Administrative law

Sl no. Title Page no.

1. Origin of Administrative Law 2

2. Constitutional and Administrative Law 2

3. Definitions of Administrative Law 3

4. Nature and Scope of Administrative Law 5

5. Red Light Theory and Green Light Theory 7

6. Historical development of administrative law in India adapted from 8
other countries
7. Administrative Law after Second World War 9
8. Droit Admininstratiff 10
9. Relationship between Administrative Law and Constitutional Law 11
10. Indian Context of Constitutional Law and administrative law 12
11. Parliamentary supremacy of administrative law 13
12. Global administrative law 14
Origin of Administrative Law
Administrative law is not a codified, written or well-defined law like the Contract Act, Penal Code, Transfer of Property Act,
Evidence Act, Constitution of India, etc. It is essentially an unwritten, uncodified or ‘Judge-made’ law. It has developed slowly in
the wake of factual situations before courts. In a welfare State, administrative authorities are called upon to perform not only
executive acts, but also quasi-legislative and quasi-judicial functions. They used to deem the rights of parties and have become
the ‘Fourth branch’ of Government, a ‘Government in miniature’. Legal scholars have compared administrative law to the rise of
equity. It has its origin in need and necessity in protecting personal rights and in safeguarding individual interests. In few legal
systems, there are statutes laying down rules, principles and procedures to be followed by administrative agencies. But even in
absence of specific enactments dealing with a particular situation, certain fundamental rules, basic principles and minimum
requirements of law are well settled and all authorities are bound to observe them. A person adversely affected by any action of
an administrative authority has right to challenge such action in an appropriate body or a court of law.

In USA the following are the sources of administrative law:

• Administrative Procedure Act, 1893

• Statutory Instrument Act, 1946

• Federal Tort Claim Act, 1947

• The Tribunals and Enquiries Act, 1958

• The Parliamentary Commissions Act, 1962

Apart from these legislations, the Constitution of USA is also considered as a source of administrative law in addition to the
judgments delivered by the U.S Supreme Court. 13 In the UK, since there is no written Constitution, the bulk source of
administrative law is derived from the decisions delivered by the superior courts, the customary practices that are followed in
the course of administration and so on. In India there is a written Constitution which is considered as a grund norm.

Till today there is no legislation enacted either by the parliament or state legislature exclusively on administrative law. In the
absence of legislations, the main sources of administrative law are rules, regulations, orders, notifications, bye-laws, schemes,
governmental resolutions, memorandums, department circulars etc. There are also legislations which provide for the
establishment of tribunals. For example, the Industrial Disputes Act, 1947 provides for the establishment of national tribunals,
industrial tribunals and labour courts. There are other legislations for establishing special courts, but all these legislations provide
different procedures and different powers for functioning of the tribunals. Therefore, for the purpose of attaining uniformity in
maintaining procedures and for prescribing powers, there is a need for comprehensive legislation on administrative law in India.

Constitutional Law and Administrative Law

Sometimes, a question is asked as to whether there is any distinction between Constitutional law and Administrative law. Till
recently, the subject of administrative law was dealt with and discussed in the books of Constitutional law and no separate and
independent treatment was given to it. In many definitions of Administrative law, it was included in Constitutional law.

Though in essence Constitutional law does not differ from administrative law in as much as both are concerned with functions of
the Government and both are a part of public law in the modern State and the sources of both are the same and they are thus
inter-related and complementary to each other belonging to one and the same family. Strict demarcation, therefore, is not
possible, yet there is a distinction between the two. According to Maitland, while Constitutional law deals with structure and the
broader rules which regulate the functions, the details of the functions are left to Administrative law.

According to Hood Phillips, “Constitutional law is concerned with the organization and functions of Government at rest while
administrative law is concerned with that organization and those functions in motion.” 14 But the opinion of English and
American authors is that the distinction between constitutional law and administrative law is one of degree, convenience and
custom rather than that of logic and principle. It is not essential and fundamental in character. Keith rightly remarks: “It is
logically impossible to distinguish administrative law from Constitutional law and all attempts to do so are artificial.”

India has a written Constitution. While Constitutional law deals with the general principles relating to the organization and power
of the legislature, executive and judiciary and their functions inter se and towards the citizen. Administrative law is that part of
Constitutional law which deals in detail with the powers and functions of the administrative authorities, including civil services,
public departments, local authorities and other statutory bodies. Thus, while Constitutional law is concerned with Constitutional
status of ministers and civil servants, administrative law is concerned with the organization of the service and the proper working
of various departments of the Government.

Definitions of Administrative Law

Law
It is indeed difficult to evolve a scientific, precise and satisfactory definition of Administrative Law. Many jurists have made
attempts to define it, but none of the definitions has completely demarcated the nature, scope and content of administrative
law. Either the definitions are too broad and include much more than necessary or they are too narrow and do not include all
essential ingredients. For some it is the law relating to the control of powers of the government. The main object of this law is to
protect individual rights. Others place greater emphasis upon rules which are designed to ensure that the administration
effectively performs the tasks assigned to it. Yet others highlight the principal objective of Administrative Law as ensuring
governmental accountability, and fostering participation by interested parties in the decision-making process.

