Administrative law has been characterized as the most outstanding legal development of the 20th century. It does not mean, however, that there was no administrative law in any country before the 20th century. Being related to public administration, administrative law should be deemed to have been in existence in one form or another in every country having some form of government. It is as ancient as the administration itself as it is a concomitant of organized administration.[1]
The opening statement signifies that administrative law has grown and developed tremendously, in quantity, quality and a relative significance, in the 20th century that it has become more articulate and definite as a system in Democratic countries that it has assumed a more recognizable form in the present century so much so that it has come to be identified as a branch of public law by itself, distinct and separate from Constitutional law, if its subject matter is of independent study and investigation in its own right then rapid growth of administer law in modern times is the direct result of the growth of administrative powers and functions.
Earlier the state was characterized as the law and order state and its role was conceived to be negative as its interest 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 an era of free enterprise and minimum governmental responsibility and functions. The management of social and economic life was not regarded as government responsibility. This laissez Faire doctrine resulted in human misery. [2]
But all the things changed with the advent of independence. A conscious effort to begin to be made to transform this country into a welfare state the philosophy of welfare state has been ingrained in the preamble to Indian Constitution and the directive principles stated therein. The emergence of the social welfare concept has affected the democracies very profoundly. It has led to state activism. There has occurred a phenomenal increase in the area of state operation it has taken over a number of functions which were previously left to private enterprise.
The state today provides every aspect of human life, the functions of a modern state may broadly be placed into five categories, the state as protector, provider, entrepreneur, economic controller and arbitrator.
Reasons for the growth of Administrative law[3]
- Change in the concept of government: The rapid growth in administrative law has changed the concepts of the role and function of the modern government. The doctrine of laissez faire has given place to the doctrine of welfare state and this in fact has led to proliferation of administrative powers and functions. The result is that the development of administrative process and administrative law has become the cornerstone of modern political philosophy.
- Demand of the people: there is the constant demand from the people that the government must solve their problems rather than to define their rights. By doing so, the government comes forward to actively help the weaker section of the society to be based on right to equality in reality.
- Regulatory measures: the regulation of the patterns of ownership, production and distribution is considered the responsibility of any good government to ensure the maximum good of the maximum number.
- Evolution of socialistic pattern of society: a welfare state has necessarily to undertake legislation on ever widening front, if the ultimate aim of a socialistic pattern of society operating within the domain of the rule of law is to be evolved by democratic process. The legislative output of parliament and State legislatures calls for trained personnel to implement them. Therefore there is a need for the growth of administration and law regulating administration.
- Inadequacy of judicial system: the inadequacy of the traditional type of judicial system to give that quality and quantity of performance which is required in the 20th century for the functioning of welfare and functional government is the biggest single factor which has led to the growth of administrative process and law. Litigation is no more considered a battle to be won but a disease to be cured. This new challenge has led to the growth of administrative adjudication.
- Inadequacy of legislative process: administrative action has been called upon to fill in the substance of legislation where it is impossible for the legislature to lay down detailed rules in advance. Even when detailed provisions were made, they were found to be defective and inadequate. Eg; rate fixing, licensing, etc. Therefore, inevitable growth of administrative legislative process.
- Scope for experimentation in administrative process: legislation is rigid in character while administrative process is flexible. In administrative process, there is scope for experimentation. Here the rule can be made, tried for some time and if it is found defective, it can be altered or modified within a short period. Administration can change an unsuitable rule without much delay.
- Non-technical character of administrative process: administrative agencies can avoid technicalities. The traditional judiciary is conservative, rigid and technical. The courts cannot decide cases without formality and technicality. Administrative tribunals are not bound to follow the rules of evidence and procedure. They can take practical view of the matter and decide complex problems as required in view of the socio-economic conditions.
- 9. Adoption of preventive measures: administrative agencies can take preventive measures unlike ordinary courts of law they have not to wait for the parties to come before them with disputes. In many cases these preventive actions may prove to be more effective and useful than punishing a person after he has committed a breach.
10.Policing of preventive measures: administrative agencies can take effective steps for enforcement of preventive measures e.g. suspension, revocation, cancellation of licences, destruction of contaminated articles, etc. Which are not generally available through ordinary courts of law.
- Principles of good governance: The role model for governance and decision taken thereof should manifest equity, fair play and justice. The cardinal principle of governance in a civilized society based on rule of law not only has to base on transparency but must create an impression that the decision-making was motivated on the consideration of probity. The act of governance has to withstand the test of judiciousness and impartiality and avoid arbitrary or capricious actions.
