, those orders, regulations, and orders were to be rendered ultra-vires, unlawful, illegal, and invalid. This administrative law’s versatility is also a key characteristic of India’s administrative law evolution.

The transition from laissez-faire to Social Welfare state

The idea of social welfare, on the other hand, was quickly adopted after independence, especially after the adoption of the constitution. The constitution’s preamble declares that India will be a socialist, secular, democratic republic that will offer justice, liberty, privileges, and democracy to everyone. In addition, children under the age of 14 now have the right to free and compulsory education. Various social legislation, such as the Factories Act and the Minimum Wage Act, have since been enacted.

Administrative law is widely regarded as the most significant legal innovation of the twentieth century.

It was mainly a police state that assisted in maintaining law and order, the protection of the country from outside violence, the administration of justice to its people, and the collection of taxes to fund these operations. There was an uneven allocation of capital due to contractual freedom and enterprise freedom.

RULE OF LAW

Sir Edward Coke, the Chief Justice under James I’s reign, is credited with coining the phrase “rule of law.” The definition of the rule of law has a long history. Around 350 BC, Greek thinkers such as Plato and Aristotle debated the principle of rule of law.

To put it plainly, rule of law means that no one is above the law and that everybody, regardless of their status or rank, is subject to the authority of ordinary courts of law.

Administrative law is founded on the doctrine of the rule of law. The philosophy of rule of law, as discussed by Aristotle, is based on the concepts of right, equity, and inclusion.

• Article 13 stipulates that any statute passed by the legislature must be per the Constitution, without which it would be declared void.
• Article 21 adds another layer of protection from unconstitutional administrative interference by ensuring that no one’s life or liberty shall be taken away. The constitution meets all of the criteria for being recognised as a government that follows the Rule of Law using these approaches.
• Article 14 guarantees that all people are treated equally and that no one is discriminated against based on sex, religion, race, or place of birth. Ultimately, it ensures that authority is divided between the three branches of government and the ex-officio members.

Applicability of rule of law in a mixed economy

The rule of law is a critical component of a hybrid economy in which both public and private enterprises play equal roles, and therefore requires supervision by the proper application of the rule of law.

As previously said, the rule of law is essential for economic growth. It is a broad, multidimensional philosophy that encompasses a variety of elements such as fundamental rights, protection, property rights, and all the way up to government checks and balances.

• The rule of law offers a predictable and efficient economic planning environment for budding entrepreneurs to completely exploit the prospects of a free economy while still creating new possibilities and developments.
• In an economy without the rule of law, business decisions will be arbitrary. Without the rule of law in an economy, the decisions in the market would be ad hoc, hence having opacity and no predictability, which will further the less involvement of entrepreneurial capacities.

Separation of powers under Indian constitution

No clause of the Constitution mentions division of powers, except for Article 50, which mentions the separation of the executive and judiciary, but this doctrine is followed in India. When possible, the three organs interact with each other’s functions.”

While there is an explicit clause in the Constitution, similar to the American Constitution, that executive authority is vested in the President under Article 53(1) and in the Governor under Article 154(1), there is no provision that speaks to legislative and judicial power being vested in either organ. We should deduce that there is no strict power distinction.

Important judgement

In Indira Gandhi Nehru v. Raj Narain, the Supreme court asserted the Kesavananda ruling and upheld the basic structure as well as the separation of powers doctrine, making it a landmark case in our country.

Concept and classification of administrative function

The legislative, executive, and judiciary are the three branches of government. Legislative, executive, and judicial roles are the three types of governmental functions performed by all three organs.

The legislature’s role is to pass legislation; the executive’s function is to enforce the law, and the judiciary’s function is to define and declare what the law is.

Difference between administrative and quasi-judicial functions

Administrative decisions that are based on pre-determined criteria are referred to as objective decisions, while decisions that need an option so no set criterion can be applied are referred to as discretionary decisions.

The first is a quasi-judicial ruling, and the second is a decision made by an executive body. In the case of an administrative decision, the individual tasked with making the decision has no legal responsibility to consider and weigh submissions and claims, or to compile any facts.