Administrative law besides touching all branches of government, touches administrative and quasi administrative agencies that is
corporations, commissions, universities and sometimes even private organizations. Furthermore, administrative law is made up
of not only of legislative and executive rules and a large body of presidents but also of functional formulations, for every exercise
of discretion forms a rule for future action.

Early English writers did not differentiate between administrative law and Constitutional law and, therefore, the definition they
attempted was too broad and general.

In administrative law, the term Administration is used in its broadest possible sense and covers within its reach.

1. All executive actions, its programs and policies

2. All administrative aspects of parliament and judiciary
3. All actions of state like actors (agency and instrumentality of state)
4. All actions of non-state actors (private entities) exercising public functions.

a) Ivor Jennings Definition of Administrative Law

Sir Ivor Jennings defines administrative law as the law relating to administration. It determines the organization, powers and
duties of administrative authorities. This formulation does not differentiate between Administrative and Constitutional law. It
lays entire emphasis on the organization, power and duties to the exclusion of the manner of their exercise.For example,
administrative law is not concerned with how a minister is appointed but only with how a minister discharges his functions in
relation to an individual or a group. How the minister of housing and rehabilitation is appointed is not the concern of
administrative law, but when this minister approves a scheme for a new township, which involves the acquisition of houses and
lands of persons living in that area, questions of administrative law arise. Sir Ivor Jennings formulation also leaves many aspects
of administrative law untouched, especially the control mechanism.

b) A.V. Dicey’s Definition of Administrative Law

He did not recognize the independent existence of administrative law. He defined administrative law as denoting that portion of
a nation's legal system which determines the legal status and liabilities of all state officials, which defines the rights and liabilities
of private individuals in their dealings with public officials, and which specifies the procedure by which those rights and liabilities
are enforced. The definition is narrow and restrictive in so far as it leaves out of consideration many aspects of administrative
law, Dicey opposed the French droit admininstratiff and therefore his formulation mainly concentrated on judicial remedies
against state officials. Therefore, this definition excludes the study of every other aspect of administrative law.

The American approach is significantly different from the early English approach, in that it recognized administrative law as an
independent branch of the legal discipline.

c) Kenneth Culp Davis’ Definition of Administrative Law

According to Kenneth Culp Davis, Administrative law is a law that concerns the powers and procedure of administrative agencies,
including especially the law governing judicial review of administrative action. Davis includes the study of administrative
rulemaking and rule adjudication but excludes rule application which according to him, belongs to the domain of public
administration. In one respect, this definition is proper as it puts emphasis on procedure followed by administrative agencies in
exercising their powers. It does not include the enormous mass of substantive law produced by the agencies. An administrative
agency, according to Davis, is a governmental authority, other than a code and other than a legislative body, which affects the
rights of private parties through either adjudication or rulemaking.

The difficulty in accepting this definition however, is that it does not include many non-adjudicative and yet administrative
functions of the administration which cannot be characterized as legislative or quasi-judicial. Another difficulty with this
definition is that it puts an emphasis on the control of the administrative functions by the judiciary, but does not study other
equally important controls, example parliamentary control or of delegated legislation, control through administrative appeals or
revisions and the like.

d) Garner’s Definition of Administrative Law

Garner also adopts the American approach advocated by Casey Davis.

According to him, administrative law may be described as those rules which are recognized by the courts as law and which relate
to and regulate the administration of government.

e) Wade Definition of Administrative Law

According to Wade, administrative law is the law relating to the control of governmental power. According to him the primary
object of administrative law is to keep the powers of the government within their legal bounds so as to protect the citizens
against their abuse. The powerful engines of authority must be prevented from running amok. Undoubtedly this definition places
considerable emphasis on the object of administrative law by touching the heart of the subject. It does not, however, define the
subject. It also does not deal with the powers and duties of administrative authorities nor with the procedure required to be
followed by them.

f) Griffith and Street Definition of Administrative Law

According to Griffith and Street, the main object of administrative law is the operation and control of administrative authorities.
It must deal with three aspects , viz

1. What sort of power does the administration exercise?

2. What are the limits of those powers?

3. what are the ways in which the administration is contained within those Limits?

g) Indian Law Institute Definition of Administration Law

According to the Indian law Institute, the following two aspects must be added to have a complete idea of present-day
administrative law

1. what are the procedures followed by the administrative authorities?

2. What are the remedies available to a person affected by administration?

h) Jain and Jain Definition of Administrative Law

According to Jain and Jain, Administrative law deals with the structure, powers and functions of the organs of administration, the
limits of their powers, the methods and procedures followed by them in exercising their powers and functions, the methods by
which their powers are controlled including the legal remedies available to a person against them when his rights are infringed
by their operation.

Administrative law, according to this definition, deals with four aspects.

• Firstly, it deals with composition and the powers of administrative authorities

 • Secondly, it fixes the limits of the powers of those authorities.
• it prescribes the procedure to be followed by these authorities in exercising such powers
• it controls these administrative authorities through judicial and other means.