DEFINITIONS
IVOR JENNINGS
Administrative law as the law relating to administration.
It determines the organization, powers and duties of administrative authorities. This formulation does not differentiate between Administrative and Constitutional law. It lays entire emphasis on the organization, power and duties to the exclusion of the manner of their exercise. For example, administrative law is not concerned with how a minister is appointed but only with how a minister discharges his functions in relation to an individual or a group. How the minister of housing and rehabilitation is appointed is not the concern of administrative law, but when this minister approves a scheme for a new township, which involves the acquisition of houses and lands of persons living in that area, questions of administrative law arise. Sir Ivor Jennings formulation also leaves many aspects of administrative law untouched, especially the control mechanism. [4]
DICEY
He did not recognize the independent existence of administrative law. He defined administrative law as denoting that portion of a nation’s legal system which determines the legal status and liabilities of all state officials, which defines the rights and liabilities of private individuals in their dealings with public officials, and which specifies the procedure by which those rights and liabilities are enforced. The definition is narrow and restrictive in so far as it leaves out of consideration many aspects of administrative law, Dicey opposed the French droit administratiff and therefore his formulation mainly concentrated on judicial remedies against state officials. Therefore, this definition excludes the study of every other aspect of administrative law. The American approach is significantly different from the early English approach, in that it recognized administrative law as an independent branch of the legal discipline.
According to Kenneth Culp Davis, Administrative law is a law that concerns the powers and procedure of administrative agencies, including especially the law governing judicial review of administrative action.
Davis includes the study of administrative rulemaking and rule adjudication but excludes rule application which according to him, belongs to the domain of public administration. In one respect, this definition is proper as it puts emphasis on procedure followed by administrative agencies in exercising their powers. It does not include the enormous mass of substantive law produced by the agencies. An administrative agency, according to Davis, is a governmental authority, other than a code and other than a legislative body, which affects the rights of private parties through either adjudication or rulemaking.
The difficulty in accepting this definition however, is that it does not include many nona djudicative and yet administrative functions of the administration which cannot be characterized as legislative or quasi-judicial. Another difficulty with this definition is that it puts an emphasis on the control of the administrative functions by the judiciary, but does not study other equally important controls, example parliamentary control or of delegated legislation, control through administrative appeals or revisions and the like. Garner also adopts the American approach advocated by Casey Davis According to him, Administrative law may be described as those rules which are recognized by the courts as law and which relate to and regulate the administration of government.[5]
According to Wade, administrative law is the law relating to the control of governmental power. According to him the primary object of administrative law is to keep the powers of the government within their legal bounds so as to protect the citizens against their abuse. The powerful engines of authority must be prevented from running amok.
Undoubtedly this definition places considerable emphasis on the object of Administrative law by touching the heart of the subject. It does not, however, define the subject. It also does not deal with the powers and duties of administrative authorities nor with the procedure required to be followed by them.
Griffith and Street, According to Griffith and Street, the main object of administrative law is the operation and control of administrative authorities.
It must deal with three aspects
- What sort of power does the administration exercise?
- What are the limits of those powers?
- what are the ways in which the administration is contained within those Limits?
According to the Indian law Institute, the following two aspects must be added to have a complete idea of present-day administrative law
- what are the procedures followed by the administrative authorities?
- What are the remedies available to a person affected by administration?
According to Jain and Jain Administrative law deals with the structure, powers and functions of the organs of administration, the limits of their powers, the methods and procedures followed by them in exercising their powers and functions, the methods by which their powers are controlled including the legal remedies available to a person against them when his rights are infringed by their operation.
Administrative law, according to this definition, deals with four aspects. Firstly, it deals with composition and the powers of administrative authorities Secondly, it fixes the limits of the powers of those authorities. Thirdly, it prescribes the procedure to be followed by these authorities in exercising such powers Fourthly, it controls these administrative authorities through judicial and other means.
The unenviable diversity in definitions of the term administrative law is also due to the fact that a vary Administrative law specialist tries to lay more emphasis on any one particular aspect of the whole administrative process, which according to his own evolution desires singular attention.[6]
[1] Administrative Law, C.K Takwani
[2] Administrative Law text (1959)
[3] Study Material of Administrative Law by KLE Academy Belagavi.
[4] Tissy Annie Thomas, All you need to know about Administrative Law, 2018, June 26, blogs.ipleaders.in/administrative-Law-1
[5] Team@LawTimeJournal,growth-of-administrative-action-in-india-and-its-importance/lawtimesjournal.in/
[6] Administrative Law, C.K. Takwani