Difference between administrative and legislative functions

Administrators have complete authority over and responsibility for an organization’s operations and tasks. Legislation is in charge of creating, removing, editing, and replacing laws, as well as exercising authority over judicial and administrative roles and practices. The administration is a self-contained entity, while governance is heavily reliant on administration for oversight and full enforcement of laws, rules, and regulations. Rules and legislation Legislative actions are critical in the development of a functional senatorial government because an administration would not need a thorough interpretation of the legislation to put it into effect.

Types of delegated legislation & Sub delegation in administrative law

The role of legislation is that it is an executive agency tasked with administering the law. Adding, repealing, and changing rules are among the responsibilities of legislation. They should have power over the executive, act as a mirror for public opinion, perform judicial roles, administer election functions, and have the right to amend the Constitution in addition to supervising and ensuring that the budget is managed.

• Delegated Legislation

When the legislature’s duties are delegated to institutions other than the legislature, the legislation enacted by that institution is known as Delegated Legislation. The executives/administrators are given this authority to deal with the logistical challenges that they face daily.

• Parliamentary Control

Since the Executive is accountable to the Parliament, parliamentary oversight is regarded as a standard constitutional role. The first level of legislative oversight is to ensure that the legislation specifies the scope of delegated authority. The laying of the Bill before Parliament is the second stage of such oversight.

• Judicial Control

The judiciary looks into the following aspects to determine the legal validity of the rules so made using the power so delegated-

1. If regulatory law violates the Constitution.
2. If the Parent Act is superseded by administrative law.
3. Where the administrative law is erroneous.
4. Where the administrative law is capricious, unfair, or oppressive.
5. In the absence of express jurisdiction in the Parent Act, regulatory regulation infringes on private citizen rights arising from the common law.

Judicial control over delegated legislation

The delegated legislation does not go beyond the reach of the judicial review of the Supreme Court and the High Courts. Judiciary exercises effective control over delegated legislation in India. The validity of delegated legislation can be examined by the courts on several grounds.

In the control mechanism, judicial control has emerged as the most outstanding controlling measure. Judicial control over delegated legislation is exercised by applying two tests:

• Substantive ultra vires
• Procedural ultra vires.

Ultra vires mean beyond powers, when subordinate legislation goes beyond the scope of authority conferred on the delegate to enact, it is known as substantive ultra vires. It is a fundamental principle of law that a public authority cannot act outside the powers and if the authority acts, ‘such act becomes ultra vires and, accordingly void’. It has been rightly described as ‘the central principle’ and ‘foundation of a large part of administrative law’.

In case of procedural ultra vires, the Courts may or may not quash delegated legislation as it depends upon the circumstances whether the procedure is held to be mandatory or directory

Judicial control over administrative action 

The authority of the court to hold executive actions within the bounds of the law is known as judicial oversight. It also means that an aggrieved person has the legal right to sue the government for an unjust act. The primary goal of judicial oversight of government is to safeguard citizens’ rights and liberties by ensuring that executive actions are lawful.

Via judicial inspection, the judiciary holds a watch on the other state organs. The reasons for exercising this control over the regulatory authority are as follows:

• Disregard for confidentiality,
• Inability to have discretion,
• Illegality, irrationality, and procedural impropriety are also exampling of procedural impropriety.

Judicial Review

Judicial review deals with three aspects-

• Judicial review of legislative action.
• Judicial review of the judicial action.
• Judicial review of administrative action.

Judicial oversight guarantees that disciplinary actions are lawful and that the administrative body remains within its boundaries. The Court wants to know how the regulatory body followed the statute. The Courts, on the other hand, cannot and should not replace the regulatory authority’s view with their own.

Natural Justice Principles

Administrative legislation mandates that the administrative adjudicatory body decides cases based on natural justice principles, which include:

• The rule against prejudice is that no one should be a judge in their own case and that justice should be served not only but even seen to be done.
• Any individual has the right to be heard before a matter is decided in his favour or against him, according to the principle of Audi Alteram Partem.
• Speaking order (reasoned decisions): The adjudicating body must explain why it made its decision. This is a recently developed theory aimed at limiting the adjudicating authority’s arbitrariness.

The distinction between article 32 and article 226

The Supreme Court has the authority to issue writs in India under Article 32. As a result, the Supreme Court’s federal authority is expanded. The High Court may only grant a writ in its own local authority, according to Article 226. The Supreme Court cannot deny Article 32 unless it is a constitutional right.