The unenviable diversity in definitions of the term administrative law is also due to the fact that a vary Administrative law
specialist tries to lay more emphasis on any one particular aspect of the whole administrative process, which according to his
own evolution desires singular attention.

i) Prof. Upendra Bakshi Definition of Administrative Law

Professor Upendra Bakshi of India lays special stress on the protection of the little man from the arbitrary exercise of public
power. According to him administrative law is a study of the pathology of power in a developing society. He defines
administrative law as that portion of law which controls the abuse of powers by the administrative authorities so as to protect
the rights of individuals. On an analysis of the above definitions, it may be submitted that there is no comprehensive and
universally accepted definition of administrative law.

For our purposes, we may define administrative law as that branch of public law which deals with the organization and powers of
administrative and quasi administrative agencies and prescribes principles and rules by which an official action is arranged and
revealed in relation to individual liberty and freedom. Thus defined, administrative law attempts to regulate administrative
space, domestic and global, in order to infuse fairness and accountability in the administrative process necessary for securing
equity and inclusiveness in the domestic and world order. It can be concluded that administrative law is that portion of law which
determines the organization, powers and duties of administrative authorities, administrative agencies, quasi administrative
authorities and the law that governs the judicial review of administrative activities.

Nature & Scope of Administrative Law

Nature of Administrative Law
Administrative Law deals with the powers of the administrative authorities, the manner in which the powers are exercised and
the remedies which are available to the aggrieved persons, when those powers are abused by these authorities. As discussed
above, the administrative process has come to stay and it has to be accepted as a necessary evil in all progressive societies,
particularly in a welfare state, where many schemes for the progress of society are prepared and administered by the
government. The execution and implementation of this programme may adversely affect the rights of citizens. The actual
problem is to reconcile social welfare with the rights of individual subjects. As has been rightly observed by Lord Denning:
“Properly exercised, the new powers of the executive lead to the Welfare State; but abused they lead to the Totalitarian State.”

The main object of the study of administrative law is to unravel the way in which these administrative authorities could be kept
within their limits so that the discretionary powers may not be turned into arbitrary powers.

Schwartz divides Administrative Law in three parts;

• The powers vested in administrative agencies;

• The requirements imposed by law upon the exercise of those powers; and
• Remedies available against unlawful administrative actions.

It is a harsh fact of life that phenomenal growth of administrative power as a byproduct of an intensive form of government, do
necessary for development and growth, at the times spells negation of people’s rights and values. Though administrative law
may not be concerned with the substantive law as such, yet, as Griffith and Street themselves have somewhat recognized, a
study of substantial law becomes necessary for appreciating the powers of the administration and for controlling the same. For
instance, whether the principles of natural justice are to be observed by an authority or not depends, to a great extent, upon the
kind of action it is empowered to take, and to find this, one will need to look into the statute under which it functions. Again,
whether the authority has abused its power has to be decided with reference to the substantive provisions.

Here comes the need, importance and purpose of administrative law. Administrative law thus becomes Dharma which conduces
to the stability and growth of society, maintenance of a just social order, and welfare of mankind by reconciling power with
Liberty. It seeks to channelize administrative powers to achieve the basic aim of any civilized society, that is, growth with Liberty.
Thus, Administrative law goes beyond legalism and the presence a principled regulation of administrative space, whether
domestic or global, which can be practically regulated for the expansion of human freedoms.

Therefore, today, Administrative law represents the way of conceptualizing and articulating a new domestic and global social
economic order. Without a good system of administrative law any society order dies because of its own administrative weight
like a black hole which is a dying neutron star that collapses due to its own gravity. Administrative law, therefore, becomes that
body of a reasonable limitations and affirmative action parameters which are developed and operationalized by the legislature
and the courts to maintain and sustain a Rule of law Society.

Thus, four basic bricks of the foundation of any administrative law may be identified as

1. Checking abuse of administrative power

Administrative law is a law, but it is not a law in the lawyer’s sense of the term like property law or contract law. It is not in the
realist sense of the term which includes statute law, administrative rulemaking, precedents, customs, administrative directions,
etc. It also includes the study of something which may not be termed law in the true sense of the term such as administrative
circulars, policy statements, memorandum and resolutions, etc. Besides this, it includes within its study higher law as well, like
the principles of natural justice. However, in India, administrative law, basically and wholly, it remains a judge made law and,
thus, suffers from the frailties and benefits from the strength of judicial lawmaking. Consequently, personal and institutional
constraints make the growth of administrative law vulnerable to judicial meanderings and tentativeness.

2.Ensuring citizens an impartial determination of their disputes by officials

Administrative law is a branch of public law in contradiction to private law which deals with the relationships of individuals inter-
se. Therefore, Administrative law primarily deals with the relationship of individuals with the organized power.

3.Protecting citizens from an unauthorized encroachment on their rights and interest

Administrative law deals with the organization and powers of administrative and quasi administrative agencies. The stress on the
study of organization is only to the extent that it is necessary to understand the powers, characteristics of actions, procedure for
the exercise of those powers and the control mechanism provided therein. The study includes not only administrative agencies
but also the quasi-administrative agencies such as corporations, autonomous agencies, individuals, and civil society institutions,
both national and global, and the like operating in public space and exercising public functions.

