Sources of Administrative Law

Introduction

Administrative Law is a branch of Public Law that governs administrative agencies of the Government, it deals with the decision making of administrative units of the Government. Police law, International Trade, Taxation, Manufacturing, etc. are part of Administrative Law. This law governs or controls the exercise of powers and duties by public authorities, governs the relationship between civil servants and the public and lays down relations between the civil servants and the state. There is no specific statute defined for the administrative law, it is an essential, unwritten, non-codified or well-defined law like the Constitutional Law, the Evidence Act, the Contract Act, etc. or even a Judge-made law.^[1] But Administrative Law is connected to all other statues of the law.
Administrative law has not been defined in any substantial or procedural law which governs the sovereign country, but certainly, there are some aspects defined on which the entire base of administrative law functions. It derives power from the legislature to rule which enriches the implementation of the law. Constitutional law defines the laws to be imposed and administrative law administers those laws in the society and is mainly concerned with the proper functioning of various wings of the Government. The core of this concept is, to impose the law enacted in such a manner so as to provide benefits to each citizen of the country.

Definition and Meaning of Administrative law

It’s quite complex to define Administrative Law. The Indian Constitution has three major parts: Legislature, Executive, and Judiciary. The Legislature is responsible for making laws that will govern a state, Judiciary keeps a check on laws (given by Legislature) and orders (issued by the Executive) and ensures that these laws and orders do not curtail the fundamental rights of citizens of the country and reviews the same whenever required. How is it actually functioning? Whatever governs the organization, the procedure, powers and duties of the Executives can be thus, considered, collectively as Administrative Law.

Administrative Law is a body of law that governs the administrative agencies through rulemaking, adjudication and enforcement of specific regulatory agendas of the Government. Administrative activities are mainly concerned with the implementation of the law and keeping eye on the bodies governing or executing the country. Administrative laws affect better functioning of the organization of Legislatures and the Judiciary. Some definitions given by eminent personalities are:

Dicey defines it as, “denoting that portion of the national legal system which determines legal status and liabilities of all state officials, which defines rights and liabilities of private individuals on their dealing with public officials which specifies the procedure by which those rights and liabilities are enforced.”^[2]

According to Wade, it’s “the law which is relating to the control of governmental power.”

Ivor Jennings’s view, “it’s a law relating to the administration. It determines the organization, power and duties of administrative authorities.”^[3]

Further, K.C Davis states, “Administrative law is the law concerning the powers and procedures of administrative agencies, including especially the governing judicial review of administrative action.”^{^[4]}

Administrative law is that part of the protected law which manages the forces and obligations of managerial specialists, the system followed by them in practising powers and releasing the obligations and the cures accessible to an abused individual when his privileges are influenced by the activity of such authorities.
Administrative law is indistinct without a doubt however it conveys significance as characterized particularly in the Indian view. It’s a procedure by which specialists get power from councils to manage certain capacities which are required to be performed for the improvement and implementation of laws characterized.

Need and Justification for Administrative Discretion

Country administrators have administrative discretion for the following reasons.

The current problems of the administration are complex and different and it is difficult to understand them all within the general rules.
Most problems are almost new from first impressions. Lack of experience in dealing with them does not justify the adoption of general rules.
It is not always possible to anticipate every problem, but if a problem arises, it must be resolved by the Administration, although there are no specific rules in the situation.
Circumstances differ from case to case, so the mechanical application of a rule can, in any case, lead to injustice.

The very first question that comes to an individual’s mind is, “where are these administrative laws formulating? or, “what are the sources of these administrative laws?” The principles and rules of Administrative Law are found in many other sources and statutes as Administrative Law is uncodified and there is no specific statute in which administrative law is completely defined.

The Constitution

India has the longest written constitution in the world which is the supreme law of the land. Being the Grundnorm of the legal system of the country, the conditions of the constitution overrides all Legislative and Administrative actions. It mainly provides broad principles on the conduct and accountability of the state, the principle of direct democratic participation by citizens and therefore the rule of law. It also constitutes the principle of the separation of powers by allocating law making power to the house of people’s representatives, executive power cumulatively to the Prime Minister and Council of Ministers, and finally the power to interpret the laws to the Judiciary. The Constitution is the primary source of Administrative Law.

Indian constitution doesn’t speak rigidly on the separation of powers, though the concept is available in the constitution. All the legislative activities of the organization have been explicitly brought by the Constitution inside the domain of Article 13(3)(a)^[5] by characterizing law as order, by-law, rule, notification and so on having the power of law. Each one of these highlights of the constitution impacts and shapes the character and substance of the law in India. Any order or any law passed which endangers or violates the rights of any citizen provided as Fundamental Rights will attract the action of the review or any misconduct detected in functions will also need to be reviewed by the Judiciary having powers to make a decision on the Executive matters. Administrative Law doesn’t give rights, but however gives the method to execute these rights guaranteed through existing standards, rules and remedies.

