Administrative Law: Theories, Rule of Law and Delegated Legislation
Published on: 19 July, 2020
Administrative law is a new type of law which is mostly developed in the twentieth century. This law deals with the powers and functions of the administrative authorities. It is trying to keep a check on the discretionary powers of administrative authorities. It is judge-made law. It is not a codified law.
The core principle of Administrative law is to give better administration to the citizens so that the standard of living can be raised high.
Different Approaches to Administrative Law
English Approach
Dicey defined administrative law in his book Law of the Constitution, “Administrative law relates to that portion of a nation’s legal system which determines the legal status and liabilities of all State officials; defines the rights and liabilities of private individuals in their dealings with officials and specifies the procedure by which those rights and liabilities are enforced.”
Dicey defined administrative law in his book Law of the Constitution, “Administrative law relates to that portion of a nation’s legal system which determines the legal status and liabilities of all State officials; defines the rights and liabilities of private individuals in their dealings with officials and specifies the procedure by which those rights and liabilities are enforced.”
One of the major drawbacks of this definition given by dicey is that it is too narrow. This definition is only talking about public officials control and not talking about other parts of a State like Public corporations. This definition of Dicey is not recognizing administrative law as an independent branch of law. So in the English approach, it is always clubbed with the Constitutional Law. It is procedural as it is giving importance to the procedure adopted by the administrative agencies while exercising their powers.
American Approach
Professor Bernard Schwartz defined, “Administrative law is that branch of the law which controls the administrative operations of the government. It sets forth the powers which may be exercised by administrative agencies lays down the principles governing the exercise of those powers and provides legal remedies to those aggrieved by administrative action.”
Professor Bernard Schwartz defined, “Administrative law is that branch of the law which controls the administrative operations of the government. It sets forth the powers which may be exercised by administrative agencies lays down the principles governing the exercise of those powers and provides legal remedies to those aggrieved by administrative action.”
The American approach towards the administrative law distinguishes from the English approach as it recognizes Administrative law as the independent branch of law. The American approach is substantive as it giving importance to the duties and powers of administrative agencies.
Indian Approach
Dr M.P. Jain and Dr S.N. Jain defined, “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 the operation.”
Dr M.P. Jain and Dr S.N. Jain defined, “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 the operation.”
So the definition given by the M.P. Jain can be divided into 4 parts:
The first part says about the powers of the organs of administrative. These organs include every public and administrative organ.
The second part is fixing the limit on the powers of these authorities.
The third part is giving the procedure to be followed by these authorities while exercising their powers.
The fourth part is controlling administrative authorities through the judiciary. This includes extrajudicial control also like tribunals etc.
The first part says about the powers of the organs of administrative. These organs include every public and administrative organ.
The second part is fixing the limit on the powers of these authorities.
The third part is giving the procedure to be followed by these authorities while exercising their powers.
The fourth part is controlling administrative authorities through the judiciary. This includes extrajudicial control also like tribunals etc.
Administrative Law growth
The concept of administrative law was developed in France. It was popularly known as Droit administratif. The advanced development of this law was seen in the twentieth century. There are many factors which led to the growth of administrative law:
1. The State changed its rule from Laissez-faire to the welfare state. Now the State is getting many responsibilities as compared to the previous role of a State.
2. The courts were getting overburdened. There were many disputes in different sectors which needed a practical approach to solving these cases. This led to the formation of the Tribunals.
3. Delegation of powers became important for better administrative control.
4. Administrative law made the rules flexible unlike legislative rule making, where the task to change the rules needed legislature law.
5. There were many steps which can be easily taken by administrative authorities for the better administration like giving licenses, suspension of some license etc.
2. The courts were getting overburdened. There were many disputes in different sectors which needed a practical approach to solving these cases. This led to the formation of the Tribunals.
3. Delegation of powers became important for better administrative control.
4. Administrative law made the rules flexible unlike legislative rule making, where the task to change the rules needed legislature law.
5. There were many steps which can be easily taken by administrative authorities for the better administration like giving licenses, suspension of some license etc.