4. Making those who exercise public power accountable to the people

Administrative law includes the study of the existing principles and also of the development of certain new principles which
administrative and quasi administrative agencies must follow while exercising their powers in relation to individuals that is the
principles of natural justice, reasonableness and fairness.

5. Administrative Law primarily concerns itself with the official action which may be

a. Rulemaking or quasi legislative action

b. Quasi-judicial action

c. Ministerial action or pure administrative action

6. One of the main thrusts of the study of administrative law is on the procedure by which the official action is original. If the
means are not trustworthy, the end cannot be just. There is a bewildering variety in the procedure which the administrative
agencies follow in reaching an action. Such procedure may be laid down. a. In the statute itself under which the administrative
agency has been created b. In the statute itself under which the administrative agency has been created in the separate
procedure code which a very administrative agency is bound to follow that is Administrative Procedure Act, 1946 in the USA and
Tribunals and Inquiries Act, 1958 in England. However, in many more cases either the administrative agency is left free to
develop its own procedure or it is required to render its actions according to the minimum procedure of the principles of natural
justice.

7. Administrative law also includes within its study the control mechanism by which the administrative agencies are kept within
bounds and made effective in the service of the individuals. This control mechanism is technically called the review process.
8. The study of administrative law is not an end in itself but a means to an end. The focal point of the study of administrative law
is the re consolation of power with liberty. When the administrative process started rising after the death of laissez faire at the
birth of the 20th century, the stress on the study of administrative law was on circumscription of administrative powers. But now
when the administrative process has come to stay, the emphasis has shifted to the regulation of administrative powers.

Scope, Content and Ambit of Administrative Law

A satisfactory and a proper formulation to define the scope, content and ambit of administrative law appears to be as follows:

Administrative law deals with the structure, powers and functions of the organs of administration, the limits of their powers, the
methods and procedures followed by them in exercising their powers and functions, the methods by which their powers are
controlled including the legal remedies available to a person against them when his rights are infringed by their operation.

This statement has four limbs

1. The first limb deals with the composition and powers of organs of administration. This proposition is subject to the
qualification stated earlier that the topics falling under the public administration or to be excluded. The term organs of
administration have been used in a broad sense and includes all kinds of public or administrative authorities.

2. The second limb refers to the limits on the powers of administrative authorities. These limits may either be expressed or
implied. Express limits are laid down in the provisions of the parent statute. Implied limits or derived by the courts through the
interpretative process. In doing so the courts play a very creative role because expressly limits are not usually laid down in
statutory provisions and, therefore, the courts have to imply some limits on the administration.

3. The third limb refers to the procedures used in exercising those powers. The study of administrative law of today seeks to
emphasize not only the extraneous control but also the processes and procedures which the administrative authorities
themselves follow in the exercise of their powers. Evolving of fair procedures is a way of minimizing the abuse of vast
discretionary powers conferred on the administration. For example, natural justice forms a significant component of
administrative process today and in many situations, codes apply the concept of fairness.

4. The fourth limb refers to the control of the administration through judicial and other means. Under this head would fall
judicial as well as extra judicial means of controlling the administration, example Tribunals, Ombudsman etc. It also includes a
redressal of individual grievances against the administration. This aspect of administrative law is based on two basic postulates,
namely

a. Power is conferred on the administration by law

b. No power is absolute and uncontrolled howsoever broad the power conferred.

The Concept of Welfare State with respect to Administrative Law

A welfare state is a system where the government plays a significant role in promoting the social and economic well-being of its
citizens. This involves providing social security through programs like:

• Unemployment benefits
• Public healthcare
• Welfare payments
• Education subsidies

Role of Administrative Law

Administrative law governs the activities of government agencies responsible for implementing these welfare programs. It
ensures these agencies function fairly, efficiently, and within the legal framework established by the legislature. Here are some
key areas where administrative law comes into play:

• Rulemaking: Welfare programs often involve creating detailed rules to determine eligibility, benefits, and application
processes. Administrative law dictates how these rules are formulated, ensuring public participation and transparency.
 • Decision-Making: Agencies make decisions on who qualifies for benefits and the amount they receive. Administrative
law guarantees fair procedures, allowing individuals to appeal decisions they believe are wrong.
• Accountability: Administrative law ensures government agencies are accountable for their actions. Citizens can
challenge agency decisions through judicial review processes if they believe the law wasn't followed properly.

Examples

• A citizen denied unemployment benefits can appeal the decision through an administrative hearing process.
• Administrative law might require agencies to publish clear guidelines on eligibility criteria for welfare programs.
• Courts can review agency actions to ensure they comply with anti-discrimination laws when distributing benefits.

In essence, administrative law acts as a bridge between the ideals of a welfare state and their practical implementation. It
safeguards fairness, transparency, and accountability in the delivery of social programs.

Red Light Theory and Green Light Theory

The red light theory and green light theory are two contrasting perspectives on the role of courts in administrative law, which is
the body of law dealing with the operation of government agencies. Both theories aim to uphold the rule of law, but they differ
in their approach to balancing efficiency and accountability.

