Development and Evolution of Administrative Law

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Development and Evolution of Administrative Law

DEVELOPMENT AND EVOLUTION OF ADMINISTRATIVE LAW

INTRODUCTION

Administrative law is the law governing the organization, procedure, powers, and duties of the Executive of the Constitution and not the Judiciary or Legislature.

During the last century, there have been enormous changes regarding the functions of Government. The main function of the State was to maintain law and order within the State and to protect the State from external aggression.

But in modern times, the activities of the State have increased. One of the main functions is to administrate the country to progress economically, socially, and culturally to constitute a welfare state.

The origin of administrative law, though unwritten, is as old as the origin of the governmental system itself. However, Administrative law witnessed rapid growth in the 20th century.

The origin of Administrative Law in France was believed to have been introduced by Napoleon in the form of the Droit Administratiff. In England, Administrative Law progressed slowly. The English Crown was originally considered as a ‘Divine Being’ and that he could commit no wrong. He was the fountainhead of Justice and the Court was named as “Kings Bench” division.

In course of time, the king rendered Justice wherever he went, not merely confining him to the Kings Bench division. Later he assigned the power of rendering Justice to a few chosen individuals called “Judges”.

In India, Administrative Law was in existence even in ancient days. During the dynasties of Mouryas and Guptas, there existed organized administration in India. Natural Justice in the form of Dharma was observed in administration.

However, during this period, there was no established principle of administrative law in existence.

DEFINITION OF ADMINISTRATIVE LAW

It is difficult to evolve a satisfactory definition of Administrative Law. Many jurists have made attempts to define Administrative Law, but none have succeeded in giving a clear picture of what Administrative Law is:

Ivor Jennings defines Administrative Law as “the law relating to the administration. It determines the organization, powers, and duties of administrative authorities”.[1]

This definition is broad and includes various matters like Administrative Organisation, the law of Civil Service, etc.

But it does not include the enormous number of substantive laws produced by the agencies. It also does not mention procedures but leaves them to be implied by words like ‘organization’, ‘powers’, and ‘duties.’

EVOLUTION AND DEVELOPMENT OF ADMINISTRATIVE LAW IN FRANCE

DROIT ADMINISTRATIVE

The present Administrative Law is the outcome of the French Administrative Legal System called Droit Administratiff.

In France, the Administrative Law, otherwise called Droit Administratiff was fully developed even before the twentieth century but was put into effect by Napoleon in 1800.

Droit Administratiff contained rules relating to the regulation of administrative authorities. It regulated the relationship between public servant and citizen, a public servant with the Government, and a public servant with other public servants.

Droit Administratiff was defined as the body of rules which regulates the relations of administration and administrative authorities towards the public citizens. It contained rules regarding the qualifications of Government officials, the rules regarding their appointment, their status, salary, duties, their dismissal, and suspension.

It contained three types of rules:

  1. Relating to administrative officials
  2. Operation of public services
  3. Administrative adjudications

The Droit Administratiff was the outcome of three principles:

  1. Judges of Civil Court enquiring about the administrative actions were not welcome.
  2. The encroachment of the Civil Courts in the dealings of the administrative authorities was not welcome. So for breach of Droit Administratiff, the remedy must be sought only before the administrative Court namely Conseil ‘D’ Etat.
  3. Droit Administratiff contains the rules developed by the administrative Courts and not by the laws of parliament.[2]

DICEY’S CRITICISM OF THE DROIT ADMINISTRATIFF

Dicey criticized Droit’administratiff as violative of the Rule of Law. According to him, Droit Administratiff is different from the Rule of Law. He gives the following reasons in support of his view.

  1. Droit Administratiff is a body of separate rules regulating only the Executive, their powers, and privileges.
  2. In France, separate Courts namely Conseil ‘D’ Etat applied the Droit Administratiff.
  3. The State officials in France enjoyed certain immunities e.g., for Acts of State, the executive authorities are not liable.
  4. In France, there is an encroachment on the jurisdiction of ordinary Courts and ordinary law, as they cannot exercise jurisdiction over administrative authorities.
  5. The Government Officials can be prosecuted before a Criminal Court, only after getting the prior sanction of Conseil ‘D’ Etat. Because of the above reasons, Dicey said that the Administrative Law in France did not follow the Rule of Law.

But in England, the Rule of Law was followed, because there were no privileges for the executive authorities. Though Dicey accepts that there can be efficient administration, discipline, and expert knowledge, the Administrative Court and system were aimed against individual liberties, and hence according to Dicey, ‘Droit Administratiff’ is not law, as it did not obey ‘rule of law’.[3]

COURTS IN FRANCE

Two types of courts existed in France. They were:

  • The first types of Courts in France are Civil and Criminal Courts and they are called Assize and Court Decassation
  • The second type of Courts are Administrative Courts called by the name ‘Court of the perfect’ and Conseil ‘D’ Etat.

