Administrative Law of INDIA -part 2

Right to Information Act, 2005

The Act provides for the right to information of citizens to achieve access to information beneath the control of public authorities. The Act promotes transparency and accountability of each public authority.

The Act is essential because it keeps the citizenry informed and holds the Government and its agencies accountable to the ruled.

The Rights of information Bill was introduced in the LOK SHAVA in December, 2004.It was passed by the both houses of parliament with major amendments in May, 2005. The assent of the President was received on June 15 and the ACT was notified in the Gazette on June, 21. The law will become operational by mild –October, 2005.

This law was passed by Parliament to enable citizens to exercise their Fundamental rights to information held by public authorities all over country (except Jammu and Kashmir). The RTI ACT aims to bring about transparency in the functioning of public authorities, contain corruption and hold Governments and their instrumentalities accountable to people. It creates a process for providing information to the people. The RTI ACT places a duty on officers to provide information to individuals both pro-activity and upon request. It provides for a two-tier appeals mechanism to deal with complaints of unreasonable denial of information by public authorities. This law will have an overriding effects –THE OFFICIAL ACT-1923 and all other laws and orders passed by Governments that restricts information flow to people.

 

Nature, scope and development of administrative law

As one begins to study the specifics of a particular branch of law it becomes important to know why and how the said branch of law came about.

Administrative law is a judge-made law which evolved over time. It is not a codified law. The need for it arose with the increase in administrative actions and its discretionary powers.

 

Rule of law and administrative law

The concept of ‘rule of law’ is that the State should be governed by principles of law and not of men. Administrative laws ensures that ‘rule of law’ prevails despite the presence of discretionary powers vested in the administrators. Administrative law developed to restrict the arbitrary exercise of powers by subordinating it to well-defined law.

 

Separation of Powers and its relevance

‘Separation of power’ is one of the basics on which the State machinery works. However, with the increase in administrative actions/powers, it is seen that the doctrine cannot be practised with rigidity. Every organ of the State is dependent on the other for smooth functioning, thus, the doctrine of separation of power cannot be exercised by placing the organs of the State in watertight compartments. There has to be a flexible approach while ensuring that no organ encroaches upon the functions of another.

 

Principles of Natural Justice

Administrative law requires that the administrative adjudicatory authority adjudicates matters applying the principles of natural justice, which are namely-

Rule against bias: That no person should be a judge in one’s own case and that justice should not only be done but seen to be done.

Audi Alteram Partem: That every person has the right to be heard before a matter is adjudicated in his favour/against him.

Speaking order (Reasoned decisions)– That the adjudicating authority must provide the reason behind its decision. This is a newly evolved principle which aims at curbing arbitrariness on part of the adjudicating authority.

 

Judicial Control of Administrative action:

Judicial review of administrative action.

The judiciary keeps a check on the other organs of the State through judicial review. The grounds on which this power is exercised on the administrative authority are-

 

# Abuse of discretion,

# Failure to exercise discretion,

# Illegality, irrationality and procedural impropriety.

 

Evolution of the concept of Ombudsman

The concept of Ombudsman evolved to keep a check on the administrative action. An ombudsman is an independent officer of the Legislature who supervises the administration and deals with complaints against maladministration by the administrative authority. It is a check on the administrative bodies by the Legislature.

 

Conclusion

Administrative law is the law governing the Executive, to regulate its functioning and protect the common citizenry from any abuse of power exercised by the Executive or any of its instrumentalities. It is a new branch of law which has evolved with time and shall continue to evolve as per the changing needs of the society. The aim of administrative law is not to take away the discretionary powers of the Executive but to bring them in consonance with the ‘Rule of law’.

 

Difference between Administrative law and Constitutional law

There are significant differences between Administrative law and Constitutional law:

A Constitution is the supreme law of the land. No law is above the constitution and hence must satisfy its provisions and not be in its violation. Administrative law hence is subordinate to constitutional law. In other words, while Constitution is the genus, administrative law is a species.

Constitution deals with the structure of the State and its various organs. Administrative law, on the other hand, deals only with the administration.

While Constitution touches all branches of law and deals with general principles relating to organisation and powers of the various organs of the State; administrative law deals only with the powers and functions of the administrative authorities.

Simply speaking the administrative authorities should first follow the Constitution and then work as per the administrative law.

 

The relationship between Constitutional law and Administrative law

As every law of the State must satisfy the Constitutional benchmark, it is essential to know the relationship between the Constitutional law and the Administrative law of the State. Constitutional law is the genus and administrative law its species, hence the judge-made law must comply with the constitutional provisions.

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