Red Light Theory:

• Focuses on Control: This theory emphasizes judicial control over administrative actions to prevent abuse of power.
Courts act as a check on government agencies, ensuring they stay within legal boundaries and protect individual rights.
• Judicial Supremacy: Red light theorists believe courts play a crucial role in upholding the rule of law. They advocate for
a more interventionist approach by courts in reviewing administrative decisions.
• Suspicious of Government: This theory views government actions with a critical eye, assuming a potential for
overreach. Courts are seen as the primary safeguard against unchecked power.

Green Light Theory:

• Focuses on Efficiency: This theory prioritizes the smooth functioning of the administrative process. Courts should
intervene minimally to avoid hindering government agencies from fulfilling their duties effectively.
• Alternative Controls: Green light theorists believe other mechanisms, besides judicial review, can hold administrations
accountable. This might include legislative oversight or independent tribunals.
• Government as Partner: This theory views the government as acting in good faith, aiming to achieve legitimate policy
goals. Judicial review is seen as a necessary but occasional tool to ensure actions stay within legal bounds.

Key Differences:

• Intervention: Red light favors active judicial oversight, while green light prefers minimal intervention.
• Presumption of Good Faith: Red light is more suspicious of government actions, while green light assumes good
intentions.
• Role of Law: Red light sees law as superior to politics, while green light views them as interconnected.

In reality, most jurisdictions don't strictly adhere to one theory or the other. They tend to find a balance between judicial review
and administrative efficiency. The specific approach may vary depending on the nature of the administrative action and the
potential impact on individual rights.

Historical development of administrative law in India adapted from other countries

The robust system of administrative law in India boasts a rich history, woven from the threads of its own ancient
traditions and influences from prominent legal systems like those of the United Kingdom, the United States, and
France. This essay explores the historical development of Indian administrative law, highlighting the key
contributions of these foreign legal systems.

Ancient Foundations:

While the formal concept of administrative law emerged during British rule, India possessed a centralized
administrative structure as early as the Mauryan and Gupta empires. The principle of "Dharma" guided these
administrations, emphasizing ethical conduct and ensuring a degree of accountability. This emphasis on fairness and
adherence to a moral code laid the groundwork for the development of a system that would later regulate
administrative actions.

The British Legacy:

The arrival of the British East India Company marked a turning point. The company's expanding power necessitated a
more structured administrative framework. The British introduced a plethora of Acts and statutes regulating various
aspects of public life, including health, safety, and transportation. This emphasis on codified laws and regulations
formed the bedrock of modern Indian administrative law.

Influences from the UK:

The British system, built on the principle of parliamentary sovereignty, provided a model for India's nascent
administrative law. The concept of delegated legislation, where Parliament empowers the executive to make
subordinate rules, was adopted. However, unlike the UK, India's Constitution became the supreme law, and judicial
review, a cornerstone of British administrative law, evolved to ensure administrative actions were within the bounds
of the Constitution and the law.

Lessons from the US:

The American influence on Indian administrative law is less direct but significant. The concept of natural justice,
which guarantees fair procedures in administrative decision-making, has its roots in American jurisprudence.
Additionally, the idea of independent regulatory commissions, prevalent in the US, found some resonance in India's
public corporation model established under acts like the Bombay Port Trust Act.

French Inspiration:

French administrative law, with its emphasis on a strong, centralized executive and a distinct system of
administrative courts for resolving disputes, offered a different perspective. While India did not adopt a separate set
of administrative courts, principles like proportionality, which ensures administrative actions are balanced and not
excessively intrusive, have influenced the Indian judicial approach to administrative law.

Post-Independence Evolution:

Since independence, India's administrative law has continued to evolve. The Constitution, with its focus on
fundamental rights and the rule of law, has been a driving force. Landmark judgements by the judiciary have further
refined the scope of judicial review and established principles like procedural fairness and legitimate expectation.

Conclusion:

India's administrative law is a unique blend of its own historical legacy and influences from established legal systems.
By adapting concepts from the UK, US, and France, India has built a framework that balances the need for effective
administration with the protection of individual rights. As India continues to develop, its administrative law will
undoubtedly undergo further change, but its core principles of fairness, accountability, and the rule of law will
remain its guiding lights.
Administrative Law after Second World War

The Second World War significantly impacted the landscape of administrative law in India. Prior to the war, the focus
was on establishing a basic framework for government functioning. However, the war necessitated a vast expansion
of executive power, raising concerns about potential abuses. This essay explores the transformation of
administrative law in India after the war, highlighting the tension between efficiency and individual rights, and
analyzing relevant case laws that emerged in response.

The war demanded swift and decisive action from the government. The Defense of India Act (1939) granted the
executive broad powers to regulate essential supplies, control movement, and even detain individuals without trial.
This legislation, while crucial for wartime mobilization, also concentrated immense power in the hands of the
executive with limited judicial oversight.

The potential for arbitrary exercise of power under the Defense of India Act spurred the judiciary to develop
safeguards. Landmark cases like King Emperor v. Benoari Lal Sharma (1945) established the principle of
proportionality. The court ruled that even during wartime, restrictions imposed by the executive must be reasonable
and proportionate to the objective being achieved.