Legislation

The simple meaning of Legislation is to make or enact laws to create or introduce new rules and ordinances in the system. In England, the Parliament is considered to be the highest legislative authority that makes laws and those laws are considered to be the highest admirable. On the other hand, India, following the most important case of Kesavananda Bharati ^[6] which reads as the Parliament having the ultimate power to amend laws along with Fundamental Rights but does not have the power to amend the basic structure giving unlimited power to introduce new laws which ultimately or otherwise does not affect the individual’s power given by the Constitution.
Laws passed by the Parliament which can lead to the creation of an administrative authority or the precise procedure that the exact authority must follow in the exercise of its powers are often considered to be the main sources of law studies. Law on job creation called the empowerment clause or the act of the parents clearly defines the limit of the powers conferred on a particular authority. An administrative measure that exceeds this limit is ultra-virus and, in most countries, the Courts can intervene and void the measures. Besides, the Parliament is expected to provide a minimum procedure for granting of a particular power, as is often the case to ensure public justice of the administration.

Delegated Legislation

Rules, guidelines and regulations issued by the Council of Ministers and the individual administrative authorities are also the focus of Administrative Law. The Administrative Law deals with delegated legislation to determine its constitutionality, legality or validity and to guarantee that it has not interfered with the fundamental rights of citizens. One part of such an assurance is that the guidelines need to mandatorily meet certain procedural prerequisites, similar to interview (open support) and distribution (transparency in government organization). The arbitrary exercise of power leads to arbitrary administrative measures, which in turn violate the rights and liberty of citizens. Therefore, the content and procedure of delegated legislation is an important source of administrative law.

Mukherjee J^[7], “delegated legislation is an expression which covers a multitude of confusion. It is an excuse for the legislatures, a shield for the administrators and provocation to the constitutional jurist…”

The legislation created by delegated legislation must be adopted as per the purposes set out in the law. Law made by the Parliament creates the framework for a particular law and usually only contains an overview of the purpose of the law. By empowering the Parliament to delegate laws, you enable other people or agencies to provide more details about a law of the Parliament. The Parliament, therefore, allows others through Primary Legislation (i.e., a law of the Parliament) to pass laws and regulations through delegated legislation.^[8]

Ordinances

The power to regulate refers to the legislative powers of the Director-General of the Union and the States. Article 123 of the Indian Constitution, which deals with the legislative powers of the President, empowers the President to issue regulations during the break-in Parliament, and Article 213 gives the Governor a similar power to pass regulations during the break of the Parliament.
These provisions have ensured considerable flexibility for both the Union and the State to adopt laws to deal with emerging situations and to take into account the circumstances created by laws annulled by the courts. Serious inconvenience to the public would arise if a law such as the Bombay Sales Tax Law was annulled. There would be no machinery to enact a valid law immediately. However, it should be remembered that, according to the Indian Constitution, a validation law must pass Part III of the Constitution. It should also be noted that regulations empowering the Director-General is not unlimited or widespread. According to the Constitution, the President or the Governor can issue regulations on the advice of the Council of Ministers. Approval of the houses is required to confirm the regulation. This way, power is subject to legal control.

Judicial Opinions

Most, but not all of the doctrine that includes and controls administrative powers are found in Judicial Analysis from other sources. Most Administrative Law is not just found in legal opinions. Furthermore, the views themselves must be followed carefully to avoid generalizations about the agency’s behavioural controls, which may not be appropriate, as the outcome of many cases may trigger particular legal language that does not necessarily reflect the nature of disputes in other agencies. Administrative law is characterized by a lack of generalization and fluctuating effects. There can be two reasons for this. First, cases brought to Court through Judicial Review are negligible compared to the government bureaucracy and the administrative process. Second, it is even possible to find starting points between two apparently similar cases.
The legal perspective is by no means considered the least administrative source. The problem is unknown to judges, lawyers, and officials, much less to the poor and laity who are expected to appeal against illegal government acts and abuse of power by officials. Hopefully, given the current preceding rules, the legal perspective may play a limited role as one of the sources of Administrative Law in India.

Quasi-Legislative Administration

When an Administrative authority exercises its regulatory authority, it acts in a quasi-legislative manner. Administrative authorities acquire this power to enact rules and regulations that influence legal rights through laws. This power is an exception to the general principle that law affected rights can only be passed by elected legislators.
Administrative agency rules are only issued with the permission of the elected legislator, and the elected legislators can override an administrative rule or even remove an agency. In this sense, quasi-legislative activity is at the discretion of the elected officials. However, the administrative authorities independently create and enforce many legal regulations, often without the advice of the legislator, and these regulations are legally binding. This means that they are binding on the general public.
A Quasi-Legislative Administration is a term coined for administrative instructions. A growing modern trend is the issuance of instructions by the Government functioning. In any intensive form of Government, the convenience and effectiveness of the administrative instructions issued by the administrative authorities superior to their subordinates cannot be avoided. The “direction of administration” is an extremely effective method of achieving a certain degree of uniformity in the exercise of the discretionary powers of the administration and in determining policy and its uniform application. These instructions also serve to provide management with the desired flexibility without technical problems associated with the regulatory process.

