Chanderprabhu Jain College of Higher Studies
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School of Law
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E-NOTES Class : BBA LL.B /B.A LL.B IV Semester Paper Code : LLB-208 Subject : Administrative Law Unit-1 EVOLUTION AND SCOPE OF ADMINISTRATIVE LAW
Nature, Scope and Development of Administrative Law
Administrative Law is the rules, orders and decisions of central and local government agencies established to perform a specific function. Administrative Law is that portion of law which determines the organization, powers and duties of administrative authorities.
Dicey:
Firstly, portion of a nation‟s legal system which determines the legal status and liabilities
of all State officials. Secondly, defines the rights and liabilities of private individuals in their dealings with public officials. Thirdly, specifies the procedure by which those rights and liabilities are enforced.
Jennings:
Administrative law is the law relating to the administrative law. It determines the organization, powers and duties of administrative authorities.
K.C.Davis:
Administrative Law is the law concerning the powers and procedures of administrative agencies including especially the law governing judicial review of administrative action.
Professor Wade:
Administrative Law is concerned with the operation and control of the powers of administrative authorities with emphasis on functions rather than on structure.
Professor Hart:
Administrative Law includes law that is made by as well as the law that controls the administrative authorities of a government.
Chanderprabhu Jain College of Higher Studies
&
School of Law
An ISO 9001:2015 Certified Quality Institute (Recognized by Govt. of NCT of Delhi, Affiliated to GGS Indraprastha University, Delhi) 2
Professor Griffith & Street:
Administrative Law is concerned with three questions:- 1. What sort of powers does the administration exercise? 2. What are the limits of those powers? 3. What are the ways in which the administration is kept within those limits? The main object of the study of administrative law is to unravel the way in which these administrative authorities could be kept within their limits so that the discretionary power may not be turned into arbitrary powers. Kennith Culp Davis divided Administrative Law in three parts:
The powers vested in administrative agencies.
The requirements imposed by law upon the exercise of those powers, and
Remedies available against unlawful administrative actions. Administrative Law is the study of multifarious powers of administrative authorities and their control. The nature of power exercisable by the administrative authorities can be studies under the following heads:
Legislative or Rule making
Judicial or Adjudicative
Purely Executive
Growth & Development of Administrative Law
Emphasis on public welfare activities of the State.
Industrialization and Urbanization in modern times.
Administrative interference in the public life and consequential apprehensions.
Scientific and technological developments and resultant problems.
Speedy and simpler modes of adjudication.
Chanderprabhu Jain College of Higher Studies
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School of Law
An ISO 9001:2015 Certified Quality Institute (Recognized by Govt. of NCT of Delhi, Affiliated to GGS Indraprastha University, Delhi) 3
Decentralization of economic resources and to ensure economic and social justice.
Rule of Law and Administrative Law
The originator of the concept of rule of law was Sir Edward Coke the Chief Justice in James I Reign. The concept of rule of law is of old origin. Greek philosophers such as Plato and Aristotle
discussed the concept of rule of law around 350 BC. Plato wrote „Where the law is subject to
some other authority and has none of its own, the collapse of the state, in my view, is not far off but if law is the master of the government and the government is its slave, then the situation is full of promise and men enjoy all the blessings that the gods shower on a state. Aristotle wrote law should govern and those who are in power should be servant of the laws.
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the derivation of the phrase Rule of Law is from the French phrase la Principe de legality which implies principle of legality. By this phrase it refers to a government based on principles of law and not of men. One of the basic principles of Constitution is rule of law and this concept is up to standard in both India and America Constitution. The doctrine of rule of law is the entire basis of Administrative law. As discussed by Aristotle, the concept of rule of law is grounded in the ideas of justice, fairness and inclusiveness. Today, an intricate chain of fundamental ideas is incorporated in rule of law which further encompasses equality before law, equal treatment before the law for government, independence of judiciary, consistency, transparency and accountability in administrative law. It means that no man is above law and also that every person is subject to the jurisdiction of ordinary courts of law irrespective of their position and rank. The term rule of law is originated from England and India has taken this concept. The concept of rule of law further requires that no person should be subjected to harsh or arbitrary treatment. The word law in rule of law means that whether he is a man or a society, he must not be governed by a man or ruler but by law. In other words, as per Article 13 of the Indian Constitution rule of law means law of land. According to
Black‟s Law Dictionary:
Rule of Law means legal principles of day to day application, approved by the governing bodies or authorities and expressed in the form of logical proposition. According to
Oxford Advance Learner‟s Dictionary:
Rule of Law means the situation in which all the citizens as well as the state are ruled by the law.
Chanderprabhu Jain College of Higher Studies
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School of Law
An ISO 9001:2015 Certified Quality Institute (Recognized by Govt. of NCT of Delhi, Affiliated to GGS Indraprastha University, Delhi) 4
According to Professor A.V Dicey, for achieving supremacy of law three principles of postulates must be followed which are as follows:
Supremacy of law
- As per the first postulate, rule of law refers to the lacking of arbitrariness or wide discretionary power. In order to understand it simply, every man should be governed by law. According to Dicey, English men were ruled by the law and the law alone and also where there is room for arbitrariness and that in a republic no less than under a monarchy discretionary authority on the part of the Government must mean insecurity for legal freedom on the part of its subjects. There must be absence of wide discretionary powers on the rulers so that they cannot make their own laws but must be governed according to the established laws.
Equality before law
- According to the second principle of Dicey, equality before law and equal subjection of all classes to the ordinary law of land to be administered by the ordinary law courts and this principle emphasizes everyone which included government as well irrespective of their position or rank. But such element is going through the phase of criticisms and is misguided. As stated by Dicey, there must be equality before law or equal subjection of all classes to the ordinary law of land. French legal system of Droit Administrative was also criticized by him as there were separate tribunals for deciding the cases of state officials and citizens separately.
Predominance of Legal Spirit
- According to the third principle of Dicey, general principles of the Indian Constitution are the result of the decisions of the Indian judiciary which determine to file rights of private persons in particular cases. According to him, citizens are being guaranteed the certain rights such as right to personal liberty and freedom from arrest by many constitutions of the states (countries). Only when such rights are properly enforceable in the courts of law, those rights can be made available to the citizens. Rule of law as established by Dicey requires that every action of the administration must be backed and done in accordance with law. In modern age, the concept of rule of law oppose the practice of conferring discretionary powers upon the government and also ensures that every man is bound by the ordinary laws of the land as well as signifies no deprivation of his rights and liberties by an administrative action.
ADM Jabalpur v. Shivkant Shukla (1976) 2 SCC 521
This case is also known as Habeas Corpus case. It is one of the most important case when comes to rule of law. The question that was raised before the court was that whether there was any rule of law in India apart from Article 21 of the Indian Constitution. It was in context relating to the proclamation of emergency where the enforcement of Articles 14, 21 and 22 were suspended.