Another crucial development was the doctrine of "procedural fairness". In Sheela Devi v. Union of India (1959), the
court held that natural justice principles, such as the right to be heard, applied to administrative actions. This
ensured that individuals facing adverse decisions by the government could present their case and receive a fair
hearing.

India's independence in 1947 further propelled the evolution of administrative law. The newly formed government
actively pursued social and economic development, necessitating a robust administrative apparatus. However, the
specter of unchecked power remained a concern.

The Constitution of India (1950) enshrined fundamental rights and empowered the judiciary to enforce them
through judicial review. This provided a strong legal framework to challenge arbitrary administrative actions.
Additionally, Parliament enacted laws like the Administrative Procedures Act (1950) to ensure transparency and
fairness in administrative decision-making.

Despite significant progress, challenges persist. Delays in judicial proceedings can render remedies ineffective.
Further, the proliferation of specialized tribunals with varying degrees of independence necessitates constant
evaluation.

Droit Admininstratiff
It is the French Administrative Legal System which means a body of rules, which determines the organisation, powers
and duties of the public administration and regulates the relation of the administration with the citizens of the
country. Droit Administrative does not represent the rules and principles enacted by the Parliament. Whereas, in
case of India, we see that the system is the representation of the rules and principles enacted by the Parliament or
Legislature. It contains the rules developed by the administrative courts which regulates the relationship between
public servants and citizens, public servants and government and public servant and public servant.

Historical Background of Droit Admininstratiff

Napolean Bonaparte was the founder of the Droit Admininstratiff. It was he who established the Counsel d’Etat
(Council of State) and passed on the ordinance. It has the following effects:

• Deprived law courts of their jurisdiction and the administrative matters.

• Another ordinance that such matters could be determined only by Counsell d’Etat.

Evolution of Droit Admininstratiff

During Louis XIV, the French Government was highly centralized and the executive authorities were arbitrary. Civil
courts could not control them. So, Droit Administratiff came into existence before 20th century. Napolean Bonaparte
overthrew the whole system and established court system.

Civil and criminal

courts (Azize & Court
of desassation)
two types of courts
Administrative Courts
(Counsell D’Etat Court
of the perfect)

Rules of Droit Administratiff

Rules relating to the administrative officials’ administrative officials and authorities. These are related to the
appointment and dismissal, status, salaries, duties etc. of the administrative officials.

Rules dealing with the operation of public services to meet needs of the citizens

These services may be operated either wholly by public officials or under the supervision of other agencies to
provide the public utility services.

Rules dealing with the administrative adjudication

This deals with the concept that if there is any adjudication done to a private citizen by the administrative authority,
it could be decided by the administrative courts. Here, Court D’Estat is the highest administrative authority.

Principles of Droit Admininstatiff

Principle 1

The power of the administration to act suo motto (on its own) and to impose its decisions directly on the subjects, to
make them obey it as a duty.

Principle 2

The power of the administration to take decisions and execute them ‘suo motto’. It may be exercised only within the
ambit of law. It prevents the arbitrariness of the individual liberties against any arbitrariness.

Principle 3

The existence of a specialised administrative jurisdiction.

Criticism of the droit admininstratiff

• There are special privileges for the government officials and other persons.

• All the person irrespective of the status should be subject to the ordinary court only.

• Everyone should be governed by the laws passed by the ordinary legislative organ of the state which is
completely missing in the administrative courts.

• It violates the modern provisions of the Rule of Law and Article 14 i.e. Equality in the eyes of law.
Relationship between Administrative Law and Constitutional Law
The relationship between the administrative law is not clearly marked out but the fact remains that the two are
overlapping in several aspects. There exists a relationship which is fundamental in with if one were to represent the
two branches of law in a Venn diagram, then both would have a common area known as the watershed area in the
administrative law.

So, we see that constitutional law and the administrative law are parts of the public law. Keith said that it is
impossible to distinguish administrative law and all the attempts to do so are artificial. Administrative law and
constitutional law overlap at certain place and the area is termed as watershed in the administrative law.

In India, in the watershed one can include the whole control mechanism provided in the constitution for the control
of the administrative authorities. These include Article 32, Article 136, Article 226, Article 300, Article 227, Article
311.

It may also include some administrative agencies to regulate a particular field i.e., Article 263 which creates the
inter-state council. Similarly, we have Article 280, Article 262, Article 315 and Article 324.

Similarities between the constitutional law and administrative law

• Both are species of public law. This in other words means that both deals with the government and
individuals and the relations among them and the institution of the government.
• Both deals with the distribution and the exercise of the governmental powers and functions. Where the
constitutional law ends, the administrative law begins.
• Both are concerned with imposing boundaries and the accountability on those that exercise the
governmental powers.
• Their application is founded on the constitutional study of the administrative law involves copious reference
of the constitutional law.
• Both of them are concerned with the human rights issues.
• Both of them rely on the statutes and case laws for their principles and operations.
• The principles of both are enforced by the same institutions i.e., courts, law enforcement agents etc.

Dissimilarities of the Administrative and Constitutional Law

Constitutional Law Administrative Law

According to Holland, constitutional law describes Administrative Law describes various organs of the
various organs at rest. government in motion.

