Basics of Administrative Law

What is administrative law?

Administrative Law in the most simplest of terms is the law governing the working of administrative agencies of the government. There can be various sources of administrative law viz. Constitution of India, Acts and Statutes, Ordinances/Notifications/Circulars and Judicial pronouncements.


Features of Administrative Law (AL)

• A separate set of laws for State and State functions.
• The scope of AL is same as the scope of Public Administration.
• Comprises of both laws of internal and external administration.
• The  French body of administrative law was called as Droit Administratif and it was referred to as "Continental nuisance" by the British where the Rule of Law was prevalent.

Features of Droit Administratif (France)

• A separate code of law when State is party to the case.
• Favours State Policy
• Separate Courts for civil servants. (Like we have CAT)

What is Rule of Law?

As per this principle, no one is above law. And it is the law that should govern the nation and not the arbitrary decision of the government authorities. The most close manifestation can be seen in the Art. 14 of Indian Constitution.

Features of Dicey's Rule of Law

• Was largely based on traditions
• endorsed the following of Procedure established by law.
• Absence of discretion.
• It is SUBSTANTIVE whereas AL is PROCEDURAL. Both are required.
• Criticism: Privileges to Crown; Ignored delegated legislation and tribunals; elitist model.

Now, so far we have learnt that the rise of Administrative Law challenged the "Rule of Law" in some ways especially the way it developed in France and Britain. But we must remember that both are required for smooth functioning of the government. Now lets focus on two important aspects of AL: Delegated Legislation and Administrative Tribunals.

What is Delegated Legislation?

Delegated Legislation (DL) is the law made by the executive authorities under the powers given by the legislative authority through a primary legislation. DL is also called as subordinate legislation or  secondary legislation or subsidiary legislation.

For example, the Customs Act 1962 is the primary legislation to deal with the affairs with customs. After that, under section 156 and section 157, the central govt and CBEC respectively were given power to make rules and regulations. These rule and regulations are the "DELEGATED LEGISLATION".

Rationale for Delegated Legislation

• Huge Volume of Laws.
• Complexity in the present times has increased.
• Technical nature of legislations today.
• Flexibility that is required.
• To encourage public participation.
• Paucity of time with the legislatures.

Negatives of Delegated Legislation

• Rise of neo-despotism (Explained later in this article).
• Chaotic Legal System. As the rules might divulge if go unchecked.
• Parochial nature of DL as uniformity cannot be ensured with different agencies.

Safeguards against Arbitrary use of DL

• Parliamentary Safeguards: Debates and discussions; System of Laying.
• Procedural Safeguards: Drafting; ante-natal publicity; consultation; post-natal publicity.
• Judicial Safeguards: Judicial review (Art 13)

What are Administrative Tribunals? 

Administrative Tribunals are bodies outside the hierarchy of the courts which have been provided with adjudicating(judicial) powers by the authority of law. 

Why are Administrative Tribunals Required when we already have courts?

• To resolve certain specific grievances of a private citizen with the some govt. department.
• To deal with cases which require expertise of a particular subject matter.
• To fast track certain kinds of cases.
• To take the burden off the awfully loaded Courts.

How are Administrative Tribunals different from Courts?

• They have experts as judges.
• They are not obligated to follow the cumbersome Procedures prescribed in the CPC and CrPC.
• The legal profession does not have a monopoly of representation here.
• Faster relief and speedy justice is one of the founding objectives

Some reforms to Improve the Administrative Tribunals

• It must be multi-member.
• fair appointments must be ensured.
• membership should be diverse.
• Must follow the Principles of Natural Justice.
• Lack of accountability should be addressed. 
• The whole idea behind them was speedy justice as they do not have to follow the cumbersome procedures of CPC and CrPC. But lately, even in Tribunals we are witnessing the rise of formalism.

What is Neo-Despotism?

• For that we must first understand despotism. A despot is the one who has absolute power. In earlier times when all the power viz. legislative, executive and judicial were vested in the King, he was the despot and rule was referred to as despotism.
• Later as we moved towards democratization of governance, we had separation of powers as prescribed by Mostesquieu.
• But today again the executive is gaining legislative power in the form of delegated legislation.
• And the executive is gaining judicial power in the form of Administrative Tribunals.
• Here we observe that all the powers are converging to the executive wing. This phenomenon is referred to as Neo-Despotism.