These two types of Courts are mutually exclusive, i.e., one Court cannot exercise jurisdiction over the other Court.

In other words, the action of the administrative authorities cannot be questioned before the ordinary Courts, but only before Administrative Courts. Questions like taxation, election, etc., were all heard only by the judges of the Administrative Courts.[4]

Reasons for the origin of Administrative Courts

The Administrative Courts in France are the outcome of French political history. During the rule of Louis XIV and Reihlieu, the French Government was highly centralized. The executive authorities were despotic (Arbitrary) and the Civil Courts could not control them.

Because of the despotism of the administrative authorities during the period of Napoleon, Special Administrative Court and Administrative Law were enacted. The Administrative Law was known as ‘Droit Administratiff’ and the Administrative Court was called Conseil ‘D’ Etat.

The Law Courts were deprived of jurisdiction in administrative matters and the Administrative Courts began to exercise jurisdiction in all administrative matters.[5]

CONSEIL’D’ ETAT

The Conseil ‘D’ Etat i.e., the highest Administrative Court framed many administrative rules. It was composed of eminent Civil servants of the Government. It heard cases relating to income tax, pension, election dispute, wrongful dismissal and suspension of servants, etc. It interfered with the administrative actions of the executive on the ground of error of law, lack of jurisdiction, irregularity of procedure, etc.

It also laid down the powers of each administrative staff of Administrative Courts. It also laid down the necessary guidelines of sanction for starting public works, etc. It provided relief to the citizens against the excesses of the administration. Its judgments were final. It acted as a consultative body also.[6]

TRIBUNAL DES CONFLICTS

A separate Court named “Tribunal des Conflicts’ decided disputes as to jurisdiction between ordinary Courts and administrative Courts. Only an administrative Court and not the ordinary Court can raise a case relating to a conflict of jurisdiction.

An equal number of judges from both the ordinary civil Court and from Conseil ‘D’ Etat constitute the Tribunal des conflicts and it is presided over by the minister of justice. The decision of the Tribunal des conflicts regarding the competency of jurisdiction final.

ORIGIN AND DEVELOPMENT OF ADMINISTRATIVE LAW IN ENGLAND, U.S.A AND INDIA

IN ENGLAND

The earliest ‘King’s Court’ was called ‘Curia Legis’. Later the ‘Curia Legis’ was divided into three bodies namely:

  1. A The ‘Kings Bench’ division deals with crimes and breaches of the peace.
  2. The ‘Court of Exchequer’ concerning the revenue disputes.
  3. The ‘Court of Common Pleas’ concerning all disputes between one citizen and another citizen.

  • RULE OF LAW

There were controversies between the King and the Judges and one instance was between the Chief Justice of common pleas namely Sir Edward Coke and Crown James I.

Sir Edward Coke refused to submit to the Royal prerogative. This controversy led to the abrupt dismissal of Sir Edward Coke from the post of Chief Justice. However, it was Coke who took steps to enact the petition of rights to control the worst tyranny of Kings. He formulated the Rule of Law to which the Kings were obliged to obey. The Act of Settlement was also enacted to assure the fixed tenure of judges’ posts.

The Habeas Corpus Act transferred most of the powers from the king to the parliament. The Sovereignty of parliament was also sometimes, tyrannical and it was through the judiciary that the Parliament’s tyrannical acts were controlled. In the 18th century, prerogative writs were recognized which gave remedy to private citizens against the arbitrary acts of the executive authorities.[7]

  • INDUSTRIAL REVOLUTION

In the 18th and 19th centuries, the Industrial Revolution in England resulted in the establishment of many industries and factories. Many labor legislations were enacted. The parliament set out the main principles in such legislations alone.

Thus, the dawn of Administrative Law began with the Industrial Revolution in England. In course of time, many Administrative Tribunals began to be established and expedient rules had to be framed based on policy. The inherent problems involved in Administrative Law and its decisions were due to the deficiencies of the Rule of Law and the sovereignty of parliament.[8]

  • DONOUGHMORE COMMITTEE

The Donoughmore Committee was appointed in England to investigate the administrative problems. The Commission made the following references:

  1. The principle of natural justice must be followed in all administrative proceedings.
  2. There must be checks and safeguards against the arbitrary acts of the Administrative proceedings.
  3. Though delegated legislation is against the principle of separation of powers, it has become an inevitable evil in the context of modern socio-economic developments. The Delegated Legislation is deep-rooted and is ever-growing.
  4. In delegated legislation, the statutes are passed in skeleton form leaving the details to be filled up by the Administrative authorities. This is not desirable, as it would give room for arbitrary rules to creep in.
  5. Controls over subordinate legislation are inadequate. The parliament has no time and opportunity to keep a constant watch on the executive. The judicial control is unsatisfactory because of the vaguely defined words in the statutes. Further, the Court proceedings are expensive and time-consuming.
  6. Adequate publicity of statutes is not always possible and therefore the delegated legislation will suffer from a lack of knowledge by the public.
  7. The Donoughmore Committee calls ‘delegated legislation’ ‘legislation by reference’ due to the relatively simple legislative procedure.

