The contour of administartive law
BA LLB, Law Student, VIPS, GGSIPU, Delhi, India
In recent years, the concept of the administrative has been undergoing a radical change. The present trend of judicial opinion is to restrict the doctrine of immunity of prerogative powers from judicial review where purely governmental functions are directly attributable to the royal prerogative, such as whether a treaty should be concluded or the armed forces deployed in a particular manner or Parliament dissolved on one day rather another, etc. The shift in approach to judicial interpretation that has taken place during the last few years is attributable in large part to the efforts of Lord Denning in Laker Airways' case. The attempt was to project the principles laid down in Padfield's case into the exercise of discretionary powers by the executive derived from the prerogative, and to equate prerogative and statutory powers for purposes of judicial review, subject to just exceptions. Thus, the present trend of judicial opinion is to restrict the doctrine of immunity from judicial review to those class of cases which relate to deployment of troops, entering into international treaties, etc. The distinctive features of some of these recent cases signify the willingness of the Courts to assert their power to scrutinize the factual bases upon which discretionary powers have been exercised. The decision of the House of Lords in Padfield's case is an important landmark in the current era of judicial activism in this area of administrative law . The administrative law of India is heavily based on English law. This paper makes a serious attempt in understanding the notions of administrative law.
Keywords: rule of law, delegated legislation, natural justice
Ivor Jennings has opined that Administrative law is the law relating to administration. It determines the organization, power & administrative duties of the administrative authorities. The present paper is aimed at understanding the basic concepts associated with administrative law which inter alia includes red light theory, green light theory, delegated legislation, rule of law, principles of natural justice and etc. It has to be kept in mind that red light theory operates against absolutism. Red light theory seeks to keep governmental agencies within the bounds of law through judicial control. The green light theory, on the hand, stresses upon political control. The mix of judicial and political control paves the way for amber light theory. Our administrative law like that of England is squarely founded on the doctrine of ultra vires i. e. jurisdiction. One of the best features of our administrative law is the range and the effectiveness of the remedies provided in Article 226 of the Constitution. In our modern highly organised society were administrative acts and decisions intimately affect the well-being and happiness of so many citizens, particularly those who are poor, life would be intolerable if there were no means of ensuring that interference by administrative action with the liberty or property of the individual did not exceed that which had been authorised by a representative legislature and also by the Constitution and that the administrative decisions so authorised were fairly made .
According to Sir John Salmond, “Subordinate legislation is that which proceeds from any authority other than the sovereign power and is, therefore, dependent for its continued existence and validity on some superior or supreme authority.” Subordinate legislation is the legislation made by an authority subordinate to the legislature. Such legislation is to be made within the framework of the Powers so delegated by the legislature and is, therefore, known as delegated or subordinate legislation. In Schechter Poultry Corp. v. United States , it was observed by Justice Cardozo that delegate legislation is a necessary evil. Commenting on the significance of delegated legislation it was observed by Hon’ble SC in Arvinder Singh v. State of Punjab , that delegation of some part of legislative power becomes a compulsive necessity for viability. If the 500-odd parliamentarians are to focus on every minuscule of legislative detail leaving nothing to subordinate agencies the annual output may be both unsatisfactory and negligible. The Lawmaking is not a turnkey project, ready-made in all detail and once this situation is grasped the dynamics of delegation easily follow. The principle was reaffirmed in Devi Das Gopal Krishnan v. State of Punjab , to the effect that in view of the multifarious activities of a welfare State, it cannot presumably work out all the details to suit the varying aspects of a complex situation. It must necessarily delegate the working out of details to the executive or any other agency.
Reasons for delegated legislation is as under
Types of Delegated Legislation
Henry Eight Clause
The executive can be delegated with the function to remove difficulties in the provisions of statute but the same cannot amount to modifying the very purport of the statute. Such a modification is termed as Henry Eight Clause & is bad in law.