According to Ivor Jennings, Constitutional law deals with

Administrative law deals with details.
fundamentals.
 Constitutional law is majoritarian. Administrative law is anti-authoritarian.

Constitutional law deals with general principles related to

Administrative law deals with functions, organisation,
the organs and organisation and powers of various
powers, and duties of the administrative authorities.
organs.

This deals with rights. It lays emphasis on the public needs.

It is the supreme law of land. It is subordinate to Constitutional law.

The Indian Context of Constitutional Law and Administrative Law

The Constitution of India serves as the supreme law, outlining the framework of the government, fundamental rights
of citizens, and the distribution of power between the Centre and States. Articles like 13 (prohibition of arbitrary
action), 14 (equality before law), and 21 (protection of life and liberty) form the bedrock for individual rights.
However, the Constitution itself cannot micromanage every aspect of governance. This is where Administrative Law
steps in.

Administrative Law governs the exercise of power by the executive branch, ensuring it functions within the
boundaries established by the Constitution. It deals with concepts like natural justice (fairness in decision-making),
proportionality (balancing interests), and procedural safeguards. Landmark cases like Maneka Gandhi v. Union of
India (1978) exemplify this. The Supreme Court, in this case, expanded the scope of Article 21 (Right to Life and
Liberty) to include procedural fairness, ensuring arbitrary executive actions wouldn't infringe upon fundamental
rights.

The Constitution also empowers Parliament to delegate its legislative power to the executive through a process
called delegated legislation. However, this delegation has limitations. The case of Indira Nehru Gandhi v. Raj Narain
(1975) illustrates this. Here, the Court struck down an amendment that sought to shield the Prime Minister's election
from judicial review, highlighting that essential legislative functions cannot be delegated.

The power of judicial review, enshrined in Articles 32 and 226, is another crucial link between the two disciplines.
Courts can declare laws or executive actions unconstitutional if they violate fundamental rights or exceed delegated
powers. The Kesavananda Bharati v. State of Kerala (1973) case established the "basic structure doctrine," which
states that the Parliament cannot amend the Constitution in a way that destroys its fundamental character. This
doctrine ensures the Constitution retains its core principles even in the face of amendments.

Parliamentary Supremacy of the Administrative Law

The concept of parliamentary supremacy, where the legislature holds the ultimate law-making authority, finds itself
in a fascinating dance with judicial review in India's legal system. This essay will explore the relationship between
these two principles in the context of administrative law, highlighting the limitations placed on parliamentary
supremacy and the role of judicial review in ensuring administrative accountability.

Unlike the UK, which adheres to absolute parliamentary sovereignty, India's Constitution establishes a framework of
"constitutional supremacy." The Parliament, though endowed with vast legislative powers, cannot enact laws that
violate the fundamental principles enshrined in the Constitution. This principle was solidified in the landmark
Kesavananda Bharati case (1973), where the Supreme Court established the "basic structure doctrine." This doctrine
essentially states that Parliament's power to amend the Constitution is not unlimited, and any amendments that
alter the basic framework of the Constitution, like federalism, secularism, or judicial independence, would be
deemed unconstitutional.
Within this framework lies administrative law, a body of legal rules that governs the functioning of the executive
branch, including government agencies and departments. Here, the tension between parliamentary supremacy and
judicial review becomes apparent. On one hand, Parliament enjoys the power to enact laws that define the structure
and functions of administrative bodies. These laws often delegate significant rule-making authority to these bodies,
allowing them to create detailed regulations to implement the broader legislative framework.

However, Parliament's supremacy is not absolute. The judiciary, through the power of judicial review, can scrutinize
the actions of the administration to ensure they comply with the law and act within the bounds of their delegated
authority. The courts can declare administrative actions "ultra vires" (beyond legal power) if they are found to be
arbitrary, unreasonable, or violate fundamental rights. This judicial oversight serves as a vital check on potential
administrative excesses and ensures that the executive branch functions within the confines of the law.

This interplay between parliamentary supremacy and judicial review creates a dynamic balance. Parliament retains
the primary legislative authority, but its power is not unchecked. The judiciary acts as a vital safeguard, ensuring that
administrative actions adhere to the principles of legality, proportionality, and fairness.

Judicial review in India is not a process of overturning parliamentary will. The courts, by tradition, are hesitant to
strike down legislation. However, they can interpret laws in a way that is consistent with the Constitution and can
declare specific provisions within a law unconstitutional if they find them to be in violation of fundamental rights.

Global Administrative Law

The term "global administrative law" emerged in the 21st century to address the growing role of international
organizations in governance. It goes beyond traditional international law by encompassing activities of both national
and international entities. This new administrative space blurs the lines between national and international, public
and private spheres.

Global administration significantly impacts individuals, national democracy, and core values. However, its structure is
less formalized compared to domestic systems, lacking clear hierarchies and established legal frameworks.

Despite these challenges, law plays a crucial role in channeling and constraining administrative power. While global
administrative law mainly focuses on procedural fairness, critics argue it reinforces existing power structures by
prioritizing incremental change over fundamental reform.

