INTRODUCTION
Administrative law is a branch of public law which is known to possess anti-authoritarian nature. The concept of reasonableness, fairness and justice is of utmost importance to the subject of administrative law. Administrative law is a tool which states use to achieve rule of law in global administrative space. As a result, the application of administrative law is not merely restricted to legal parameters but as also flourished itself into governmental spheres of modern day civilizations. Administrative law has been recognized as a separate branch of legal studies from around the mid of 20th century in most countries including India. The novel nature of this law is also a reason for its extensive research and interest in modern legal institutions.
Administrative law covers the administration of:
- Executive Processes
- Legislative Processes
- Judicial Processes
- Public functions exercised by non-state entities
NATURE AND SCOPE
To understand the nature and scope of a vast legal subject as that of administrative law, we must enumerate its key tenets to paint a clear picture on the subject as follows:
1. Administrative law is not “law” in traditional sense of the term, instead it refers to customs, precedents, administrative directions, circulars, notices, resolutions, etc. It also greatly values the principles of natural justice. In India, it is also commonly known as “judge made law” as it greatly supplements judicial law making in the country.
2. Administrative law is also observed to deal with administrative and quasi-administrative powers of organizations. The quasi-administrative bodies include firms, autonomous agencies, corporations, individuals and civil societies.
3. Administrative law greatly adheres to the principles of natural justice, reasonableness, fairness, etc. in addition to pre-existing legal principles.
4. Administrative law deals with:
Administrative Action
Ministerial Action
Quasi-legislative Action
Quasi-judicial Action
5. Administrative law also concerns itself with the procedure used for official actions. It strives for the procedure to be just, fair, reasonable and transparent. With regards to the procedure for the said actions, such procedures may either be provided in the main statute or a supplemental statute to the main statute.
6. Administrative law also deals with “Control Mechanisms” or “Review Processes” of administrative agencies. Some control mechanisms commonly used are as follows:
Writ Jurisdictions like Habeas Corpus, Mandamus, Certiorari, Prohibition ad Quo Warranto.
Agencies like Ombudsman and certain welfare commissions for women and children and for protection of human rights.
Independent and free media, easy access to justice and “Right to know” also helps ensuring smooth application of administrative principles in executive, legislative and judicial actions.
DROIT ADMINISTRATIF
The concept of Droit Administratif is essentially a French concept which can be traced back to the Revolution of 1789 which mainly saw the tussle for power between Traditionalist Bonapartists and Reformist Parliaments. The Traditionalist Bonapartists supported exercise of executive power in judicial matters while the Reformist Parliaments supported jurisdiction of courts, thereby supporting the two integral doctrines of Administrative Law- ‘Separation of Powers’ and ‘Rule
of Law’. The 16-24 August Law was a result of the Revolution of 1789 which curtailed the powers of the executive upon application of the doctrine of ‘Separation of Powers’. Thus, Conceil du Roi was abolished which greatly limited the King’s powers. Conseil d’Etat was an institution established by Napoleon whose was to resolve matters of administration and reforms, but this institution later on stated exercising its power into judicial matters. However, it is to be mentioned that the actual aim of this institution was to advise the minister on judicial matters, it had no power to pronounce judgements as the minister was the judge. However, in 1872 tis institution was given the power to pronounce judgements in matters of administration. Droit Civil does not concern itself with rules made by the parliament but it concerns itself with rules developed by judges in Courts under Droit Administratif. Droit Administratif includes 3 sets of rules, namely:
(1) Rules dealing with administrative authorities and officials
(2) Rules dealing with operation of public services to meet the needs of citizens
(3) Rules dealing with administrative adjudication.
In cases where there is a conflict between ordinary courts and administrative courts, the matter is dealt with in Tribunal des Conflicts. The Code of Droit Administratif is different than that of Code Civil. The Conseil d’Etat has evolved and as itself interpreted the doctrines of administrative law. At times certain doctrines of Conseil d’Etat has been adopted by the Parliament and incorporated in the Civil Code. The Droit Administratif in France has said to have contributed greatly to administrative law despite its many criticisms.
