Administrative Law of INDIA

Administrative law is that the law that governs the administrative actions. As per Ivor Jennings- the Administrative law is that the law concerning to administration. It determines the organization, powers and duties of administrative authorities. It includes law relating to the rule-making power of the administrative bodies, the quasi-judicial function of administrative agencies, legal liabilities of public authorities and power of the ordinary courts to supervise administrative authorities. It governs the manager and ensures that the executive treats the public fairly.

Administrative law could be a branch of public law. It deals with the relationship of individuals with the government. It determines the organization and power structure of administrative and quasi-judicial authorities to enforce the law. It’s primarily concerned with official actions and procedures and puts in place a control mechanism by which administrative agencies keep inside bounds.

However, administrative law is not a statute law. It’s a judge-made law which evolved over time.

 

The growth of Administrative Law- INDIA

The Mauryans and therefore the Guptas of Republic of India had a centralized administrative system. It had been with the coming of the British that Administrative law in India went through a few changes. Legislations regulating administrative actions were passed in British India.

After independence, Republic of India adopted to become a welfare state, that henceforward increased the state activities. As the activities and powers of the Government and administrative authorities inflated thus did the need for ‘Rule of Law’ and ‘Judicial Review of State actions’.

Henceforth, if rules, regulations and orders passed by the administrative authorities were found to be beyond the authorities legislative powers then such orders, rules and regulations were to be declared ultra-vires, unconstitutional, illegal and void.

 

Reasons for growth of Administrative law

The concept of a welfare state:

As the States modified their nature from laissez-faire to that of a welfare state, government activities increased and thus the need to manage the same. Thus, this branch of law developed.

 

The inadequacy of legislature:

The legislature has no time to legislate upon the day-to-day dynamic changing needs of the society. Even if it does, the lengthy and time-taking legislating procedure would render the rule so legislated of no use as the needs would have modified by the time the rule is enforced.

Thus, the chief is given the power to legislate and use its discretionary powers. Consequently, once powers are given there arises a need to regulate the same.

 

The inefficiency of Judiciary:

The judicial procedure of adjudicating matters is extremely  slow, costly advanced and formal. Moreover, there are so many cases already lined up that speedy disposal of suites isn’t possible. Hence, the requirement for tribunals arose.

 

Scope for the experiment:

As administrative law isn’t a codified law there is a scope of modifying it as per the requirement of the State machinery. Hence, it is more flexible. The rigid Governance procedures needn’t be followed again and again.

 

Administrative Law in India:

Administrative law in India attempts to manage administrative actions by controlling delegated legislation and subjecting administrative discretionary actions to judicial review. It conjointly provides for the constitution of tribunals and their composition

 

 

Delegated Legislation:

When the functions of Legislature is entrusted to organs aside from the legislature by the legislature itself, the legislation made up by such organ is named Delegated Legislation. Such a power is delegated to the executives/administrators to resolve the practical issues which they face on a day-to-day basis.

The apply of delegated legislation isn’t bad however the risk of abuse of power is incidental and hence safeguards are necessary.

There are three measures of dominant abuse of power through delegated legislation (as adopted in India)-

 

Parliamentary Control:

Parliamentary control is considered as a standard constitutional function as a result of  the Executive is responsible to the Parliament.

In the initial stage of parliamentary control, it is made sure that the law provides the extent of delegated power. The second stage of such control involves laying of the Bill before the Parliament.

 

There are three types of laying-

Simple laying:

In this, the rules and regulations made come into effect as soon as they are laid before the Parliament. It’s done to inform the Parliament, the consent of the Parliament with respect to its approval of the rules and regulations made aren’t needed.

 

Negative laying:

The rules get into force as presently they’re placed before the Parliament but cease to have effect if disapproved by the Parliament.

 

Affirmative laying:

The rules created shall no effect unless approved by both the Houses of the Parliament.

 

Procedural Control:

Procedural control means the procedures defined within the Parent Act (Act regulating the legislating power) have to be followed by the administrative authority while making the rules.

It involves pre-publication of the rules so that the people who would be affected by the proposed rules know it beforehand and may build representations if they are not satisfied.

After pre-publication is done and once all the involved bodies, persons and authorities have been consulted the rules are to be published in the official gazette so that the public is aware of the existence of the rules.

 

Judicial Control

The judiciary looks into the following aspects to determine the legal validity of the rules so made using the power so delegated-

1.If the administrative legislation is ultra-vires the Constitution.

2.If the administrative legislation is ultra-vires the Parent Act.

3.If the administrative legislation is arbitrary, unreasonable and discriminatory.

4.If the administrative legislation is malafide.

5.If the administrative legislation encroaches upon the rights of private citizens derived from the common law, in the absence of an express authority in the Parent Act.

6.If the administrative legislation is in conflict with another statute.

7.Power of the legislating authority to legislate the rule.

8.If the administrative legislation is vague.

 

Judicial Review

Judicial review deals with three aspects-

 

# Judicial review of legislative action.

# Judicial review of the judicial action.

# Judicial review of administrative action.

 

When it comes to administrative law judicial review of administrative action becomes a vital part of it.

An administrative authority must have discretionary powers to resolve real-time issues. However, the decisions taken by exercising these discretionary powers must be reasonable. Reasonableness is the ‘Rule of Law’s’ response to the challenge of discretion. It brings discretionary powers closer to ‘rule of law’ ideas of transparency, consistency and certainity. Through the method of judicial review- administrative action and discretion are checked and controlled.

Judicial review ensures the legality of the administrative action and keeps the administrative authority within its bounds. The Court inquires if the administrative authority acted according to the law. However, the Courts cannot and don’t substitute the opinion of the administrative authority with their own.

Courts, in a matter challenging administrative actions, hence look, if there was a failure within the exercise of the power of discretion, if there was an abuse of discretionary power, if there was any illegality and/or procedural impropriety.

 

administrative action

“Administrative action” means any action or decision made by an owner, employee or agent of a long term care facility or by a public agency that affects the services to residents.

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