The legislation in the English Parliament had incorporated the report of the Donoughmore Committee. Many administrative agencies arose in England like the Board of Trade, Railways, Traffic Tribunals, etc.

Similarly, certain Ministries like Education and Home affairs decided on many administrative cases which were properly cognizable only by Courts. Many autonomous bodies like Marketing Board and Tribunal, Bar Council, and General Medical Council came into existence and acted quasi-judicially.

In 1895, the Government of England thought it fit that these Agencies must be checked or controlled.[9]

  • SIR OLIVER FRANKS COMMITTEE

Sir Oliver Franks Committee was appointed to investigate and report on the Minister’s powers. The report made many recommendations which brought about many changes and results in the functioning of administrative tribunals.

The following are some of the important recommendations:

  1. The Administrative Tribunals are permanent parts of the Government machinery.
  2. The proceedings of this Administrative Tribunal must be fair and impartial.
  3. There must be a uniform system of appeals both to the higher Tribunal and the Court.
  4. Legal representation must be allowed before Tribunals.
  5. The Presiding Officers of the Tribunal must be legally qualified.
  6. The decisions must be published.
  7. Tribunals must be set aloof from the department.

The report had some defects also as it did not state the extent of judicial powers of Ministers and Redressal machinery to the affected citizens against the misuse of powers by administrative authorities.[10]

  • RULE IN RIDGE Vs. BALDWIN

Even in the present days, it is felt that in England, there is no developed system of Administrative Law, as is held in Ridge Vs. Baldwin.

Mr. Wade declared that there is no Droit Administratiff in this country. However, the theory is that the Ministers are not above the law and that there is Administrative Law in England.[11]

ADMINISTRATIVE LAW IN U.S.A (AMERICA)

The American Administrative Law existed even in 1789, but only in 1887, did it come to be recognized through statutes, like Interstate Commerce Act, etc.

  • AMERICAN ADMINISTRATIVE LAW AND AMERICAN POLITICS

The American Administrative law had intimate links with American politics, constitutional and public laws, and also the Economic and Social problems of the country.

  • INTERSTATE COMMERCE COMMISSION

In the Transport system of America, there was an unregulated exercise of power. Many private organizations were competing with one another. The Interstate Commerce Act 1887 established the Interstate Commerce Commission to prevent excessive changes in rules and discriminatory practices by railways and roadways.

The Commission was an autonomous entity and termed as Administrative Regulatory Commission. In course of time, this Commission was vested with the power to make rules to entertain and decide cases. The American Courts interfered with the decisions of these Commissions and often set aside their decisions on frivolous grounds.[12]

  • HEPBURNRN ACT 1906

To avoid this conflict between the Commission and the Court, the Hepburn Act 1906 was passed. The Act enlarged the powers of the Commission and it was authorized to hear all social evils on the commercial side.

At present, there are at least 100 such Commissions in the U.S.A. the World war multiplied the number of these Tribunals. These Agencies are now very powerful bodies and one judge has quoted. “These bodies have become the veritable fourth branch of the Government”.

To check the arbitrary powers of these bodies, the Government appointed many Commissions and among them the Roscoe Pound Commission, and the President’s committee in 1937 were important. The Humphrey Case and Weiner Vs. The United States has brought about the irregularities committed by the Commissions.[13]

  • ADMINISTRATIVE PROCEDURES ACT 1946

The Administrative Procedures Act 1946 had to be enacted to regulate the proceedings of these Commissions.

The following are some of the important provisions:

  1. The rules framed by the body must be published.
  2. Sufficient opportunity must be given to both the parties of the suit.
  3. There should not be any ‘off the record’ consultation with any person by the hearing officer.
  4. The independence of the Hearing Officer must be secured.
  5. All reports of Tribunals must be published.
  6. Judicial Review must be provided.[14]

ADMINISTRATIVE LAW IN INDIA:

  • BRITISH PERIOD

Well-organized administration existed only during the period of the East India Company and only during the British Rule in India, many royal Charters, Acts, Statutes, and Legislations were passed in different fields of life like transport, labor, and safety, morality, etc.

  • CHARTER ACTS

The following are the several Charter Acts, which have relevance to administrative law and its growth.