Theories of Administrative Law
We are seeing tremendous growth of administrative law. This led to 3 theories of administrative law for better administration:
1. Red Light Theory: This theory says that the main objective of the administrative law is to control the powers which are given to the government. This theory is based on the formula which says that power corrupts a human being and absolute power corrupts absolutely. So this theory uses judicial control to take care of the rights of private individuals.
2. Green Light Theory: This theory says that there is a need for collective effort to improve the well being of a community. This collective effort can be achieved by various ways like Decentralization of the powers, better consultation, the involvement of the community and contribution through various other ways.
3. Amber Light Theory: This is a mixture of Red light and Greenlight theory. We often see a mixture of above 2 theories in most of the countries as each of the above is having some good points in its favour.
Scope of Administrative Law
Administrative law is judge-made law. This means that it is not properly defined like Indian Penal Code, CrPC etc. Administrative law includes the below points:
- The powers of the Administrative authority.
- Delegated Legislation
- Measures for the prevention of abuse of power. These measures can either be legislative or judicial.
- Judicial, quasi-judicial and adjudicative functions of administrative bodies e.g. Tribunals
- Guarantee of natural justice while following the procedures of administrative bodies and tribunals.
Administrative law in India
Administrative law is having its root from the ancient system of Dharma. According to the principles of Dharma, the king and its ministers must follow the principle of natural justice like hearing both the parties while deciding the result of any case.
Later the administrative law saw no great growth under the British system. They usually focused on looting the wealth of India by the collection of tax and revenue. But after the Independence of India, our constitution decided to approach the welfare of India. So the concept of the welfare state was followed in India. Our Constitution makers gave various provisions in the Constitution due to which we can say that we are following the administrative law in the Country. Delegated legislation, judicial review of the decisions of tribunals is incorporated in our Constitution.
Later the administrative law saw no great growth under the British system. They usually focused on looting the wealth of India by the collection of tax and revenue. But after the Independence of India, our constitution decided to approach the welfare of India. So the concept of the welfare state was followed in India. Our Constitution makers gave various provisions in the Constitution due to which we can say that we are following the administrative law in the Country. Delegated legislation, judicial review of the decisions of tribunals is incorporated in our Constitution.
There is various administrative agency control mechanism like Inter-State Council, Finance Commission, Election Commission etc are given under our Constitution.
Also Read: Constitution of India: Articles, Schedules and Parts
Also Read: Constitution of India: Articles, Schedules and Parts
What is the difference between Constitutional Law and Administrative Law?
They both are interrelated with each other. Constitutional law is the Genus and Administrative law is the Species. Constitutional law deals with the powers of the various organs of the State. Administrative law deals with the powers of the administrative authorities and it provides a way to keep them under check.
Hood Phillips in his book has said that the Constitutional law deals with the organization and functions of government at rest and administrative law deals with the organization and those functions under motion.
Hood Phillips in his book has said that the Constitutional law deals with the organization and functions of government at rest and administrative law deals with the organization and those functions under motion.
Administrative Law and the Rule of Law
This is the first most important principle of Administrative Law. Rule of law means the absence of arbitrary power on the part of the Government. It also means equality before the law for all. The word Rule of Law is derived from the French word la Principe de legalite (the principle of legality). This means that the government is based on law and not on the view of an individual man.
The Rule of law concept was developed by A.V. Dicey. According to Dicey, Rule of law means:
1. Supremacy of Law
According to Dicey, the rule of law means the absolute supremacy of law. This is against the concept of arbitrary power. This also means that no one should be punished except for the breach of law. So the supremacy of law means that the government cannot act according to its whims and fancies but will only work according to the law.
2. Equality before Law
This means that all are equal in the eyes of the law. It doesn’t matter if you are a Prime Minister or a common citizen. Everyone will be treated in the same court so that equality before the law can be maintained. This concept stops discrimination based on race, gender, religion etc.