It arises when the executive is delegated with the function of bringing the act into operation on the happening of certain conditions. In Sardar Inder Singh v. State of Rajasthan , the Rajasthan Tenants Protection Ordinance was promulgated for two years and the ordinance empowered the Governor to extend the life of ordinance if state of affairs mandates the protection of the interest of tenants. It was held to be a valid case of conditional legislation. In Hamdard Dawakhana v. Union of India , the difference between conditional & delegated legislation was pointed. It was held that in delegated legislation the delegate completes the legislation by supplying details within the limits prescribed by the statute and in the case of conditional legislation the power of legislation is exercised by the legislature conditionally leaving to the discretion of an external authority the time and manner of carrying its legislation into effect as also the determination of the area to which it is to extend.
Delegatus Non Potest Delegare
The maxim is not a rule of law but a rule of construction. The principle which follows from Central Talkies Ltd. v. Dwarka Prasad , is that sub delegation of power though is generally impermissible but the same may be allowed if it is expressly conferred by the statute or can be inferred from the necessary implication.
Controls on Delegated Legislation
Amongst the mechanisms evolved by the legislature to exercise control over the delegated legislation, the most important is the constitution of the Committee on Subordinate Legislation. It is this Committee of the legislature which examines if the powers conferred by the Constitution or delegated under an Act passed by the legislature have been duly exercised and are within the conferment or delegation, and not beyond. It has to see that delegated legislation does not transgress into areas not prescribed for it, and also that it does not venture to intrude into the sphere which is the sole concern of the legislature itself. Rajya Sabha Committee on Subordinate Legislation was first constituted in 1964. The Committee consists of fifteen members including the Chairman who is nominated by the Chairman, Rajya Sabha. The Committee holds office until a new Committee is nominated. Normally, the Committee is re-constituted every year.
Prinicples of Natural Justice
Natural Justice is a branch of Public law. It can broadly be classified into three basic principles
Rule against bias owes its origin in three postulates
The implication is that judge shall be independent and must inspire confidence. There are four variants of bias namely
Dimes v. Grand Junction Canal , is locus classicus on this point. In Dimes case the order passed by a judge who was a shareholder in the company of one of the parties to the dispute was set aside on the ground that judge may have been laboring under pecuniary bias. In Manak Lal v. Prem Chand , it was held by Hon’ble Supreme Court that pecuniary interest, howsoever small it may be, would disqualify a person from acting as a judge. In J. Mohapatra v. State of Orissa , it was held that even the possibility of bias is fatal.
A.K. Kraipak v. Union of India , holds the field on this point. In Kraipak case, a a person who was the member of selection committee for IFS was also the candidate in said exam. It was held to be a case of personal bias. In State of UP v. Mohd. Nooh , a departmental enquiry was being conducted. When the witness turned hostile, the judge deposed as witness & thereafter passed an order upon his own deposition. It was held that that such a personal biasness constituted gross violation of PNJ.
c. Bias as to subject matter
In Gullapalli Nageswara Rao v. A.P. SRTC , the validity of nationalization of motor transport was assailed. The objections were heard by the officials who were one of the parties to the dispute and hence it was held to be within the meaning of bias as to subject matter.
It encompasses following to be mandatory
It has been beautifully observed by Hon’ble SC in Sec. & Curator Victoria Memorial v. Howrah Ganatantrik Nagrik Samity , that reason is the heartbeat of every conclusion. It introduces clarity in an order and without the same, it becomes lifeless. Reasons substitute subjectivity by objectivity. Absence of reasons renders the order indefensible/unsustainable particularly when the order is subject to further challenge before a higher forum. Every order must be supported by reasons. In M.P. Industries Ltd. V Union of India , it was held that administrative tribunals are duty bound to give reasons for their orders as their orders are capable of affecting rights of parties. In Shrilekha Vidyarthi v. State of UP , it was laid that non-assignment of reasons may arise on account of public policy.
Exceptions to PNJ
Rule of Law
The term ‘Rule of Law’ is derived from the French phrase la principe de legalite (the principle of legality) which refers to a Government based on principles of law and not of men. In this sense the concept of ‘Rule of Law’ is opposed to arbitrary powers. Sir Edward Coke is said to be the originator of this concept, when he said that the king must be under the God and Law and thus vindicated the supremacy of law over the pretentions of the executives.