Ganga Pollution Case

The case of MC Mehta v. Union of India & Ors.^[9], (Ganga Pollution case) had given certain instructions concerning the industries in which the tanning shop near Kanpur was located on the banks of the Ganges. Sometimes, the Court had held that cases concerning local authorities and industries responsible for water pollution in the Ganges are dealt below, and the Court, therefore, considered this case against Kanpur Nagar Mahapalikas, since Kanpur is one of the major waterfront cities. Nagar Mahapalikas and the local Government were primarily responsible for maintaining cleanliness in lower areas under local authority laws, for its responsibility and for protecting its environment, the Water (Prevention and Control of Pollution) Act of 1974 (water law) was adopted for prevention and control of water pollution, etc.

The Environment (Protection) Act of 1986 contained provisions for control, prevention and reduction of water pollution. Although the State Parliament and the Legislature have passed laws imposing obligations to prevent and control water pollution by Central and State Councils and Municipalities, many of their provisions have not been passed with appropriate measures. Every day, 274.50 million litres of waste water from the city of Kanpur is discharged into the Ganges, the highest in the state of the U.P. Sewer cleaning had never been done systematically in Kanpur, and there was dysfunction and suffocation of the urban sewer. Water pollution in the Ganges was high in Kanpur, and the water supply has caused a lot of misery, disease and death due to these diseases.

The petitioner presented this request as a Public Interest Litigation. From an early age, the powers of the Judiciary are limited in certain areas. In this case, it has been argued that legislators are not only interpreters of the law, but can also impose obligations by providing guidance to Administrative and Judicial Authorities. It thus, shows how the Judiciary is involved in the implementation and administration of the law.

Conclusion

Administrative Law is part of the Indian constitution and has no special authority. The jurisdiction of Administrative Law falls only under Constitutional law and is limited in certain matters. It only derives powers from the Constitution and administers them in the public interest. Administrative Law is required to maintain the Rule of Law. Administrative law is an administrator of the Rule of Law by applying its delegated power which forms the core of Administrative law and the Judicial and Judicial authorities conferred by the “Constitution”.

References

Books

C.K Thakkar on Administrative Law, Second edition 2012 ISBN- 9350282518
C.K Takwani lectures on administrative law third edition, reprinted in 2004 ISBN-8170126398
Administrative Law, S.P. Sathe, 7^th Edition,2008, LexisNexis Butterworths
Administrative Law, I.P. Massey, 7^th Edition, 2009, Eastern Book Company
Issues and Crisis of Public Administration– Codes and Guidelines, Ranjan Kumar Ramani, 1^st Edition, 2008, Cybertech Publication.

Articles

Mubashshir Sarshar, Student at National Law University, Delhi on NATURAL JUSTICE AND ITS APPLICATIONS IN ADMINISTRATIVE LAW
Article by Sunita Zalpuri, J&K IMPA,
Jammu Judicial Review of Administrative Discretion by Charles H. Koch Jr. William & Mary Law School.
Limitations of Administrative Discretion, Apurv Shah & Paras Parekh.
http://ssrn.com/abstract=1465519

Websites

Case laws

Kesavananda Bharati v. State of Kerala, (1973) 4 SCC 225.
MC Mehta v Union of India & Ors., (1987) 4 SCC 463. Liversidge v Anderson, [1942] AC 206
Nakhuda Ali v Jayratne, [1951] AC 66.
AK Gopalan v. The State of Madras, AIR 1950 SC 27.
AP Bankers & Pawn Brokers’ Association v Municipal Corporation of Hyderabad (2001) 3 SC 646.
Shri Ram Sugar Industries Ltd v. Andhra Pradesh, (1974) 1 SC 534.
Nagendra Rao & Co v. Andhra Pradesh, AIR 1994 SC 2663.

Questions

Whether there is any distinction between constitutional law and administrative law?
What is the reason behind the Growth of Administrative Law?
What is the scope of Administrative Discretion?

^[1] C.K Thakkar’s Administrative Law, Introduction, Historical growth and development, page 11.

^[2] Law and the Constitution (1915) 329.

^[3] Law and the Constitution (1959) 217; see also wade and Phillips, Constitutional law (1971) 583.

^[4] Administrative Law Text (1959) 1.

^[5] The Constitution of India, 1950.

^[6] Kesavananda Bharti v. State of Kerala, (1973) 4 SCC 225.

^[7] Quoted by Chakravarti, Administrative Law (1970) 166.

^[8] Available at http://www.lawteacher.net/english-legal-system/resources/delegatedew-legislation.php

^[9] MC Mehta v Union of India & Ors., (1987) 4 SCC 463.

Sources of Administrative Law

Introduction

Definition and Meaning of Administrative law

Need and Justification for Administrative Discretion