2013 Lokpal and Lokayuktas Act

The Lokpal and Lokayuktas Act, 2013, is an anti-corruption law that establishes a Lokpal institution to investigate charges of corruption against public officials and matters relating to them. Maladministration allegations are subject to review under the Act. The Lokpal’s role is similar to that of an Ombudsman.

• The Act was enacted as a part of Anna Hazare’s huge public outrage against corruption.
• The Lokpal is a Parliamentary officer whose primary responsibility is to serve as a representative for the Parliament to protect people from violence.

The doctrine of estoppel against the government

The true principle of promissory estoppel is that one party (Promisor) makes a clear and unequivocal promise to the other party (Promise) that is intended to establish legal relations or to arise in the future, knowing or intending that it will be acted upon by the other party (Promise), and it is in fact acted upon by the other party (Promise).

The Administrative Tribunals Act, 1985

Parliament passed the Administrative Tribunal Act of 1985 in response to the provisions of Article 323A, which covers all matters coming under clause (1) of Article 323-A.

• Any state must have a Central Administrative Tribunal (CAT) at the federal level and a State Administrative Tribunal (SAT) at the state level, according to this Act.

The tribunal has the authority to rule on the constitutionality of the rules and legislation in question. The Act applies to the whole country in terms of the Central Administrative Tribunal, and the entire country in terms of state administrative tribunals, except for the state of Jammu and Kashmir.

Advantages of Administrative Tribunals

Flexibility: inception of administrative tribunals in India, flexibility and versatility got ingrained in the judicial system of India.

Speedy Justice: the basic reason for the introduction of administrative tribunals is to deliver quality justice in the least time possible.

Cost-Effective: The Administrative Tribunals take less time to solve the cases as compared to the ordinary courts.

Quality Justice: If we consider the present scenario, the administrative tribunals are the best and the most effective method of providing adequate and quality justice in less time.

Relief to Courts: administrative tribunals, true to their objective, have decreased the backlog of cases in the ordinary courts.

Administrative tribunals: structure, jurisdiction, procedure, powers

• Administrative tribunals must be constitutional in nature, that is, they must have been formed by law. They must have some, but not many, of the characteristics of ordinary trials.
• An administrative tribunal has both quasi-judicial and judicial powers and is required to operate judicially under all circumstances.
• They should not follow stringent proof and protocol guidelines.
• Administrative tribunals are self-contained and immune from administrative intervention in the performance of judicial and quasi-judicial duties.
• An administrative tribunal has the same procedural rights as a judge, including the ability to call jurors, execute oaths, and compel the processing of records, among other things.

Res Judicata’s Existence and Scope

The words “res” and “judicata” signify “subject matter” and “decided,” respectively. This doctrine is based on the broader public interest, and it states that all litigation must conclude sooner or later. This principle is founded on the principles of right, equality, and morality. This means that a party who has won a case once should not be harassed in a subsequent case involving the same subject. Res judicata seeks to find a balance between two opposing forces: first, the transparency of the justice system by delivering final judgement, and second, the protection of the parties’ desires and rights that have already been agreed upon.

Commission of inquiry act, 1952: An overview

This Act establishes committees to investigate matters that are relevant to, disturb, or harm the general public. When the central government appoints a commission by the announcement in the official gazette, the act only applies from that day forward.

Meaning and features of a public corporation

A public corporation is a separate legal entity with perpetual succession and a common seal. It has an existence, independent of the Government. It can own property; can make contracts and file suits, in its own name.

Special Statute: A special Act of Parliament or the State Legislature establishes a public corporation.

Separate Legal Entity: A municipal corporation is a distinct legal body with a common seal and permanent succession.

Government-Sponsored Capital: A public corporation’s capital is supported by the government or government-controlled departments.

Financial Independence: A public company has financial independence. It creates its own budget and has the authority to keep and use its profits for its operations.

Control over public corporations in India

Regulation by Parliament, Public Control, Government Control, Judicial Control, and Central Agency Control

Parliamentary Oversight: The legislature has exclusive control of these public companies. As public officials, they are subject to the usual checks and balances of the constitution and administrative rules, as well as oversight by the Minister, who is accountable to Parliament, and by the courts, who exercise jurisdiction over administrative authorities.