3. The predominance of Legal Spirit
This is the third principle by Dicey. Dicey says that the various rights like Right to Equality, Right to Freedom etc are not given by the Constitution. These rights are given by nature. They are written in the Constitution to make them enforceable through the courts. There is no need of giving rights if they are not made enforceable by the Court.
1. Supremacy of Law
According to Dicey, the rule of law means the absolute supremacy of law. This is against the concept of arbitrary power. This also means that no one should be punished except for the breach of law. So the supremacy of law means that the government cannot act according to its whims and fancies but will only work according to the law.
2. Equality before Law
This means that all are equal in the eyes of the law. It doesn’t matter if you are a Prime Minister or a common citizen. Everyone will be treated in the same court so that equality before the law can be maintained. This concept stops discrimination based on race, gender, religion etc.
3. The predominance of Legal Spirit
This is the third principle by Dicey. Dicey says that the various rights like Right to Equality, Right to Freedom etc are not given by the Constitution. These rights are given by nature. They are written in the Constitution to make them enforceable through the courts. There is no need of giving rights if they are not made enforceable by the Court.
Criticism of the Dicey’s Concept of Rule of Law
The concept of Rule of Law by the Dicey is an amazing concept which has helped in curbing the discretionary power of the governments. This leads to a reduction in the arbitrariness in the decision of various governments. Then also there are various criticisms of the Dicey’s Rule of Law concept:
1. Dicey was the big fan of individual liberty and he wanted to curb the discretionary power of the authority. But it is also important to understand that it is not possible to completely negate the concept of discretionary power. We can take the example of the Supreme Court which is the final authority of judgment. So it is not against the rule of law. As we cannot completely get rid of discretionary powers.
2. Dicey created this concept when there was no concept of the welfare state. The State was a laissez-faire state. But today times have changed now the States are made welfare state which works for the development of its citizens. So it is important to give some power to the administration.
3. While publishing his book in 1885, he ignored the discretionary powers of the King. He followed a maxim which says that the king can do no wrong.
2. Dicey created this concept when there was no concept of the welfare state. The State was a laissez-faire state. But today times have changed now the States are made welfare state which works for the development of its citizens. So it is important to give some power to the administration.
3. While publishing his book in 1885, he ignored the discretionary powers of the King. He followed a maxim which says that the king can do no wrong.
Rule of Law in India
The concept of rule of law existed in our Country since ancient times. Every king was supposed to follow the rule of Dharma as given under the Dharmashastras. This rule of Dharma followed the natural law of Justice like not giving decision by hearing only one party, no bias while deciding a case etc.
Mughals too followed the concept of Supremacy of Law but when Britishers invaded India, the concept of rule of law as given by the Dicey wasn’t extended to this country. This concept of rule of Law was used while making the Indian Constitution. The Constitution is made the Supreme Law of the Land.
The Constitution is giving various rights to the citizens of this country. In the Preamble and the Fundamental Rights, we are given the right to equality, right to Freedom etc. These fundamental rights are made enforceable by the law. Anybody can go to court against the government. Governments are chosen based on Universal adult franchise. There is a concept of Independence of Judiciary.
The Constitution is giving various rights to the citizens of this country. In the Preamble and the Fundamental Rights, we are given the right to equality, right to Freedom etc. These fundamental rights are made enforceable by the law. Anybody can go to court against the government. Governments are chosen based on Universal adult franchise. There is a concept of Independence of Judiciary.
Administrative Law and Separation of Power
Separation of power is a very important concept in administrative law. It means dividing the powers of the Government into 3 parts:
- Legislature: They make the law
- Executive: They implement the law
- Judiciary: They punish the lawbreakers.
Nowadays Media is often popularly called as the fourth pillar of Democracy.
The above 3 branches keep a check on themselves. So in this way, they cannot exercise too much arbitrary power. In India, we have a parliamentary form of government. So we don’t see too much rigid separation of power between executive and Legislature.
The above 3 branches keep a check on themselves. So in this way, they cannot exercise too much arbitrary power. In India, we have a parliamentary form of government. So we don’t see too much rigid separation of power between executive and Legislature.