A V Dicey later developed on this concept but his concept of the Rule of Law contemplated the absence of wide powers in the hands of Government officials. According to Prof Dicey, rule of law contains three principles or it has three meanings as stated below:
In Indira Nehru Gandhi v. Shri Raj Narain , the constitutional validity of clause 4 of Art 329A fell for consideration.
Clause (4) of Art 329A read as follows: (i) No law made by Parliament before the commencement of the Constitution (39th Amendment) Act, 1975 in so far as it relates to the election petitions and matters connected therewith shall apply or shall be deemed ever to have applied to or in relation to the election of any such person as is referred to in clause (1) to either House of Parliament; (ii) and such election shall not be deemed to be void or ever to have become void on any ground on which such election could be declared to be void or has before such commencement been declared to be void under any such law; (iii) and notwithstanding any order made by any court before such commencement declaring such election to be void, such election shall continue to be valid in all respects; (iv) and any such order and any finding on which such order is based shall be and shall be deemed always to have been void and of no effect.
While declaring that Clause 4 is unconstitutional it was held that Rule of law postulates that the decisions should be made by the application of known principles and rules and in general such decisions should be predictable and the citizen should know where he is. If a decision is taken without any principle or without any rule, it is not predictable and such decision is the antithesis of a decision taken in accordance with the rule of law. The effect of impugned clause (4) is to take away both the right and the remedy to challenge the election of the PM & thus offends rule of law.
Separation of Power
The doctrine of separation of powers has originated from Aristotle but was made popular by John Locke and Montesquieu. Indian Constitution, unlike Constitution of United States of America and Australia, does not have express provision of separation of powers. At this point reference may be made to Article 50.
In Ram Jawaya Kapur v. State of Punjab  it was held that the Indian Constitution has not indeed recognised the doctrine of separation of powers in its absolute rigidity but the functions of the different parts or branches of the Government have been sufficiently differentiated and consequently it can very well be said that our Constitution does not contemplate assumption, by one organ or part of the State, of functions that essentially belong to another.
In State of Tamil Nadu v. State of Kerala , the law was summarized as under
Central Administrative Tribunal
The Central Administrative Tribunal had been established under Article 323 - A of the Constitution for adjudication of disputes and complaints with respect to recruitment and conditions of service of persons appointed to public services and posts in connection with the affairs of the Union or other authorities under the control of the Government.
Q. Whether Central Administrative Tribunal can supplant the jurisdiction of High Court?
Overruling P. Sampath Kumar v. Union of India , it was laid down by Hon’ble Supreme Court in L. Chandra Kumar v. Union of India , that
It emerges that administrative law is not a strait jacket. It is a living organism. As such it is capable of growth, of expansion and of adaptation to new conditions. The administrative law is neither, on the one hand, a Gibraltor Rock, which wholly resists the ceaseless washing of time and circumstances, nor is it on the other hand, a sandy beach, which is slowly destroyed by erosion of the waves. It is rather to be likened to a floating dock which, while firmly attached to its moorings, and not therefore at the caprice of the waves, yet rises and falls with the time of time and circumstances. In nutshell administrative law is a multifariousness concept and has far-reaching horizons. Administrative Law, being a mode of social engineering, cannot be viewed in isolation. The vitality of law as a living organism is primarily dependent on the judge’s ability to interpret the same. We have to continuously remember that administrative law will become a teasing illusion if we forget to bring the notion of constitutional conscience into our service to the mankind. D.Y. Chandrachud, J. locus classicus in Gujarat Mazdoor Sabha v. State of Gujarat , must not be forgotten wherein his lordship beautifully observed that the phrase sentinel on the qui vive may have become weather-beaten in articles, seminars and now, in the profusion of webinars, amidst the changing times. Familiar as the phrase sounds, Judges must constantly remind themselves of its value through their tenures, if the call of the constitutional conscience is to retain meaning.