ADMINISTRATIVE LAW IN INDIAN CONTEXT
In India, the earliest example of application of administrative law can be traced back to the Upanishads where it propounds the idea that the law is above the king and the king has to exercise Administrative actions for in order to properly apply divine laws.
After the independence of India, the concept of welfare state became an important part of the Indian Constitution, the proof of which can be observed in the preamble to the Constitution itself as the preamble states that the Constitution aims to establish a sovereign, socialist, secular, democratic republic; and to secure its citizens social, economic and political justice; liberty of
thought, expression, belief, faith, worship; equality of status and opportunity; and to promote fraternity and to assure dignity of its citizens and unity of the nation.
Presently, it is to be noted that the concept of administrative law is not a well-defined legal concept. Also, in cases where there appears to be a conflict between positive law and certain principles of administrative law, the courts will not invalidate the positive law. The courts may however interpret and mold the positive law to compliment the principles of administrative law.
It should also be noted that a welfare state cannot be achieved without a proper administrative process in place. So, the Constitution itself provides for a number of articles to facilitate a smooth administrative system in the country, out of which a few examples are briefly discussed below:
(1) Article 39A and Article 41 makes it obligatory for the State to provide for equality of justice and free legal aid.
(2) Article 43 and Article 43A advises the state to secure work for the workers, living wages and a decent standard of living.
(3) Article 47 provides for the state to raise and safeguard the level of nutrition, standard of living and public health.
(4) Article 232A and Article 232B provides for the establishment of special tribunals for the purpose of administrative justice.
(5) Article 32 and Article 226 provides power to the Supreme Court and High Courts to issue writs of habeas corpus, certiorari, quo warranto, prohibition, mandamus in order to safeguard the principles of natural justice and rule of law.
(6) Article 311 is used to protect government officials from arbitrary actions of the government in cases of termination, dismissal and reduction in rank.
(7) The Constitution also contains express provisions to establish various administrative agencies that are responsible for their fields; for example:
Article 263 provides for the creation of an Inter-State Council
Article 280 provides for a Finance Commission
Article 262 provides for Inter-State Water Dispute Authority
Article 315 provides for Public Service Commission of India
Article 324 provides for an Election Commission
Following are some landmark cases of India which may help analyze the role of administrative law principles in India:
ADM Jabalpur v. Shivkant Shukla (AIR 1976 SC 1207):
This is also popularly known as Habeas Corpus Case. In this case it was contended that courts are under an obligation to function under principles of rule of law and that rule of law is a central and basic feature of the Constitution. Eventhough this contention was not sustained, the courts did agree that rule of law is atleast a legal concept, if not a constitutional concept.
Kesavananda Bharti v. State of Kerala (AIR 1973 SC 1461)
In this case, the Court held that the rule of law is a part of the basic structure of the constitution and cannot be amended by the parliament.
Ram Jawaya Kapur v. State of Punjab (AIR 1955 SC 549)
In this case, the Court held that the doctrine of separation of powers is not applied with absolute rigidity in India but that different parts of the government have differentiated their functions with each other.
CONCLUSION
It is often said that “power corrupts and absolute power corrupts absolutely”. Therefore, there is a need to constantly adjust the relationship between the government and citizens so that a proper balance be made between public interest and private interest. So, administrative organs cannot be conferred with exorbitant powers without placing effective control mechanism over them so that officials do not abuse their powers. Administrative law takes it upon itself to ensure governmental functions are exercised according to law. Therefore, the objective of Administrative law is to ensure control of the administrative power and protection of individual against the abuse of that power. In modern democracies like India, Administrative Law is of great importance as it assures its citizens equality, justice, liberty and constitutional morality and the promise of a welfare state