Elements of Global Administrative Law

Global administrative law builds on three key ideas:

1. Transnational governance as administration: Certain aspects of global governance can be analyzed using
principles of administrative law.
2. Defining international administration and law: This field focuses on the legal rules applied to administrative
bodies within the international sphere.
3. Expanding the scope of "administration": Global administrative law now encompasses not just specific
decisions, but also the creation of general rules by these international bodies.

Possible Sources of Global Administrative Law

Global Administrative Law (GAL) draws from various legal sources to establish principles for international
organizations.
 • Public International Law: Treaties define procedures and rights within organizations. Customary law
emphasizes fairness and transparency, while general principles like due process help evaluate organizational
functions.
• National Administrative Law: Concepts like due process and the rule of law are adapted to ensure fairness,
transparency, and accountability in international organizations.
• Jus Gentium (Debate): Some scholars propose a revived jus gentium, a broader legal system encompassing
principles from various actors beyond just states. This could create a more inclusive global legal order.
• Autonomous Systems: The rise of complex systems generating their own rules poses a challenge.
Understanding how these internal norms can be incorporated into GAL is crucial.

The Emergent Content of Global Administrative Law

Global administrative law is a developing field that focuses on the legal principles and practices governing
international administrative bodies. It aims to ensure these bodies are accountable and operate with transparency,
participation, and fair decision-making.

Key Points:

• Rise of Global Governance: Increased globalization necessitates international cooperation to address issues
like climate change, trade, and health. Traditional state-centric law struggles to keep up.

• Focus on Accountability: Global administrative law seeks to hold international organizations and regulatory
bodies accountable for their decisions and actions. This includes ensuring:
o Transparency: Openness in decision-making processes.
o Participation: Allowing stakeholders to have a voice in rule-making.
o Reasoned Decisions: Decisions based on evidence and justification.
o Legality: Acting within the scope of their authority.
o Review Mechanisms: Having procedures to challenge decisions.
• Sources: Global administrative law principles are drawn from various sources like treaties, customary
international law, and the internal rules of international organizations.

Modus Operandi of Global Administrative Law

The modus operandi of GAL is necessarily decentralized and evolving. It relies on a combination of formal and
informal mechanisms, with actors at various levels working together to establish a framework for good governance in
a globalized world. It's a complex system, but one that's increasingly crucial in a world facing transnational
challenges.

• One key approach is the upward translation of domestic principles. National administrative laws often
emphasize fairness, participation, and accountability. GAL seeks to elevate these principles to the global
stage, ensuring that international organizations making decisions impacting individuals do so within a legal
framework.
• Another approach involves the downward projection of global norms. International agreements establish
standards on issues like environmental protection or trade. GAL works to ensure these norms are
incorporated into domestic administrative practices, creating a more consistent global regulatory
environment.
• International organizations (IOs) play a crucial role. They develop and implement regulations, often relying
on a mix of hard law (treaties) and soft law (guidelines). GAL examines the legitimacy and effectiveness of
these instruments, ensuring IOs act within their mandates and principles of good governance.
• Dispute settlement mechanisms are another key instrument. While there's no single global administrative
court, specialized tribunals and arbitration panels exist for specific sectors like trade or intellectual property.
These mechanisms provide avenues for challenging decisions made by IOs.
 • National courts also contribute. They can review national implementation of global norms and hold
domestic administrative bodies accountable for adhering to GAL principles.

Drawbacks of Global Administrative Law

Global Administrative Law (GAL) seeks to establish a framework for accountability and transparency in the growing
web of international organizations and regulations. While its goals are laudable, GAL faces significant challenges in
implementation, potentially undermining the very principles it aims to uphold.

One major drawback lies in the democratic deficit. GAL institutions often lack the legitimacy that comes from direct
public participation. Unlike national governments, they are not elected by the people they regulate. This raises
concerns about who sets the agenda, whose interests are prioritized, and how citizens can hold these bodies
accountable.

Another challenge is the patchwork of legal systems. GAL attempts to create a unified system for oversight, but
nations have diverse legal traditions and enforcement mechanisms. This can lead to confusion, inconsistency, and
difficulty in enforcing decisions across borders.

Furthermore, GAL grapples with the issue of sovereignty. Nations are traditionally hesitant to cede power to
international bodies. Implementing strong oversight mechanisms could be seen as an infringement on national
sovereignty, potentially leading to resistance and a reluctance to participate fully.

Enforcement also presents a significant hurdle. Unlike national courts, GAL institutions often lack the means to
directly compel compliance. Reliance on member states for enforcement can be problematic, as some may be
unwilling or unable to take action against powerful actors.

Finally, the rapid pace of globalization constantly throws new challenges at GAL. The ever-expanding scope of
international regulations necessitates a constantly evolving framework for oversight, raising questions about GAL's
capacity to adapt and remain effective.

In conclusion, while GAL offers a promising framework for addressing the complexities of global governance, its
effectiveness is hampered by challenges to its democratic legitimacy, fragmented legal systems, concerns over
national sovereignty, difficulties with enforcement, and the ever-changing nature of the globalized world. Finding
solutions to these drawbacks will be crucial for ensuring that GAL lives up to its potential as a force for accountability
and good governance in the 21st century.