There are various articles in our Constitution which prove that our country is following the concept of separation of power:
Article 50: Separation of Judiciary from Executive
Article 53(1): Exercise of power is vested in the President and is directly or indirectly exercised by him.
Article 245: Power of lawmaking shall be given to the Parliament.
Article 124: Power the President to appoint and remove the Judges of Supreme Court and High Court.
Article 50: Separation of Judiciary from Executive
Article 53(1): Exercise of power is vested in the President and is directly or indirectly exercised by him.
Article 245: Power of lawmaking shall be given to the Parliament.
Article 124: Power the President to appoint and remove the Judges of Supreme Court and High Court.
So what we see in the Indian Constitution is that the doctrine of Separation of Power is not too rigid. One organ of the government checks on the other organ. So we can say that Administrative law and Doctrine of Separation of Power helps in keeping the check on the concentration of power in one hand.
Administrative Law and Delegated Legislation
Delegated Legislation is a law made by a body other than the legislature but with their consent. As we see in the modern-day scenario that the legislature can't create every law. So the concept of Delegated Legislation was propounded. There is limited power given under Delegated Legislation.
One of the prime examples of Delegated Legislation is seen in the Advocates Act of 1961. This act is giving the power to the Bar Council to make rules related to Professional ethics of Law as a Profession.
Reasons for the growth of Delegated Legislation are:
1. The limited-time of Parliament: It is often seen that Parliament is unable to make laws on every subject is affecting the nation as a whole. So it is important to use Delegated Legislation which can save some important time of the Parliament.
2. Technical Subjects: There are various fields like Space exploration, Company law etc. These fields need an expert in those subjects to create laws on it. So it is important to delegate the power in circumstances like this.
3. Sudden unforeseen situation: It is nearly impossible for the Parliament to make amendments in the law too frequently. There are various situations which arise while implementing the law. So in those circumstances, it becomes important to delegate.
Reasons for the growth of Delegated Legislation are:
1. The limited-time of Parliament: It is often seen that Parliament is unable to make laws on every subject is affecting the nation as a whole. So it is important to use Delegated Legislation which can save some important time of the Parliament.
2. Technical Subjects: There are various fields like Space exploration, Company law etc. These fields need an expert in those subjects to create laws on it. So it is important to delegate the power in circumstances like this.
3. Sudden unforeseen situation: It is nearly impossible for the Parliament to make amendments in the law too frequently. There are various situations which arise while implementing the law. So in those circumstances, it becomes important to delegate.
What are the different types of Delegated Legislation?
There are various types of Delegated legislation. Some of them are given below:
1. Title Based Classification: There are various things included under this head like Rules, Regulation, orders, bye-laws and schemes.
2. Purpose based Classification: Under this head, the power is delegated for a specific purpose. Some of the examples under this head are enabling act, Extension act, Suspending act etc.
3. Discretion based Classification: Under this head, it depends on the discretion of the authority. Using this discretion Subordinate or Conditional Legislation can be made.
So this delegated legislation is a handy tool in the hands of the government for effective administration. This delegated legislation can always be checked by judicial review or on the grounds of Ultra vires.
1. Title Based Classification: There are various things included under this head like Rules, Regulation, orders, bye-laws and schemes.
2. Purpose based Classification: Under this head, the power is delegated for a specific purpose. Some of the examples under this head are enabling act, Extension act, Suspending act etc.
3. Discretion based Classification: Under this head, it depends on the discretion of the authority. Using this discretion Subordinate or Conditional Legislation can be made.
So this delegated legislation is a handy tool in the hands of the government for effective administration. This delegated legislation can always be checked by judicial review or on the grounds of Ultra vires.
Conclusion: Administrative law
Administrative law is very important today for the better administration of a country. There are various parts of administrative law which have controlled the extra powers of the government so that they don’t exercise unlimited control on their citizens. On the same time, we also see that there are various times where discretion is important as the case of the Supreme Court of India.
