Administrative Action Based On Policy

Administrative action based on policy
According to the principle of separation o f powers, general admi

nistration is the business of the executive and neither o f the legislature
nor of the judiciary. In the ultim ate analysis, the executive being
responsible to Parliam ent every act of adm inistration is subject to the
general control o f Parliam ent. This merely means that the executive is
responsible to P&rliament. It rarely means that Parliam ent actually
interferes with particular actions of adm inistration. While the execu
tive must act according to law, each of its actions is no t subject to the
control of Parliam ent. While the nature o f parliam entary control is
general, the nature of judicial control by its very nature is restricted to
individual cases. If, however, every act o f adm inistration were subject
to judicial control, the whole process of adm inistration would be liable
to be subject to judicial scrutiny. This would result in government by
the judiciary rather than by the executive. This would be contrary to
the principle o f separation o f powers. U nder no system of govern
m ent, therefore, can judicial control covcr the whole field of adminis
tration.
The essence of government is to form ulate policies based on general
principles and to carry on adm inistration according to such policies.
As a rule, policy-making is not directed to any individual. is not,
therefore, subject to judicial control. The m ost famous instance of the
distinction between the tw o aspects o f adm inistration, namely, a decision
on the policy-making level and a decision on the operational level is
furnished by the decision o f the U.S. Supreme C ourt in Dalehite v.
United States.'' T he government of the U nited States decided at the
policy level to m anufacture fertilizer involving the use o f a certain
ADMINISTRA.TIVB LA.W 3 4 1
6. J.A.G. Griffith and H. Street, Principles o f Administrative Law 149 (5th e j.
1973).
7. 346 U.S. 15 (1953).
............. 'combustible material. In 1947 this combustible fertilizer exploded on
board of a ship docked at Texas city causing widespread damage to
person and property. Under the U.S. Federal Torts Claims Act, 1946,
any claim ... based upon the exercise or performance or the
failure to exercise or perform a discretionary function or duty
on the part of a Federal agency or an employee of the
G overnm ent...is withheld from jurisdiction of the courts.®
The Supreme Court held that the U.S. government was no t liable for
the explosion which was caused by the negligence o f the various
government agencies and officials in planning, m anufacturing and
storing the fertilizer and iighting the explosion. The really crucial part
of the holding o f the court applies only to the government policy
decision to manufacture fertilizer involving the use of the com bustible
m aterial which was taken by the government at the planning level. F or
any mistake of judgm ent in planning the government is not liable to any
particular individual. Such a decision at the planning or policy level
is, therefore, immune from judicial control. This is to be contrasted
with the government decisions which relate to the operation o f the
ordinary executive action of the government or any of its officers not
involving planning or policy-making. In 1955, therefore, in Indian
Towing Company v. United States o f America,^ the Supreme C ourt held
the government liable for damage resulting from failure of a lighthouse
light due to negligent maintenance of the lighthouse by the coast guard.
Again in 1957 the court held government liable for negligence in the
fighting of a forest fire by the U.S. Forest Service in Rayonier Incorpo
rated v. United States o f America.^'' According to the English com m on
law, the state was immune from legal proceedings. The liability of the
state for the tortious acts o f its servants, subject to some exceptions,
iow ever, replaced the common law in England by the Crown
Proceedings Act, 1947 and in the U.S.A. by the Federal Torts Claims
Act, 1946. The British rule in India was initiated by the East India
Company, which had a dual character, namely, (a) that of a trading
corporation, and (b) that of a sovereign. In the absence of any legisla
tion abolishing the sovereign immunity of the state in India, the
criterion of the liability of the state in India is the same as it was with
the East India Company. The company was held liable for its ordinary
acts, but opinion was expressed that it would not be liable for its
sovereign acts, The law as developed in India by the Suprem e C ourt
8. Emphasis added.
9, 35U .S. 61 (1955).
10. 352 U .S. 315 (1957).
342
the INDIAN LEGAL SYSTEMdecisions in Siaie o f Rajasthan v. Vidyawaii^'' and Kasturi Lai v. State o f
U ttar Pradesh^^ is th at the state would be liable for the acts of its
servants in perform ing non-governmental functions. The difficulty with
this distinction is in the drawing of the line between governm ental and
non-governmental functions. It would appear that the governmental
functions proper are those which were perform ed by the state
originally, such as adm inistration o f law and order, jiistice and the
defence of the country. With the growth o f its regulatory activities, the
state has taken upon itself numerous other functions, which were or
could have been perform ed formerly by private persons. For instance,
the Indian railways, though operated by the state, perform the ordi
nary function o f transport which cannot be said to be a governmental
function as such. The government would, therefore, be liable for the
acts o f the railway employees. Between these two ends, there would
be numerous other functions performed by the government, It would
have to be decided on the facts of each case, whether the particular
function cannot be regarded as a sovereign function or would have to
be regarded as a non-sovereign function. Accordingly as it is classified
as one or the other, the question of the liability o f the government
would have to be decided. The immunity o f the state for the per
formance of sovereign functions is, no doubt, based on the original
theory of the immunity of the state from all legal liability. In their
very first report^®“ the Law Commission pointed out the untenability of
the distinction between sovereign and non-sovereign functions of the
government and the desirability of the abolition of the im m unity o f the
state in tune w ith the trend o f modern legal thought as reflected in the
legislation passed in the U nited Kingdom and in the U nited States.
T he report of the Law Commission has not yet been implemented. It
is to be hoped th at the legislation to implement the report would bring
the situation in India in line w ith that now obtaining in the United
Kingdom and the United States in this resp ect^
Other typical policy functions not directed against individuals
include foreign policy o f the government, recognition o f foreign states
and governments and treaties entered into by government with foreign
states. For instance, the extent of the territory of India under article 1 o f
the Constitution, when it is n o t patent, may be ascertained by the courts
ADMINISTRATIVE LAW
343
11. (1962) Supplement 2, S-C.R. 989.
12. (1965) 1 S.C.R . 375.
12a. Law Commission o f India : First Report (Liability o f the State in Tort);
1956.3 4 4 THE INDJAN LEGAL SYSTEM
from the government inasmuch as this is a political m atter determ inable
by the government as a poJicy function.'®

Administrative Action Based On Policy

Uploaded by

Copyright:

Available Formats

Administrative Action Based On Policy

Uploaded by

Document Information

Original Title

Copyright

Available Formats

Share this document

Share or Embed Document

Sharing Options

Did you find this document useful?

Is this content inappropriate?

Copyright:

Available Formats

Administrative Action Based On Policy

Uploaded by

Copyright:

Available Formats

Administrative action based on policy

According to the principle of separation o f powers, general admi

You might also like