Charter Act 1726:

Under the Charter Act 1726, attempts were made to separate the executive from the judiciary.[15]

Regulating Act 1773:

  1. In 1773, the Regulating Act was passed with the object to bring the management of the company under the control of the British Parliament and the British Crown. This Act introduced many reforms in the company’s Government in India. Under this Act, several legal provisions were made for the new Government’s administration under the Governor-General and Council.
  2. The Governor of Bengal was designated as the Governor-General of Bengal. The Presidencies of Bombay and Madras were brought under the control and superintendence of the Governor-General and Council.
  3. the Governor-General and Council were empowered to make rules and regulations and ordinances. The rules, regulations, and ordinances made by the Council were required to be just, reasonable, and not repugnant to the Laws in England.
  4. The Regulating Act, 1773 empowered the Governor-General and council to make rules, regulations, etc., for the administration of the Government. Such rules etc. came into force after being published and registered with the Supreme Court and with its consent.[16]

CORNWALLIS CODE 1793

In 1793, the Cornwallis code containing a set of 48 regulations was published.

CHARTER ACT 1800

The Charter Act of 1800 empowered the Governor in Council of Madras to regulations for the Mofussil Courts and Council in that Presidency.

CHARTER ACT 1807

In 1807, each Presidency Government was empowered to make regulations for the presidency town and also for the Mofussil places under its administrative control.

CHARTER ACT 1813

Charter Act of 1813 extended the legislative powers of the government to all three Presidencies. It authorized them to levy taxes also.

CHARTER ACT 1833:

Charter Act of 1833 empowered the Governor-General in Council to appoint a Law Commission and as a result, the First Law Commission was appointed in India in 1835.[17]

IMPORTANT ADMINISTRATIVE STATUTES:

The following are the important statutes enacted during the second half of the 19th century and the first half of the 20th century.

  1. Dramatic Public Performance Act, 1876
  2. Opium Act, 1878
  3. Explosives Act, 1884
  4. Indian Petroleum Act, 1899
  5. Cinematograph Act, 1918
  6. Indian Boilers Act, 1923
  7. Dangerous Drugs Act 1930
  8. Indian Medical Council Act, 1933

In the field of Transport, the Indian Railways Act 1890, Motor Vehicles Act 1914, Indian Merchants Shipping Act, 1923, and Motor Vehicles Act, 1939 were enacted.

In the field of Labour, Employers and Workmen Disputes Act 1923, Indian Trade Disputes Act 1929, Factories Act 1934, and Payment of Wages Act, 1936 were enacted.

The important notable economic enactments are the Companies Act 1850, the Companies Act 1913, the Cotton Transport Act 1923, the Tea Control Act 1934, the Reserve Bank of India Act 1934, and the Rubber Act 1934.[18]

  • AFTER INDEPENDENCE

After independence, India became a welfare state and the Indian Constitution became a major source the for growth of administrative law.

According to Article 43-A of the Constitution, the State must take steps by suitable legislation to secure the participation of workers in industrial management.

Article 45 provides that the state shall endeavor to provide, within 10 years from the commencement of the constitution free and compulsory education for all children until they complete the age of 14 years.

Article 47 provides that the state shall endeavor in raising the level of nutrition and the standard of living of its people and the improvement of public health.

Article 48-A the state shall endeavor to protect and improve the environment and safeguard the forests and wildlife of the country.

Article 300 provides for the liabilities of the Government for the torts committed by its servants.

Article 311 protects the civil servants by prescribing the procedure to be followed in dismissing terminating and reducing the rank of a public servant.[19]

  • IMPORTANT ACTS PASSED AFTER INDEPENDENCE:

Several acts were passed after the independence in the administrative field.

Some of the important Acts are- the Industrial Disputes Act 1947, Minimum Wages Act 1948, Employees Insurance Act 1948, Industries (Development and Regulation) Act 1951, Essential Commodities Act 1955, Companies Act 1956, Banking Regulation Act 1949, Income Tax Act 1961, Payment of Bonus Act 1965.[20]

  • ROLE OF SUPREME COURT AND HIGH COURTS IN THE GROWTHNOF ADMINISTRATIVE LAW

The Supreme Court and the High Courts have been given wide jurisdiction to check the administrative excesses and arbitrariness

The judgments of the Supreme Court and High Courts act as precedents to be necessarily followed by Administrative Tribunals in deciding administrative matters.

Further, the judiciary takes into consideration the objects and ideals of the social welfare state while interpreting the statutes and their Constitution.

Articles 32 and 226 of the constitution provides for judicial review in the form of writs against ultra vires acts of the administrative authorities.[21]

CONCLUSION

Administrative law is considered one of the most outstanding developments of the twentieth century due to cha changes in the Government’s philosophy, the growth of delegated legislation, and the slow and expensive judicial process. Administrative law has become a subject of study in all curriculums of Indian Law Universities.

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AUTHOR: Adithya Narayanan,

5 Yr BBA-LLB, SDM Law College,

Mangalore, Karnataka.

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