• The Insurance Corporation Act of 1956 requires, in addition to the auditor’s report and the annual report, the actuaries’ report, which contains the results of the actuaries’ inquiry into the financial state of the company.

The following are the various types of regulation that a public company can face in India:

Regulation by the general public: In India, the general public has control over public companies. These businesses are government-owned and governed under special legislation. In terms of operation, these companies are self-contained. These companies have been formed for the benefit of the country and the general public. As a result, the general public has the power of public corporations.

Government Control: In the framework of economic planning in India, the policies, investment decisions and programmes for growth and expansion of public corporations have to be coordinated with national priorities and the mobilisation and allocation of resources. There are thus several areas where the intervention of the government in the management of public corporations is inevitable in the interests of national planning for this type of economy.

Central Agency Control:

Central agency controls over central public enterprises in India operate as follows

The Personnel Committee of the Cabinet makes Cabinet-level appointments. Large capital projects are approved by the Public Investment Board. The Ministry of Labour is in charge of work policy. The Central Vigilance Commission, Central Bureau of Investigation, and Central Industrial Security Force all double as watchdogs for the Home Ministry. Economically and socially backward communities may make direct representations to the Commissioner for Scheduled Castes and Tribes about the placement and promotion of their representatives in public enterprises.

Judicial Control

In India, the judiciary also has jurisdiction over public companies. Statutory corporations, also known as public corporations, are formed by statutes. The court wields considerable authority over public corporations.

There are different forms of checks and balances in place in India’s public companies.

Laws relating to corruption in India

Under the Indian Penal Code, 1860, and the Prevention of Corruption Act, 1988, public officials may be prosecuted for corruption. Benami transactions are prohibited under the Benami Transactions (Prohibition) Act of 1988. The Prevention of Money Laundering Act of 2002 makes it illegal for elected officials to launder money. Since 2005, India has been a signatory (but not ratified) to the United Nations Convention Against Corruption. The Convention addresses a wide variety of corruption-related offences and makes recommendations for prevention.

Central vigilance commission: composition and functions

The Central Vigilance Commission (CVC) is an apex Indian governmental body established in 1964 to combat governmental corruption by overseeing all vigilance under the control of the central government and advising various officials in central government organisations on how to prepare, execute, and revisit their vigilance function. It has the status of a self-governing body.

The Central Vigilance Commission’s Functions and Powers—

• Have oversight of the Delhi Special Police Establishment’s operations concerning the investigation of crimes suspected to have been committed under the Prevention of Corruption Act, 1988.
• Provide instructions to the Delhi Special Police Establishment to carry out the responsibilities assigned to it under section 4 of the Delhi Special Police Establishment Act, 1964, sub-section (1).

Parliamentary committees in India: appointment, kinds & functions

Parliamentary Committees are of two kinds: Ad hoc Committees & Standing Committees

• Standing Committees are permanent and regular committees that are formed as required by the terms of an Act of Parliament or the Lok Sabha Rules of Procedure and Conduct of Business. The work of these Committees is ongoing. Standing Committees include the Financial Committees, the DRSCs, and a few other committees.
• Ad hoc Committees are formed for a particular reason, and they are disbanded after they have completed the mission and submitted a report. The Select and Joint Committees on Bills are the most important Ad hoc Committees. Committee on Railway Conventions, Joint Committee on Food Management in the Parliament House Complex, and so on.

Overview of whistle-blower’s protection act, 2014

The act creates a system for receiving concerns over the public dissemination of charges of misconduct. A lawsuit will be filed for a term of seven years. The Whistle-blowers Act, which supersedes the Official Secrets Act of 1923, requires the plaintiff to make a public interest disclosure. Whistle-blowers would not be able to disclose any information classified under the Official Secrets Act of 1923, according to a reform measure. This calls into question the 2014 Act’s very life, which was passed in April of that year.

Conclusion

Administrative law is the body of law that governs the executive branch of government to control its operations and protect the general public against abuses of authority perpetrated by the executive or its agents. It is a modern branch of law that has developed over time and will continue to grow as society’s needs change. The aim of administrative law is not to strip away the Executive’s discretionary rights, but to align them with the “Rule of Law.”

Author: Shreyas Nair,
Symbiosis Law School, Nagpur